Filed 2/17/22 Camacho v. Sunbelt Rentals CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Layne H. Melzer, Judge. Affirmed.

Hamrick & Evans, A. Raymond Hamrick, III, George Knopfler, Kenneth A. Kotarski and Jeff W. Poole for Defendant and Appellant.

Greenberg & Ruby and Emily A. Ruby for Plaintiffs and Respondents.

INTRODUCTION

Sunbelt Rentals, Inc., appeals from an order imposing more than $7,000 in discovery sanctions for failing to appear at a court-ordered deposition. Sunbelt argues, in essence, that the belated inclusion of document demands in the deposition notice excused it from having to appear. Sunbelt also contends respondent Ralph Camacho presented no evidence to support the amount of the sanctions imposed.

We affirm the order. Although Sunbelt is correct that the document demands were not included in the court’s order, refusing to appear at a deposition ordered by the court is discovery misuse and invites sanctions. Document production was a separate issue, and the court did not sanction Sunbelt for failing to produce documents. As to the evidentiary issue, the trial court had adequate evidence to support the amount of the sanctions, and, in any event, Sunbelt waived any objection to the adequacy of the evidence by failing to object.

FACTS

In December 2017, Camacho fell 12 feet from a scissor lift while he was installing glass on a Huntington Beach hotel building. The general contractor of the project had rented the lift from Sunbelt. Camacho sued the lift’s manufacturer, the general contractor, and Sunbelt.[1]

Included in discovery propounded by Camacho was a deposition notice for Jeff Stachowiak, Sunbelt’s national training safety director. Sunbelt moved for a protective order against his deposition, on the ground that he was a high-level employee and Camacho had to depose lower-level employees first. The court granted the protective order on those grounds.

Camacho then noticed the depositions of Sunbelt’s “Person(s) Most Knowledgeable” (PMK)[2] in eight categories – two of which were presentations given by Stachowiak entitled “Raise Your AWP IQ: Managing Your Aerial Work Platform Equipment” and “Safety Updates - JLG 1850SJ vs Genie SX180” – and the deposition of Stachowiak himself.[3] After meet-and-confer sessions were unsuccessful, Camacho applied ex parte to compel these depositions. The court denied the ex parte application and set the matter for a noticed hearing. After the hearing, the court ruled the PMK depositions could proceed. As to Stachowiak, the court ruled the prior protective order did not shield Sunbelt from producing a PMK on the subject of his presentations – but Camacho could not start with Stachowiak.

Camacho then renoticed the PMK depositions, condensing three prior notices into an all-purpose one. This time the notice included 62 categories of documents to be produced at the deposition. None of the prior PMK deposition notices had included document demands. The deposition date was June 1, 2020.

On May 26, 2020, Sunbelt filed a motion for a protective order regarding the document demands attached to the new deposition notice, with an initial hearing date in September. Sunbelt’s counsel appeared at the deposition site on June 1 and adjourned the deposition to seek a protective order. No witnesses attended the session. Camacho then filed a motion for sanctions against Sunbelt.

On August 6, 2020, the trial court heard both Sunbelt’s motion for protective order, which it denied, and Camacho’s motion for sanctions, which it granted in part. Camacho asked for over $16,000 in monetary sanctions against Sunbelt. The court initially awarded $7,785, which it reduced after the hearing to $7,193. It denied Camacho’s request for issue and evidence sanctions.

DISCUSSION

Sunbelt’s issues on appeal are of two types. First, it contends the trial court applied the wrong legal standard when it decided to impose sanctions. Second, the evidence presented did not support the amount of the sanctions awarded.

I. Legal Standard

Sunbelt contends the trial court did not evaluate the motion for sanctions under the correct legal standard, which is whether the party involved had “substantial justification” for its conduct. (Code Civ. Proc., §§ 2023.010, subd. (g); 2023.030, subd. (a).)[4] The standard does not require the party to be right; it simply requires a reasonable basis for the actions taken. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:1964, p. 8M-8.)

Sunbelt repeatedly argues it acted reasonably – and was therefore substantially justified – in refusing to produce witnesses for deposition because whether a party could include document demands in a PMK deposition notice, served after the court ordered attendance, when none had been included in prior notices is a “novel and/or unsettled legal issue” upon which there is no authority.

This may be so. But there is plenty of authority on what happens if a court order regarding discovery is disobeyed. (See, e.g., Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702-703; Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 877-878; MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 290.)

Sunbelt was ordered to go through with the PMK depositions. Refusing to do so qualifies as a misuse the discovery process (§ 2023.010, subd. (g)) and subjects Sunbelt to sanctions. (§ 2025.450, subd. (h).) Nothing about this sequence is novel or unsettled.

But the court’s PMK deposition order did not include a requirement to produce documents. Sunbelt was entitled to object to this addition to the notices, having had no opportunity to object to it previously. (§ 2025.420, subd. (b)(11).) While it is true that a party can include document demands in a deposition notice (§ 2025.220, subd. (a)(5)), these particular depositions were being taken under a court order, which did not include an order to respond to document demands. The court could not sanction Sunbelt for failing to produce documents in addition for failing to appear (see Van v. LanguageLine Solutions (2017) 8 Cal.App.5th 73, 81-82 [failing to obey order not given not ground for sanctions]), and, in fact, the order did not grant Camacho’s request for sanctions on that ground.

Sunbelt’s obvious course – the reasonable and substantially justified course – was to appear at the depositions with PMK in tow, object on the record to producing documents, and offer to go on with the depositions without them. In fact, the judge asked Sunbelt’s counsel why he had not done just that. It would then have been opposing counsel’s decision whether to proceed. Sunbelt would have complied with the court’s order to appear, and the propriety of the document demands could have been resolved at another time. Instead, Sunbelt refused to appear with witnesses at all. This is not substantially justified; it is, instead, sanctionable conduct.

II. Amount of Sanctions

The purpose of a discovery sanction is not to punish the misuser but rather to put the propounding party in the same position it would have been in if the discovery misuse had not occurred. (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259-1260.) Likewise, a court may not award monetary discovery sanctions for actions prior to discovery misuse or not related to it. (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 194.) We review the amount of discovery sanctions for abuse of discretion. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) The party requesting sanctions has the burden of providing evidence to support the amount. (See Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247.)

Camacho asked for $16,535 in attorney fees and costs. The court reduced the amount to $7,193, and while it noted that Camacho did not comply with the statutory procedures for compelling document production, it seems clear to us that the conduct for which the court ordered sanctions was failing to appear at a court-ordered deposition, not failing to produce documents.[5]

Sunbelt now argues that Camacho presented no evidence by which the trial court could calculate fees. We agree that Camacho’s evidence for the amount of sanctions was weak. It is not true, however, that there was no evidence by which the court could have calculated the amount. Camacho’s counsel stated she did not keep hourly time records, but she estimated her time to have been 40 hours at $350 per hour, for a total of $14,000. She listed the tasks upon which she had spent time. This is admissible evidence of the value of attorney time. (See Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375; Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269.) Its weight is not for us to re-evaluate. The rest of the request was for costs, such as transcripts, for which invoices were provided.

Nor can we find error in the amount of the sanctions. Sunbelt now argues – as a fallback position – that the amount of sanctions was too high.[6] But this argument was not made in the court below and cannot be raised for the first time here. You cannot argue in the trial court that no sanctions can be imposed and then complain to the Court of Appeal that the amount was too high. Those are two different issues, and the latter cannot be raised for the first time on appeal. (See Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1066; Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 372; People ex rel. Department of Public Works v. Alexander (1963) 212 Cal.App.2d 84, 98; see also Damiani v. Albert (1957) 48 Cal.2d 15, 18.) Adequacy of the evidence presented was the trial court’s call in the first instance. The record does not reflect any objection on Sunbelt’s part to the evidence submitted to support the amount of sanctions either in its opposition to the motion or at the hearing. (See Evid. Code, § 353.)

The court’s tentative decision reduced the amount requested by more than half, to $7,785, indicating to us that it was sanctioning only the failure to appear at the deposition.[7] After the hearing, the court made a further reduction, showing that it was keeping a close eye on the basis for the amount. On this record, we cannot say that the court abused its discretion.

DISPOSITION

The order of August 6, 2020, granting respondent’s motion for sanctions is affirmed. Respondent is to recover his costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

GOETHALS, J.

[1] Camacho’s immediate employer, AGS Construction, is not a named defendant.

Camacho’s guardian ad litem, his wife, is also a plaintiff. For convenience, we refer to both parties as “Camacho.”

[2] Also known as PMQ (Person(s) Most Qualified).

[3] Stachowiak had made both presentations. Sunbelt argued that these categories constituted an end run around the protective order.

[4] All further statutory references are to the Code of Civil Procedure.

[5] Sunbelt argues on appeal that the motion was procedurally defective with respect to the document production request. Sunbelt did not raise this issue in the trial court; the court itself made this remark. In any event, the deficiency relates only to the document demand and did not affect the portion of the order regarding Sunbelt’s disobeying a court order to provide discovery.

[6] We are aware their brief below included one citation to the effect that sanctions must be in an amount commensurate with the offense, but the point was never developed in either the briefs or the argument.

[7] After subtracting the final amount claimed for costs, approximately $1,900, the remaining amount works out to 15 hours at counsel’s professed rate.