Marriage of Golan and Liu

Filed 8/23/07 Marriage of Golan and Liu CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEALS from orders of the Superior Court of Los Angeles County, Joe W. Hilberman and Gerald Rosenberg, Judges. Affirmed in part and reversed in part.

Law Offices of Ricky W. Poon and Ricky W. Poon for Appellants.

No appearance for Respondent.

______________________________

In this postdissolution case, the wifes attorney challenges two separate sanction orders, one imposing $1,000 in a discovery dispute, the other imposing $3,500 for alleged bad faith conduct involving ex parte applications.

We conclude that the trial court did not abuse its discretion in imposing the $1,000 sanction because the attorney made baseless objections to discovery. But, in awarding the $3,500, the trial court relied on a statute that has never gone into effect, and the order did not describe any misconduct or explain the courts reasoning. Accordingly, we affirm the first order and reverse the second.

I

BACKGROUND

This dissolution action was tried in parts. On November 2, 2005, after a bench trial, the court announced its decision as to certain issues, leaving others for a further trial. The court decided that the wife had the right of first refusal to purchase the marital home provided she closed escrow no later than January 15, 2006. The court reserved decision on the date of separation, child support, spousal support, attorney fees, and costs.

On January 18, 2006, the parties appeared in the trial court to discuss the status of the home purchase and to set a date for the trial on the reserved issues. Escrow had not yet closed. The trial court ordered the parties to cooperate in concluding the transaction and gave the wife an additional 30 days to close escrow. The court scheduled the trial to resume on April 10, 2006. The parties also addressed whether any additional discovery was appropriate. The husbands attorney, Marc Kopeikin, said some limited discovery should probably be allowed. The wifes attorney, Ricky Poon, responded, Oh yeah. I totally agree. We need to do certain discovery. The trial court commented, Okay.

On February 8, 2006, the husband served by mail a notice to take the wifes deposition, scheduled for Monday, February 27, 2006. The wife had not been previously deposed. The notice requested that, at the deposition, she produce 38 categories of documents, dating back to January 1, 2004.

In a series of letters beginning February 14, 2006, Poon objected to the deposition on the grounds (1) the notice was untimely because it had to be mailed at least 25 days before the deposition, and (2) the deposition and document requests were barred by the 30-day pretrial discovery cutoff because the trial had begun in 2005. Kopeikin responded in several letters, saying that 15 days notice was adequate and that the trial court had reopened discovery  in response to the parties joint agreement  at the January 18, 2006 status conference. Kopeikin also offered to modify the document requests, but Poon was unresponsive to that offer. In a final letter on the subject, Poon made clear that the wife would not appear for the deposition. Poon never suggested any acceptable conditions for taking the deposition.

The wife then sought a protective order to bar the deposition and an order to quash the deposition notice, arguing that the 30‑day pretrial discovery cutoff had passed and that the deposition, including the document production, was unduly burdensome and oppressive. She also sought monetary sanctions.

The husband filed a motion to compel the wifes compliance with the deposition notice and also moved for monetary sanctions. The wife filed opposition.

At a hearing on March 21, 2006, the trial court, Judge Joe W. Hilberman presiding, issued an order granting both motions in part, stating that the wifes deposition would go forward but could not last longer than six hours and would be limited in scope to the issues reserved for further trial. The court also ruled that only five categories of documents had to be produced, and they were to be limited in time to March 1, 2005, and thereafter, including the wifes tax returns for 2004 and 2005. Poon was sanctioned $1,000 because, according to the court, the objections he made during the meet-and-confer process were baseless. Implicit in the sanctions ruling was a finding that Poon had not engaged in a reasonable attempt to resolve the discovery dispute informally.

Meanwhile, the extended deadline was approaching for the wife to close escrow. Poon believed that the husband was not cooperating in an effort to complete the transaction. As a consequence, Poon sought ex parte relief. Upon an application by Poon, the trial court, Judge Gerald Rosenberg presiding, issued an ex parte order on March 2, 2006, directing the husband to execute the escrow papers, including the grant deed. By separate application, Poon obtained an ex parte order from Judge Rosenberg on March 3, 2006, directing the clerk of the court to execute the escrow papers on the husbands behalf.

Kopeikin promptly informed the trial court that he had not received proper notice of either ex parte application. In response, Judge Rosenberg struck both orders and issued an order to show cause (OSC) why Poon should not be sanctioned and reported to the State Bar. The OSC was set for hearing on March 21, 2006, but was later continued to April 27, 2006.

Independent of the OSC, the husband filed a motion to impose sanctions on the wife and Poon under Code of Civil Procedure section 128.6. (All section references are to the Code of Civil Procedure.) Kopeikin signed and filed two supporting declarations. In the declarations, Kopeikin stated: (1) notice of the first ex parte application stated that Poon would seek to hold the husband and Kopeikin in contempt of court but did not say that Poon would seek an order compelling the husband to sign any escrow papers; (2) when Kopeikin saw the first ex parte order, he did not know what escrow papers were being referenced and had never seen them; and (3) with respect to the second ex parte order, Kopeikin did not receive any advance notice. The husbands sanctions motion was also set for hearing on April 27, 2006.

On March 18, 2006, Poon filed opposition to the OSC and sanctions motion, submitting a memorandum of points and authorities, his own declaration, and a declaration from an attorney who assisted him in obtaining the second ex parte order. Poon asserted (1) the notice of the first ex parte application was adequate, and (2) the second order did not require an ex parte application because it was merely a request that the clerk of the court execute the escrow papers in lieu of the husband.

On or about April 18, 2006, the wife filed a notice of appeal from: (1) the order imposing $1,000 in discovery sanctions and denying her request for sanctions on her motion for a protective order; and (2) the OSC re sanctions concerning the ex parte matters.

On April 27, 2006, Judge Rosenberg heard the OSC re sanctions and the husbands motion for sanctions. Poon did not attend the hearing, erroneously believing that the notice of appeal had automatically stayed all proceedings. With respect to the first ex parte application, Poon had claimed in it he informed Kopeikin that the proposed order would direct the husband to sign the escrow papers, but the notice actually stated that Poon would seek to hold the husband and Kopeikin in contempt of court. Kopeikin did not appear at the first ex parte hearing because he believed that a court could not issue an order of contempt based on an ex parte application. As for the second ex parte order, Poon had given notice that the hearing would take place on March 6, 2006, but the matter was heard on March 3. Thus, Kopeikin did not appear for the second hearing either.

Judge Rosenberg granted the husbands motion in part and imposed $3,500 in sanctions, saying Poon had failed to give proper notice of the ex parte hearings. Poon was also ordered to notify the State Bar of the sanctions if they were reportable.[1]

On April 28, 2006, Judge Rosenberg entered Findings and [an] Order After Hearing, granting the husbands motion for sanctions in part and ordering Poon to pay $3,500 to Kopeikin. The motion was denied to the extent it sought to impose sanctions on the wife. The order recited that Mr. Poons actions in this matter constitute bad faith actions or tactics as contemplated by [section 128.6]. Poon was also directed to report the sanctions to the State Bar, if they were a reportable matter. Finally, the order dismissed the courts OSC re sanctions on the ground that no further sanctions are warranted.

On May 1, 2006, the wife filed an amended notice of appeal to include the order awarding the $3,500.

On May 22, 2006, the wife filed a petition with this court, seeking a writ of supersedeas with respect to both orders. We granted the petition on July 6, 2006 (B190703).

II

DISCUSSION

The wife and Poon seek review of the March 21, 2006 discovery order and the April 28, 2006 sanctions order. We affirm the first order because the trial court did not abuse its discretion. We reverse the second order because it was issued under the wrong statute and failed to state any sanctionable conduct and the rationale for the sanctions.

As a preliminary matter, the notices of appeal state that the wife is appealing the orders. Poon is not named as an appellant. Division Eight of this District recently held that, applying the doctrine of liberal construction of a notice of appeal . . . a notice that name[s] only a party [also] include[s] [the] attorney[] who . . . filed the notice and against whom the sanctions [were] assessed. (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 974.) Eichenbaum, in turn, relied on a similar conclusion reached by Division Five of this District in Kane v. Hurley (1994) 30 Cal.App.4th 859, 861, footnote 4. (But see Taylor v. Varga (1995) 37 Cal.App.4th 750, 761, fn. 12 [reaching contrary conclusion].) We therefore have jurisdiction to reach the merits of the sanction orders.

A. The March 21, 2006 Discovery Order

The wife and Poon challenge the first order on three grounds, none of which has merit. We review the order for an abuse of discretion. (See Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123.)

First, the wife argues that, because her deposition was unnecessary, the trial court erred in granting the husbands motion to compel compliance with the deposition notice. But this argument is unsupported by any cited authority, and the record is inadequate to resolve the point. It is therefore waived. (See Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 237238; Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660.)

Second, the wife argues that the trial court erred by not awarding sanctions against the husband when it granted in part her motion for a protective order, limiting the scope of the deposition. In a final and related argument, Poon contends the trial court improperly imposed $1,000 in sanctions on him when it granted in part the husbands motion to compel compliance with the deposition notice. Just as these competing motions were interrelated, so is the resolution of the issues on appeal.

We acknowledge that both parties were only partially successful in bringing their respective motions. But in attempting to resolve the deposition dispute during the meet-and-confer process, Poon made baseless objections. He wrongly asserted that the deposition notice had to be served 25 days before the date of the deposition; the notice had been properly served by mail 15 days beforehand. (See  2025.270, subd. (a), 1013, subd. (a).) Poon also argued that the deposition could not be taken because the 30-day pretrial discovery cutoff had passed in 2005. (See  2024.020, subd. (a).) Yet, on January 18, 2006, the parties agreed in open court, with the trial courts approval, to reopen discovery. (See  2024.050.) Last, Poon stated at the hearing on the discovery motion that he had legitimately objected to the scope of the document requests during the meet-and-confer process. The trial court pointed out that the motion papers contained no evidence of such an objection. Poon responded that the evidence of the objection was in his car.

Monetary sanctions may be imposed for a misuse of discovery. ( 2023.030.) Misuse includes [m]aking, without substantial justification, an unmeritorious objection to discovery. ( 2023.010, subd. (e).) Sanctions are also appropriate where an attorney fails to confer with opposing counsel in a reasonable and good faith attempt to resolve informally any dispute concerning discovery. (Id., subd. (i); see  2025.450, subd. (b)(2).) Either one or both of those grounds supported the trial courts imposition of $1,000 in sanctions on Poon: His objections were baseless, and he flatly refused to permit the taking of the wifes deposition.

For her part, the wife asserts that the husband should have been sanctioned because, by statute, [t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. ( 2025.420, subd. (d).) It cannot be said, however, that the husband unsuccessfully opposed the motion for a protective order. The wifes motion argued primarily that the deposition should not be permitted under any circumstances. The trial court allowed the deposition to be taken subject to specified restrictions. Thus, the husbands opposition was largely successful. And given Poons unreasonable objections during the meet-and-confer process, the husbands motion was necessary. If Poon had been reasonably cooperative during that process, the husbands motion could have been avoided.

B. The April 28, 2006 Sanctions Order

We assume for the sake of discussion that Poon engaged in bad faith conduct in obtaining the two ex parte orders. Nevertheless, the trial court lacked authority to impose sanctions under the statute it cited and did not comply with the procedural requirements of the applicable statute.

Because this portion of the appeal raises a question of law, we review the trial courts decision de novo. (See 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.)

The trial court purported to impose $3,500 in sanctions under section 128.6. That statute provides: Every trial court may order a party, the partys attorney, or both to pay any reasonable expenses, including attorneys fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. . . . [] (b) For purposes of this section: [] (1) Actions or tactics include, but are not limited to, the making or opposing of motions . . . . (Stats. 1994, ch. 1062,  2, as amended by Stats. 1998, ch. 121,  1.) But section 128.6 does not go into effect unless and until section 128.7 is repealed. That has not happened. As a result, any sanctions of the type imposed by the trial court must be imposed under section 128.7. (See Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 811, 813.)

Section 128.7, which is rather lengthy compared to section 128.6, states in part, [w]hen imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed. (Subd. (e).) That was not done in the April 28, 2006 order.

Whether Poons alleged misconduct violated the standards set forth in section 128.7 should be decided by the trial court in the first instance. (See  128.7, subds. (b)(d); Olsen v. Harbison (2005) 134 Cal.App.4th 278, 288 [trial court, not Court of Appeal, should initially decide whether to award sanctions for bringing allegedly frivolous motion.) Section 128.7 is clearly more restrictive than section 128.[6] in certain respects. (Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 368.) In sum, because the trial court incorrectly relied on section 128.6, the April 28, 2006 order is reversed.

III

DISPOSITION

The March 21, 2006 order is affirmed. The April 28, 2006 order is reversed. Appellants are to bear their own costs on appeal.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

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[1]All monetary sanctions are reportable to the State Bar except sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000). (Bus. & Prof. Code,  6086.7, subd. (a)(3).)

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.