Filed 7/25/22 Baer v. Tedder 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Glenda Sanders. Affirmed.

Law Offices of Robert K. Kent and Robert K. Kent for Defendants and Appellants.

Holland & Knight, Benjamin P. Pugh and Nicholas A. Dellefave for Plaintiff and Respondent.

* * *

This is the eighth appeal arising from complex litigation initiated 26 years ago. Defendants David H. Tedder and his counsel, Robert K. Kent, challenge the trial court’s decision to impose a $10,475 discovery sanction against them. They raise multiple challenges to the sanction award, none of which have merit. Accordingly, we affirm the order.

FACTS

I. Litigation History

We need only briefly summarize the litigation history, spanning over two decades, to give some context to the issues raised in this appeal. We incorporate by reference the pertinent facts set forth in our prior opinions.[1] The original complaint, filed in 1996, arises out of business dealings between Dan W. Baer and Tedder, during the late 1980s and early 1990s. (Baer v. Tedder et al. (Feb. 28, 2018, G052729) [nonpub. opn.] (Baer 1).) It began as an action filed by Tedder, as general partner of multiple Nevada limited partnerships he created to provide “asset protection” services to his clients. (Ibid.) Tedder, who is also an attorney, sued on behalf of the limited partnerships to recover on loans they allegedly made to Baer’s two corporations to acquire real estate owned by the corporations. (Ibid.)

Baer’s corporations and Tedder cross-complained against each other seeking to determine their respective interests in the real estate and other business pursuits. (Baer 1, supra, G052729.) The action was tried in four separate phases before different superior court judges. (Ibid.) After 10 years of litigation, Baer personally prevailed in the first three phases of trial. This prompted Tedder’s clients to change their strategy and allege Baer, as a nonattorney partner in Tedder’s law firm, was liable for Tedder’s breaches of his fiduciary duties. During phase 4, the trial court ruled this new accusation was time-barred and there was insufficient evidence to support it. (Ibid.)

In the final judgment, the court ruled Baer was not liable on any cause of action in the original complaint. (Baer 1, supra, G052729.) However, the court determined two of Baer’s corporations must repay money owed on the loans to the limited partnerships. The court concluded Tedder had no interest in the real estate owned by Baer’s corporations and he and Baer could not recover anything from each other. In Banyan 1, supra, (G045584), we affirmed the final judgment.

In postjudgment proceedings, the court denied each side’s requests for attorney fees (affirmed in Banyan 3, supra, G046428). The court determined certain parties on both sides of this multi-phase litigation were prevailing parties and apportioned costs accordingly (affirmed in Banyan 4, supra, G051282).

Thereafter, Baer filed a malicious prosecution action against Tedder, his clients, and the attorneys who represented them (Dennis Hartmann and Thomas W. Dressler). In Baer I, supra, (G052729), we reviewed the court’s decision to grant the defendants’ special motions to strike (anti-SLAPP motions) (Code Civ. Proc., § 425.16)[2] The motions asserted Baer did not prevail on the merits in phase 4 and there was no evidence the action was initiated with malice. We reversed the ruling as to all parties except for Dressler, having determined Baer failed to demonstrate a probability of prevailing against this attorney. (Ibid.)

II. Malicious Prosecution Action

The gravamen of Baer’s malicious prosecution action is that Tedder, his clients (Donald G. Grammer and Richard McGrath), and their attorneys maliciously conspired to advance a new breach of fiduciary duty theory in phase 4 knowing the claim lacked merit. In his summary judgment motion, Tedder revealed his defense to the lawsuit was that he had no involvement in prosecuting phase 4 and he was unaware of how the case evolved into a breach of fiduciary duty claim against Baer. Tedder declared he was not involved in any discussions with the parties or attorneys litigating phase 4, he was no longer a party in that action, and he had no financial stake in the outcome.

Not surprisingly, Baer’s discovery efforts focused on uncovering evidence disproving Tedder’s defense. Baer made a document production request of electronically stored information (ESI), and the parties spent nearly a year arguing over access to Tedder’s multiple e-mail accounts. In the end, Baer filed a motion to compel the production of ESI, and Tedder[3] belatedly revealed he could only provide access to one of his five America Online (AOL) e-mail accounts. The other e-mail accounts were purged or deactivated by AOL.

III. The Discovery Dispute

Tedder’s briefing does not contain a summary of the underlying facts. Instead, he has cherry-picked favorable facts relating to each argument in the briefing. In contrast, Baer’s brief clearly outlines, in chronological order, how the discovery dispute evolved. We conclude, a complete factual summary helps shed light on the differences between how Tedder and the other defendants responded and cooperated with discovery requests. This big picture overview was also helpful in considering Baer’s argument the appeal was frivolous and sanctionable.[4] For these reasons, our factual summary includes information regarding Baer’s discovery with the other defendants, in addition to his dispute with Tedder.

A. Discovery of Privilege Logs

During discovery in December 2019, Hartmann disclosed a series of privilege logs identifying e-mails exchanged, during the time leading up to phase 4, between himself, his cocounsel Dressler, the clients, and Tedder. Hartmann withheld these e-mails, alleging they were not discoverable due to attorney client privilege or work product protection.

Baer believed these e-mails would help disprove Tedder’s professed non-involvement in phase 4 because they had “subject lines” which appeared to refer to litigation strategy. For example, some of the e-mails stated, “‘Baer strategy session-Tuesday,’” “‘Baer strategy,’” “‘Baer strategy (discussion re next phase),’” “‘Monday meeting with Tedder’” and “‘Controlled Accounts-Baer; question for Tedder on Case signature authority.’” The titles of these e-mails suggested Tedder was actively participating in phase 4 of the case.

B. Hartmann, Grammer, and McGrath Disclose E-mails in March 2020

Baer sought production of the litigation-related e-mails on the grounds that Tedder’s former clients (Grammer and McGrath) waived their attorney client privilege with their phase 4 attorneys (Hartmann and Dressler), by raising the affirmative defense that they relied on the advice of counsel in pursuing those claims. Baer sent multiple discovery requests seeking documents related to this affirmative defense, including communications not previously produced on the grounds of privilege. He proposed that the parties hire a third party forensic expert, Setec, to search the ESI.

Hartmann, Grammer, and McGrath eventually agreed to disclose their e-mails. In January 2020, Baer, Hartmann, Grammer, and McGrath negotiated a discovery stipulation to address how the search would be conducted (January Discovery Stipulation). The stipulation stated the parties had resolved their dispute over claims of privilege and the method of searching for ESI. The parties agreed on an “orderly procedure for the production” of ESI. Namely, Setec would search Hartmann and McGrath’s ESI and extract all communications from the e-mail “addresses, computers or other machine containing responsive ESI” from the defendants that referenced any of the people listed in the stipulation. The search spanned seven years (for the period May 31, 2007 through Jan. 1, 2014), which the parties referred to as the “‘Communication Universe.’”

Setec agreed to sort the Communication Universe by sender/recipient (the “‘Sorted Universe’”) and in two groups relating to documents generated before and after June 6, 2008. Setec planned to tag potentially responsive documents for the defendants to review. The files would also be sent to the client’s attorney (Dressler) and Tedder’s counsel (Kent).

After the attorneys reviewed the communications, the stipulation provided that they had five days to raise objections and then meet and confer in good faith to resolve any disputes. Any remaining objections would be submitted to the trial court for in camera resolution. The court accepted the stipulation on March 18, 2020.

C. Informal Discovery Conference June 2020

All did not proceed as planned. At the end of May 2020, Kent sent Baer a letter acknowledging he had received files from Setec containing e-mails collected from the other defendants. Kent confirmed he was unwilling to download Outlook onto his computer to review the e-mails. Kent stated Setec recommended he purchase a $300 program, but he refused to incur any added expense. He indicated he might be willing to receive the 220 MB file of e-mails on a flash drive. Kent stated, “With respect to the forensic inspection of . . . Tedder’s e-mails, I have told you time and time again, until I see the e-mails from the other [d]efendants, I do not feel comfortable trying to reach a [s]tipulation concerning a forensic inspection.”

Baer requested an informal discovery conference (IDC) between his counsel and Kent. On June 26, 2020, the court held the IDC and made several orders based on an agreement of the parties. In its order, the court noted Setec inspected Hartmann, Grammer, and McGrath’s ESI and it must provide Kent “with the e-mails previously withheld from said inspection and production on which Tedder was a sender or recipient by June 30, 2020.” The court ordered Baer’s counsel to “work with Setec to ensure delivery of these e-mail files to . . . Kent via drop box link, or flash drive if not unduly expensive.” It determined Kent or Tedder would be responsible for purchasing “software or the assistance of an information technology professional to enable them to review the e-mail files in the format in which they have been produced.” The court gave Kent a deadline of July 15, 2020, to review and either produce the e-mails or “provide a privilege log for e-mails withheld on the basis of an asserted privilege.” To permit more time for discovery, the court continued defendants’ multiple summary judgment motions to October 2020.

In addition, the court instructed Tedder to supplement his responses to Baer’s special interrogatories Nos. 112 and 113 “by reviewing information reasonably available to him and making a reasonable and good faith effort to obtain the information from other natural persons or organizations, as required by . . . section 2030.220 . . . .” The court scheduled another IDC for August 2020 to consider four “potential motions to compel” filed by Tedder against Baer.

Kent eventually reviewed the e-mails tagged by Setec during the forensic search of the other defendants’ e-mails. Baer’s counsel declared that on July 23, 2020, Setec gave him “a spreadsheet, purportedly a privilege log, that . . . Kent had provided

. . . listing the e-mails Tedder claimed should be withheld from production to Baer . . . .” Our record contains a copy of this spreadsheet, which simply shows the dates and the addresses for the parties sending and receiving 66 e-mails. According to Baer, on August 6, 2020, Setec released six e-mails to Baer’s counsel that were exchanged between Tedder and Hartmann.

Kent tells a different story about the number of e-mails tagged by Setec for his review. He declared that after the IDC, he retained a computer technician to help him access the e-mails. At the end of June, Setec sent him a privilege log template used by Dressler. Kent stated he told Setec he would be making objections and privilege claims to approximately 4,980 e-mails. On July 13, 2020, Kent wrote Setec and said he reviewed 1,200 e-mails in which Tedder was a party. He designated on a spreadsheet which e-mails were privileged and those which could be disclosed. Kent claimed he submitted the spreadsheet concerning Tedder’s e-mails by the July 15 deadline.

Kent asserted Setec acknowledged it received the spreadsheet but on July 21, 2020, Baer’s counsel sent a letter stating Tedder had not timely filed a privilege log. Baer argued all privilege claims were therefore waived and he was entitled to the production of all of Tedder’s e-mails.

D. Tedder Delays Production of Documents

Coinciding with Baer’s attempts to discover Tedder’s e-mails from the other defendants’ ESI, Baer sought copies of the documents directly from Tedder. In early January 2020, Baer requested production of Tedder’s e-mails. On March 6, 2020, Tedder served a verified statement of compliance, representing he would comply with the request “subject to the [s]tipulation and [p]rotective [o]rder pertaining to the forensic inspection.” However, the only stipulation regarding discovery of the ESI was between Baer and the other defendants, i.e., the January Discovery Stipulation. The court did not sign that stipulation until March 18, 2020, which was 12 days after Tedder served his statement of compliance. The record does not contain a stipulation or protective order in place between Baer and Tedder in early March 2020.

Rather, the record reveals that for over eight months Baer’s counsel repeatedly sought Tedder’s cooperation with the forensic search of ESI. In addition to e-mail and telephone calls, Baer’s counsel sent Kent four meet and confer letters concerning the matter (dated Mar. 26, Apr. 27, May 28, and July 21). He also sent multiple proposed stipulations (dated Mar. 11, Apr. 22, June 26, July 27, Aug. 17, Sept. 1 and Sept. 25.) Each time, counsel invited Kent to execute the stipulation or provide feedback.

For example, Baer’s March 26 meet and confer letter recapped his efforts to have Tedder join in the stipulation involving the other defendants. In early March 2020, Baer’s counsel stated he sent Kent a copy of the stipulation and asked him to propose any changes. Kent did not respond until weeks later and indicated for the first time that the stipulation for forensic inspection must be reciprocal to include Baer’s e-mails. Kent had recently served Baer with over 200 document requests.

In response, Baer’s counsel noted some of Tedder’s discovery requests would trigger claims of attorney-client privilege. He reminded Kent that Baer and Tedder were not similarly situated parties in the litigation. He stated Tedder’s compliance was required regardless of the status of discovery requests to Baer.

The May 28 meet and confer letter revealed the parties’ discovery dispute escalated. In addition to Kent refusing to review the e-mails produced by Setec pursuant to the January Discovery Stipulation, Kent would not agree to a forensic search of Tedder’s e-mails and provided deficient responses to special interrogatories (set three). Baer’s counsel complained Kent represented under penalty of perjury in March 2020 that he would comply with the forensic search of his e-mails, but in three months he had done “nothing to enable that search to proceed, instead obstructing . . . efforts to move the search forward with meritless objections, accusations and irrelevant retaliatory demands.” Baer’s counsel reminded Kent, “while we have provided several iterations of proposed stipulations concerning the search, you have never articulated specific objections to the search parameters or proposed alternatives. In short, you and . . . Tedder have failed to give even the appearance of compliance with his March 6 written response, instead resorting to bad faith obstruction.” Counsel noted the e-mails must be produced without further delay because Baer’s opposition to pending motions for summary judgment would soon be due.

During an August 17, 2020 conference call, Kent stated he would review the most recently proposed stipulation and Tedder would contact Setec. Nothing happened until September 21, 2020, when Baer’s counsel sent an e-mail following up on the matter, stating there was no stipulation in place and they had not received “any indication . . . Tedder” complied with the forensic search. The following day Kent replied by claiming Tedder called Setec. He added that when Tedder agreed to the search, Kent “had no idea what a boondoggle and chaotic process this would be.” Kent stated it was a “fishing expedition” and a “wild goose chase” because there was no reason to believe there would be any relevant documents beyond the ones already disclosed.

On September 23, 2020, Baer’s counsel sent an e-mail to Kent stating that Tedder “finally called” Setec but he only provided access to one AOL e-mail account. Counsel asserted he had reason to believe Tedder used a total of five AOL e-mail accounts during the relevant time period. After listing the accounts, counsel asked Kent to provide the passwords. Baer’s counsel attached a copy of the latest version of the stipulation. Counsel stated he considered Kent’s lack of comment to be an agreement to this final version.

A few days later, on September 25, Kent stated he would take the IDC off calendar because it appeared that everyone agreed with the latest stipulation. Kent clarified, “I didn’t say . . . Tedder was unable to provide his e-mail accounts other than his main account . . . . What I said was he did not necessarily remember passwords for accounts he has not used in 10-15 years. I am not sure [Setec] can figure it out. We are not withholding anything. [T]edder cannot provide a password he does not remember.”

Baer’s counsel replied he believed the accounts no longer existed, which was a different issue than Tedder simply forgetting the passwords. He stated, “Naturally, we need to get to the bottom of this disparity.”

The following month, on October 12, 2020, Baer e-mailed to ask Kent why he had not yet confirmed Tedder would sign the stipulation. Baer also accused Tedder of failing to comply with the discovery requests relating to his e-mail accounts. Counsel stated section 2031.230 required Tedder to explain why the e-mails could not be produced. He noted if the appropriate responses were not made by October 21, Baer would request an IDC or if necessary, move to compel and ask for sanctions.

Kent replied, “Stop with your childish accusations. . . . I know it is very difficult to represent someone like . . . Baer and having to compromise all your ethics and integrity.” Kent stated he was “not sure at this point what good the [s]tipulation would do.” He claimed Tedder provided access to the main account he had maintained for years, and he provided potential passwords for the ones he no longer used. He did not think it was appropriate for counsel to accuse Tedder of withholding information, and he expected an apology. Kent added he would not take orders from Baer’s counsel, he would not respond to threats, and he believed counsel needed to “learn to speak in a civil manner because I am not going to be spoken to in that manner by a rookie attorney who is a poster child for how not to respond to discovery.” He concluded the e-mail by stating Baer lived “in a fantasy world and sadly” his attorney was “supporting this alternative universe.”

At the end of October 2020, Kent told opposing counsel he would not be available for depositions in November. Baer’s counsel replied that the depositions must take place as scheduled because the oppositions to several motions for summary judgment were due at the end of November. He also informed Kent that because they did not have Tedder’s e-mails, and Kent refused to comment on or approve the proposed stipulation, Baer was going to file a motion to compel.

Kent replied he did agree on the search terms, but was concerned about other aspects of the stipulation. He noted Setec searched Tedder’s main account but did not send anything to review. He repeated Tedder provided all the password information he possessed and had fully cooperated. Kent concluded Baer was looking for things that did not exist and he should have requested the e-mail information years ago.

Baer’s counsel replied the depositions would have to be postponed because he intended ask questions about Tedder’s e-mails. Counsel stated he would be filing a motion to compel shortly. He added the search terms had not yet been agreed upon and if Kent had concerns about other aspects of the stipulation, he had unreasonably waited eight months to say something.

Kent replied by accusing counsel of being dishonest. He blamed Baer’s counsel for delays and claimed Tedder fully cooperated at all times. As for the stipulation he stated the following: “I have agreed to the search terms. I have other problems [with] the Stipulation. Send me a Stipulation with just the search terms. As I understand it, the search of the e-mails was based on the agreed upon search terms. Your communications skills are very poor and you do not even know the history of communication. You chose not to be involved because every time I mentioned polygraph tests, you had . . . little tizzy fits.” He later stated, “I could not decide what search terms were appropriate or what other procedures for the forensic inspection were appropriate until I saw the first results. That took almost six months.”

E. Motion to Compel

At the end of October 2020, Baer filed a motion to compel production of documents. He also served special interrogatories and a request for admissions that specifically sought additional information about Tedder’s claim he only had information for one e-mail account.

Baer’s motion to compel and request for sanctions was made pursuant to sections 2031.230, 2031.310, 2031.320 and 2023.010, on the following grounds: “1) Tedder has failed to permit inspection of his e-mail accounts as represented in his verified Statement of Compliance; 2) Tedder has failed to timely amend his verified Statement of Compliance to reflect the existence or availability of documents he now claims he cannot produce; 3) accordingly, Tedder has failed to submit to an authorized method of discovery . . . . Good cause exists for an order compelling Tedder to comply with his verified Statement of Compliance by entry of an order setting forth search terms and procedures to submit Tedder’s e-mail accounts to a forensic search, and imposing monetary sanctions upon Tedder and his attorney of record, Mr. Kent.” Baer requested Tedder comply with production of documents set three (Nos. 64-69, 71-73, & 75-79) because the statement of compliance did not accurately reflect the availability of documents in accordance with section 2031.230.

On November 19, 2020, Tedder signed a limited stipulation providing search terms for Setec to use in its forensic search of the ESI. However, the stipulation did not address procedural matters such as deadlines and objection procedures. On the same day, Tedder filed his opposition to the motion to compel, he filed responses to the most recent set of discovery requests. In his answers to special interrogatories, Tedder claimed he only used one AOL e-mail account on a daily basis. He stated the other accounts had not been used for many years. He did not recall deleting or deactivating any accounts, but rather simply stopped using them. He was told by AOL that it had a policy of purging e-mail accounts after two or three years of nonuse. Tedder stated that is what likely happened with his other accounts.

In his reply to the motion to compel, Baer disagreed with Tedder’s contention the motion to compel was “never necessary.” He asserted, “While certain aspects of the [m]otion are now moot as a consequence of Tedder’s actions after the [m]otion had been filed, the circumstances existing at the time of filing—namely, Tedder’s then-refusal to provide verified supplemental discovery responses explaining the unavailability of his e-mails, and the time pressure, created by Tedder’s delay, of the then-looming hearings on the Defendants’ motions for summary judgment—required Baer to file the [m]otion.” Baer noted Tedder conceded in the opposition that he waited more than four months, after serving his written statement of compliance, to contact Setec. Thereafter, there remained several unresolved issues because Tedder refused to sign a stipulation governing the search procedure or search terms. Baer asserted that when he filed the motion to compel, he did not possess an executed stipulation, e-mails from Tedder’s accounts, or a sworn statement explain why some of the accounts could not be provided. He conceded Tedder provided information regarding the status of his e-mail accounts in response to discovery propounded after the motion was filed, however, his counsel would only agree to sign a limited stipulation regarding search terms. The stipulation omitted procedural matters such as deadlines, objection procedures and dispute resolution.

Baer also informed the court that Setec searched Tedder’s one AOL account and it did not contain any e-mails during the search time frame (Apr. 2007 to Feb. 2011). The earliest e-mail message on that account was dated August 2011. Consequently, Baer modified his motion to compel as follows: “In light of this revelation, Baer requests an order compelling a further search of the account using a modified, but nevertheless appropriate, date range—as requested in the initial document request. Specifically, Baer seeks to forensically search Tedder’s e-mail account for relevant e-mails (using the same parameters detailed in the Motion) during the period from August 26, 2011, to November 25, 2013, the date the final remittitur was issued from the Phase [4] plaintiffs’ appeal of the Phase [4] judgment.” (Fn. omitted.) Baer argued Tedder’s communications with the parties and their counsel after phase 4 would be “relevant to demonstrate Tedder’s assistance and cooperation” with the plaintiffs’ appeal of the Phase [4] judgment.”

On December 11, 2020, the court granted the motion to compel and awarded $10,475 in sanctions. The court gave Tedder five court days to submit to a forensic search of his primary e-mail account by Setec. It ordered Tedder to give Setec full access to all communications between August 2011 and November 2013. The court outlined procedures and search terms for the investigation. It adopted language similar to the January Discovery Stipulation the other defendants agreed upon earlier in the year.

With respect to the request for sanctions, the court stated it “carefully reviewed the extensive correspondence submitted by both parties” and determined $10,475 in sanctions was “authorized” under sections 2023.010 and 2031.230. It concluded, “Tedder engaged in a misuse of the discovery process by refusing to submit to an authorized discovery method and/or [by] making evasive responses to discovery . . . .” The court mentioned section 2031.320 provided sanctions should not be awarded if the “‘one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.’” The court held there was no substantial justification for Tedder’s opposition, “ndeed, there was no justification at all.” Finally, the court indicated that although Tedder requested $5,500, it would award $10,475, and this amount must be paid before January 2021.

I. [i]Standard of Review

“We review the trial court’s order imposing the sanction for abuse of discretion. [Citation.] We resolve all evidentiary conflicts most favorably to the trial court’s ruling [citation], and we will reverse only if the trial court’s action was ‘“‘arbitrary, capricious or whimsical.’”’ [Citations.] ‘It is [appellant’s] burden to affirmatively demonstrate error and, where the evidence is in conflict, this court will not disturb the trial court’s findings.”’ [Citations.] To the extent that reviewing the sanction order requires us to construe the applicable discovery statutes, we do so de novo, without regard to the trial court’s ruling or reasoning.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 401 (Sinaiko).)

II. General Rules Regarding Motions to Compel

“The Civil Discovery Act provides litigants with the right to broad discovery.” (Sinaiko, supra, 148 Cal.App.4th at p. 402.) “‘In establishing the statutory methods of obtaining discovery, it was the intent of the Legislature that discovery be allowed whenever consistent with justice and public policy. [Citation.] The statutory provisions must be liberally construed in favor of discovery and the courts must not extend the statutory limitations upon discovery beyond the limits expressed by the Legislature.’ [Citation.] Civil discovery is intended to operate with a minimum of judicial intervention. ‘t is a “central precept” of the Civil Discovery Act . . . that discovery “be essentially self-executing.”’” ([i]Ibid.)

“Generally, the parties may modify the statutory discovery procedures by written stipulation [citation], and, unless restricted by the trial court, are free to utilize any of the prescribed discovery methods during the action in any sequence [citations]. Neither a propounding party’s demands nor a responding party’s responses are filed with the trial court. [Citations.] Accordingly, the trial court does not usually consider either the propriety of a party’s discovery demand or the adequacy of a party’s response unless a dispute arises.” (Sinaiko, supra, 148 Cal.App.4th at p. 402.)

A party responding to an inspection demand has the following two basic obligations: (1) service of a written response and (2) production of the requested items. Thus, the responding party must first prepare a verified written response to the demand. (§§ 2031.210, 2031.250.) “The party to whom a demand for inspection . . . has been directed shall respond separately to each item or category of item by any of the following: [¶] (1) A statement that the party will comply with the particular demand for inspection . . . and any related activities. [¶] (2) A representation that the party lacks the ability to comply with the demand for inspection . . . of a particular item or category of item. [¶] (3) An objection to the particular demand . . . .” (§ 2031.210, subd. (a).)

Relevant to this case, when the party responds with a statement of compliance, the party need only make the representation that the inspection would be allowed, and “that all documents or things in the demanded category that are in the possession, custody, or control of that party” will be included in the inspection. (§ 2031.220.) The statute does not require that a party identify the specific documents or things that will be produced. Further explanation would only be required if the party made the representation there was a lack of ability to comply with a request, or the responding party intended to make an objection. (§§ 2031.230, 2031.240.)

When a discovery dispute arises as to document requests, the trial court may intervene in three circumstances. “First, a responding party may move for a protective order to challenge a discovery demand. . . . [¶] Second, if a propounding party is not satisfied with the response served by a responding party, the propounding party may move the court to compel further responses. [Citations.] The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general.” (Sinaiko, supra, 148 Cal.App.4th at pp. 402-403.) There is a 45-day deadline to bring a motion to compel further responses and the propounding party “must demonstrate that it complied with its obligation to ‘meet and confer.’” (Id. at p. 403.)

“Third, and of particular relevance to this case, the trial court may intervene when a party ‘fails to serve a timely response.’ [Citations.] A party that fails to serve a timely response to the discovery request waives ‘any objection’ to the request, ‘including one based on privilege’ or the protection of attorney work product. [Citations.] The trial court may relieve the party of its waiver, but that party must first demonstrate that (a) it subsequently served a response to the demand; (b) its response ‘is in substantial compliance’ with the statutory provisions governing the form and content of the response; and (c) ‘[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.’ [Citations.] . . . Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a ‘meet and confer’ requirement.” (Sinaiko, supra, 148 Cal.App.4th at pp. 403-404.)

“If a party fails to serve a timely response, and the propounding party moves for and obtains a court order compelling a response, the trial court must impose a monetary sanction against the delinquent party unless that party acted with ‘substantial justification’ or the sanction would otherwise be unjust. [Citations.] . . . Section 2023.030 authorizes a trial court to impose a monetary sanction against any party or attorney, or both, who has engaged in misuse of the discovery process. Misuses of the discovery process include, among other things, failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and disobeying a court order to provide discovery.” (Sinaiko, supra, 148 Cal.App.4th at pp. 404-405, fn. omitted.)

III. Timeliness of Motion

Tedder served his statement of compliance on March 6, 2020. Tedder maintains Baer’s motion to compel further responses, filed on October 28, 2020, was filed six months past the 45-day deadline. He argues the 45-day deadline was jurisdictional, and therefore, the court lacked authority to consider and grant the late motion. This argument is based on the faulty premise Baer filed a motion to compel further responses. The record shows Baer filed a motion to compel responses (§ 2031.320), which was not subject to a 45-day time limit.

It appears Tedder believes we must construe Baer’s motion to compel responses as a motion to compel further responses because at the 11th hour he complied with a different (but related) set of discovery requests. Tedder cites to no case authority, and we found none, supporting this contention. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie) [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)

Tedder’s argument not only lacks legal support. It defies common sense. Baer had no grounds to file a motion to compel further responses 45 days after Tedder filed a statement of compliance. Tedder gave no indication he would be unable to access his multiple e-mail accounts or that his current e-mail account did not have any e-mails sent during the designated time frame. In March 2020, a motion to compel would have been frivolous and sanctionable.

Baer cannot be faulted for the time spent attempting to finalize a stipulation that Tedder indicated was a requirement for a forensic search of his ESI. Tedder’s statement of compliance clearly stated production would follow the terms outlined in “the stipulation and protective order.” The parties understood the stipulation needed to be drafted. Tedder had already refused to join the stipulation used by his codefendants (the January Discovery Stipulation). Thus, any delay caused by arguments over the terms of the stipulation would not give Baer reason to believe Tedder did not actually possess searchable e-mail accounts. We note Baer filed the motion on October 28, 2020, well within 45 days of discovering Tedder’s unequivocal statement of compliance was false.

Alternatively, Tedder asserts Baer was required to withdraw his motion to compel after receiving discovery responses 11 days before the hearing. Once again, Tedder does not provide case authority or discuss any rules mandating withdrawal. Moreover, in raising this argument, Tedder fails to acknowledge that Baer’s reply brief to the motion to compel acknowledged receiving the discovery responses. In the reply, Baer stated the entire motion was not rendered moot by Tedder’s recent discovery efforts. He maintained there were several unresolved issues regarding search terms for the ESI investigation and missing procedures relating to objections. We noticed that in arguing Baer was required to withdraw the motion, Tedder does not refute Baer’s lack-of-mootness analysis. We can think of no legal reason why the trial court could not consider portions of the motion not rendered moot by subsequent discovery responses.

IV. Meet and Confirm Efforts

Tedder argues that in addition to the motion being untimely and jurisdictionally barred, Baer failed to meet and confer, which was required before filing the motion. Like Tedder’s prior argument, this contention is based on the premise Baer filed a motion to compel further responses, rather than simply a motion to compel. In a motion to compel, the propounding party does not have to demonstrate good faith or satisfy a meet and confer requirement. (Sinaiko, supra, 148 Cal.App.4th at p. 404.) This argument also contradicts Tedder’s claim he fully cooperated with all of Baer’s discovery requests. If this was true, there would be no need to meet and confer.

As mentioned earlier, the record supports Baer’s conclusion there was no need to file a motion to compel further responses after Tedder prepared a statement of full compliance, suggesting there would be no issues with searching his ESI. At the time, the other defendants were fully cooperating with Baer, pursuant to terms outlined in the January Discovery Stipulation. Tedder’s statement of compliance indicated he too would proceed with a forensic analysis of his ESI pursuant to a stipulation.

The need to meet and confer did not arise until Tedder stalled on signing the stipulation. Baer sent multiple e-mails attempting to resolve this dispute. Later on, Tedder indicated his e-mail accounts were inaccessible because he could not remember passwords. Baer sent a “meet and confer” e-mail, asking for an explanation and further information informally. In response, Tedder ridiculed Baer’s counsel as living in a fantasy world and that he was making “childish accusations.” An additional good faith attempt at informal resolution would have been futile. Baer reasonably filed a motion to compel after learning the lack of passwords was irrelevant because the AOL accounts had been deactivated. In summary, although the discovery statutes did not require Baer to meet and confer, he nevertheless reasonably attempted to resolve the discovery dispute before involving the trial court. Based on all of the above, we conclude the court did not abuse its discretion in considering the timely filed and procedurally correct motion to compel.

V. Discovery by Other Defendants

For the first time on appeal, Tedder asserts Baer concealed from the trial court evidence showing all of Tedder’s e-mails were recovered during the forensic search of the other defendants’ accounts. In addition, Tedder suggests the search of the other defendants “found more e-mails than would have been located” from Tedder’s e-mails because the search terms were more expansive than the ones he agreed to. (Italics added.)

This allegation begs the question how Baer, or for that matter Tedder, could possibly verify all possible e-mails were recovered. As aptly noted by Baer, there was no reason to believe Tedder’s codefendants did not delete e-mails from their accounts. Tedder and the other defendants have a long litigation history of deception and gamesmanship. Baer directs our attention to declarations prepared earlier in this case, where Kent, Hartmann, and Dressler misrepresented (under penalty of perjury) there were no communications at all between themselves and Tedder. Kent complained in a subsequent declaration that he was burdened with having to review thousands of e-mails exchanged between the parties.

We will not speculate Baer recovered all the e-mails from the other defendants. And more importantly, Tedder cannot satisfy his burden of showing the trial court abused its discretion based on mere conjecture. He had the burden of referring to evidence or citing to legal authority demonstrating the court order was arbitrary or exceeded the bounds of reason. (Sinaiko, supra, 148 Cal.App.4th at p. 401.)

Under section 2031,101, subdivision (a), Baer had the right to request the production of documents in Tedder’s control regardless of his ability to investigate other sources. Not surprisingly, Tedder has not cited to any authority holding plaintiffs cannot inspect e-mail accounts of multiple defendants to safeguard against the possibility one party deleted a relevant document. (Badie, supra, 67 Cal.App.4th at pp. 784-785, [waiver when appellant raises argument “but fails to support it with reasoned argument and citations to authority”].)

VI. Limits of Appellate Review

In the briefing, Baer correctly points out Tedder challenges portions of the discovery order which are nonappealable. “‘A trial court’s order is appealable when it is made so by statute. [Citations.]’ [Citation.] Under section 904.1, an appeal may be taken from ‘an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000)’ [citation] or from ‘an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000)’ [citation]. There is no statutory provision for appeal from an order compelling compliance with a discovery order. While a party may seek extraordinary writ relief to prevent discovery of information protected by the right of privacy [citations], this is not such a proceeding. [¶] ‘An attempt to appeal from a nonappealable order does not give this court jurisdiction or authority to review it.’” (Sherman v. Lewis (1913) 166 Cal. 524, 525.) Consequently, it is the duty of the court to dismiss an appeal from an order that is not appealable.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432 (Doe).) However, when the court’s discovery order is appealable insofar as it imposes a monetary sanction exceeding $5,000, we are not required to dismiss the appeal but limit our review to that portion imposing the sanction. (Id. at p. 1433.) “issues unrelated to the propriety of the monetary sanction are not cognizable.” ([i]Ibid.)

“Tedder’s briefing begins with a list of “issues on appeal.” He raises contentions unrelated to the monetary sanction which we will not consider in this appeal. Specifically, we will not address the following arguments: (1) The court abused its discretion in granting discovery relief not requested in the motion; (2) the court erred in ordering Tedder to provide a supplemental response to Baer’s demand for production; and (3) the court erred in ordering Tedder to allow a forensic inspection of his e-mail accounts a second time.

VII. Monetary Sanction

Keeping in mind our limited standard of review, we turn to the merits of the sanction award. Tedder asserts the court abused its discretion in imposing sanctions because “not only did [he] act with ‘substantial justification,’ Baer’s Motion to Compel was factually misleading and sought relief not authorized by the Code of Civil Procedure.” We disagree.

As discussed in more detail earlier in this opinion, after a court grants a motion to compel, the producing party can avoid sanctions in limited circumstances. Section 2023.030, subdivision (a) states in relevant part: “If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” (Italics added.)

Before considering Tedder’s substantial justification argument, we address his “other circumstances” contentions, i.e., the motion was factually misleading and requested unauthorized relief. Both arguments lack merit.

The first argument is frivolous. In essence, Tedder asks this court to reverse the ruling on the grounds Baer shrewdly defrauded the court. Scattered throughout the briefing, Tedder asserts Baer improperly “concealed” facts from the court, “deceived” the court, and made “false” and “misleading” statements. Indeed, the accusation of “concealment” was raised over 10 times. This is a puzzling tactic on appeal because it suggests Tedder did not think we would independently review the record.

The parties submitted nearly 2000 pages of documents for the trial court to review. Baer’s motion was supported by several declarations, 33 exhibits, and a request for judicial notice of several more documents. Tedder’s opposition included three declarations and a whopping 160 exhibits. Thus, Tedder certainly had the opportunity to uncover concealed facts, dispel any deceptive statement, or correct misleading assertions. His failure to convince the court does not mean it was bamboozled. We found nothing in the record to rebut the presumption that an intelligent, experienced, and impartial jurist considered all the evidence and arguments presented before deciding the matter.

The second argument is waived due to lack of supporting legal authority. (Badie, supra, 67 Cal.App.4th at pp. 784-785.) If we assume for the sake of argument Tedder requested unauthorized relief in his motion to compel, we are not convinced this fact has any relevance to the propriety of monetary sanctions based on findings of multiple discovery abuses. As mentioned above, it is well settled our review is limited to the portion of the order imposing sanctions, not the sections directing Tedder to cooperate and disclose information. (Doe, supra, 200 Cal.App.4th at p. 1432.) Tedder does not cite to any legal authority, and we found none, holding the mere request for unauthorized discovery in a motion to compel excuses the responding party’s misconduct and precludes the court from ordering monetary sanctions. To the contrary, section 2023.030, subdivision (a), expressly provides the “other circumstances” must “make the imposition of the sanction unjust.” (Italics added.) Such is not the case here.

We turn now to Tedder’s substantial justification argument. “[T]he phrase ‘substantial justification’ has been understood to mean that a justification is clearly reasonable because it is well grounded in both law and fact.” (Doe, supra, 200 Cal.App.4th at p. 1434.) The losing party has the burden of proving substantial justification on appeal. (Id. at p. 1435.)

Tedder argues he fully cooperated with the discovery request because his initial response granting full access to his e-mails was accurate and truthful at the time. He maintains that contrary to Baer’s assertion, he was under no legal obligation to update or supplement his responses. He acknowledges the federal rules impose this duty on litigants, but those rules are inapplicable here. Additionally, Tedder maintains Baer’s reliance on recent California legislation (§ 2031.230) requiring updates was premature. We agree, section 2031.230 was not in effect at the time of discovery in this case. This legal justification, however, does help Tedder’s case because his factual rationalization is insufficient. As mentioned, Tedder’s cooperation with discovery was short lived. The court determined there were multiple findings of misconduct, all of which were supported by the record. Tedder’s assertion he could produce e-mails, even though his accounts were deactivated long ago by AOL, was not the only problem with discovery.

Section 2023.010 provides a nonexhaustive list of discovery process misuses. The court relied on three subdivisions of this statutory provision, stating Tedder “engaged in the misuse of the discovery process by refusing to submit to an authorized discovery method,” made “evasive responses to discovery” and opposed “unsuccessfully and without substantial justification” the motion to compel. (§ 2023.010, subds. (d), (f) & (h).) In its minute order, the court noted Tedder waited five months to give Baer access to a single e-mail account, having e-mails outside the range agreed to for the inspection. The court also mentioned Baer made “extensive ‘meet and confer’ efforts regarding additional e-mail accounts” and to reach an agreement on the terms of a stipulation regarding Setec’s search.

If we accept Tedder’s claim that he had no idea that four of his five e-mail accounts were inaccessible, there remain questions about the one AOL account Tedder admitted he uses daily. Tedder does not claim he was unable to open his own e-mail account and look for the oldest message before responding full compliance was forthcoming. Moreover, Tedder’s initial cooperation was overshadowed by later misconduct. We have carefully reviewed the parties’ e-mail exchanges and, like the trial court, conclude the evidence shows for several months Tedder refused to respond to Baer’s multiple requests to finalize the discovery stipulation, counsel implemented various delaying tactics, and he made evasive responses. When a court’s order contains specific findings of misconduct, we can imply the court also concluded the propounding party was not acting with substantial justification in the course of discovery. (Kwan Software Engineering Inc. v. Hennings (2020) 58 Cal.App.5th 57, 75 [court’s order containing specific findings of misconduct “implicitly concludes” no substantial justification].) In this case, the court expressly ruled there “was no substantial justification for . . . Tedder’s opposition to this motion. Indeed, there was no justification at all.”

We are unpersuaded by Tedder’s argument it would be unfair to blame him for delays in the forensic inspection process. Citing only to his attorney’s declaration, Tedder explains that in January 2020 his counsel agreed to have Setec inspect e-mail accounts but changed his mind after discovering he was misled about the time and expense required for an ESI forensic investigation. Tedder states his counsel reasonably decided to wait and see how the other defendants faired with the ESI investigation, and that counsel wisely refused to agree to a stipulation having inapplicable search terms and “draconian” time restraints. He concludes Baer’s insistence on an expensive fishing expedition was the reason for discovery delays and the boondoggle nature of the discovery request justified Kent’s evasive conduct.

Tedder fails to appreciate Kent’s self-serving declaration was contradicted by other declarations supported by documentary evidence. It was up to the trial court to weigh the evidence, resolve conflicts in it, and assess the credibility of witnesses. (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1562.) As the reviewing court, we must resolve any evidentiary conflicts most favorably to the trial court’s ruling (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 878), and, if more than one reasonable inference can be deduced from the facts, the reviewing court must accept the inference supporting the trial court’s decision. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) The trial court’s decision to accept Baer’s version of events, as set forth in his counsels’ declarations and supporting exhibits of the parties’ e-mails, did not exceed the bounds of reason. (Ibid.)

Additional support for the court’s decision Tedder lacked substantial justification is provided by Tedder’s actions leading up to the June 2020 IDC (facts omitted from Tedder’s briefing). The motion to compel was not the first time the court considered Tedder’s counsel disinclination to participate in discovery. For several months before the IDC, Kent refused to accept delivery of e-mails collected by Setec. In May 2020, Kent informed Baer he would not sign a stipulation concerning Tedder’s ESI until he saw the e-mails collected from the other defendants, i.e., the same e-mails he was dodging. Due to Kent’s failure to cooperate, the court ordered Kent to work with Setec to ensure delivery, purchase whatever was needed to review the files, and complete his review before July 15, 2020.

Despite this evidence, it is noteworthy that Tedder raises a frivolous argument regarding the IDC in his concluding remarks of the opening brief. He suggests the court ignored evidence he fully cooperated with Setec’s forensic inspection because he willingly followed all the court’s instructions following the IDC.[5] This argument suggests Tedder had the option of ignoring the court’s orders, and more importantly, misrepresents the undisputed reasons why the court was asked to intervene and make multiple discovery-related orders. The court’s “instructions” would not have been necessary if Tedder had been cooperating with discovery like the other defendants.

In light of all of the above, we conclude the court did not abuse its discretion in determining there was no substantial justification factually or legally for Tedder’s ongoing refusal to cooperate at each stage of the ESI forensic search. We affirm the court’s order imposing a monetary sanction.

VIII. Amount of Sanctions

In addition to arguing the motion to compel was unwarranted because he did nothing wrong, Tedder argues the sanctions imposed were excessive. He cites to case authority holding sanctions must be designed “to accomplish the objects of discovery” not impose punishment. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487-488, disapproved on another ground in Garcia v. McCutcher (1997) 16 Cal.4th 469, 478, fn. 4.) He notes California courts have recognized “[d]iscovery sanctions rarely exceed $5,000.” (Rail-Transport Employees Assn. v. Union Pacific Motor Freight (1996) 46 Cal.App.4th 469, 475 [holding sanctions exceeding $5,000 is an appealable order].) He asserts, without the benefit of case authority that “[r]arely does a court order monetary sanctions in the thousands of dollars for a first-time offense.” Tedder concludes he did nothing wrong, but even if he is found to have committed “some minor technical violation” his actions were substantially justified and “$10,475 [was] excessive and palpably punitive.” [6]

As mentioned, the trial court has broad discretion in selecting discovery sanctions and Tedder had the burden of affirmatively demonstrating the court abused its discretion. The issue on appeal “‘is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose,’” so that defendants will not “‘benefit from their stalling tactics’” and discovery abuses. (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1619-1620.) Tedder’s briefing does not address the right question.

As stated earlier in this opinion, we agree with the trial court’s determination Tedder’s actions were not substantially justified. Moreover, this was not the first time the court had to reprimand Tedder and order him to cooperate during discovery. Tedder’s history of evasive tactics and non-responsiveness hindered Baer’s ability to prepare for depositions and respond to pending summary judgment motions. The court’s sanction order was properly designed to prevent Tedder from benefitting from his discovery violations.

IX. Sanctions on Appeal

Baer maintains that Tedder’s underlying discovery abuses and his unjustified opposition make this instant appeal frivolous and sanctionable. He recognizes a respondent may not seek sanctions by merely making a request in the briefing. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 919 [separate sanctions motion required by Cal. Rules of Court, Rule 8.276(b)(1)].) He “leaves it to this court” to decide on its own motion whether to order Tedder to show cause why the appeal is not frivolous. (Cal. Rules of Court, rule 8.276(a) [appellate court may impose sanctions on own motion]; § 907 [appellate court may add damages to costs on appeal].) Alternatively, he respectfully requests this court include in our disposition an express finding the appeal lacked substantial justification and then he plans to file a motion to recover additional sanctions before the trial court.

“‘[A]n appeal may be found frivolous and sanctions imposed when (1) the appeal was prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment; or (2) the appeal indisputably has no merit, i.e., when any reasonable attorney would agree that the appeal is totally and completely without merit.’ [Citations.]” ‘In determining whether an appeal indisputably has no merit, California cases have applied both subjective and objective standards. The subjective standard looks to the motives of the appealing party and his or her attorney, while the objective standard looks at the merits of the appeal from a reasonable person’s perspective. [Citation.] Whether the party or attorney acted in an honest belief there were grounds for appeal makes no difference if any reasonable person would agree the grounds for appeal were totally and completely devoid of merit. [Citation.]’ [Citation.] [¶] ‘The objective and subjective standards “are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay.” [Citation.] An unsuccessful appeal, however, “‘should not be penalized as frivolous if it presents a unique issue which is not indisputably without merit, or involves facts which are not amenable to easy analysis in terms of existing law, or makes a reasoned argument for the extension, modification, or reversal of existing law.’”’” (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 826.)

We conclude some of the arguments raised could be construed as frivolous, and often lacked supporting record references. However, we do not find all the challenges raised in this appeal were “‘totally and completely without merit.’” Thus, we decline to issue sanctions. (Singh v. Lipworth, supra, 227 Cal.App.4th at p. 826.)

DISPOSITION

We affirm the order granting the motion to compel and imposing monetary sanctions. Respondent shall recover his costs on appeal.

SANCHEZ, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.

[1] Our prior opinions include Castlerock Limited Partnership et al. v. Baer et al. (Dec. 12, 2001, G026308) (nonpub. opn.) affirming dismissal of multiple plaintiffs lacking capacity to sue; Banyan Limited Partnership et al. v. Baer et al. (Feb. 7, 2007, G036089) (nonpub. opn.) affirming appointment of a receiver; Banyan Limited Partnership et al. v. Baer et al. (Aug. 12, 2013, G045584) (nonpub. opn.; Banyan 1) affirming final judgment; Banyan Limited Partnership et al. v. Baer et al. (Aug. 12, 2013, G045797) (nonpub. opn.; Banyan 2) reversing postjudgment order for new trial on alter ego claims; Banyan Limited Partnership et al. v. Baer et al. (Aug. 12, 2013, G046428) (nonpub. opn.; Banyan 3) affirming postjudgment order denying attorney fees related to the second phase of trial; Banyan Limited Partnership et al. v. Baer et al. (Aug. 17, 2016, G051282) (nonpub. opn.; Banyan 4) affirming postjudgment orders regarding costs; Southern California Sunbelt Developers, Inc. v. Banyan Limited Partnership (2017) 8 Cal.App.5th 910, award of receivership fees.

[2] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

[3] We appreciate the trial court imposed monetary sanctions against both Tedder and his trial attorney, Kent. For the sake of clarity and convenience, we will refer to Tedder and Kent collectively and in the singular as Tedder (unless context requires otherwise).

[4] Failure to provide a summary of significant facts does not comply with the requirements of California Rules of Court, rule 8.204(a)(2)(C). (See Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 558 [failure to provide factual summary a “flagrant violation” of rule and factor court considered in imposing sanctions on appeal]; see also Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435-436, fn. 2 [party that provides inadequate summary of facts “cannot be heard to complain” that appellate court overlooked material facts on review of summary judgment].)

[5] Tedder recounts his full cooperation as follows: “Kent finally received the e-mails from the other defendants to which [Tedder] was a party in an accessible format in late June 2020. Pursuant to instructions of the Court in an [IDC] held in late June, . . . Kent and [Tedder] completed the review of said e-mails and submitted a Privilege Log as instructed to Setec on July 15, 2020. There was no complaint that said Privilege Log was not proper and [Baer] did not seek amendment or supplement to said Privilege Log at the time.”

[6] Ironically, Tedder’s final argument in the briefing boldly asserts the trial court had authority to award him over $10,000 in sanctions after denying the motion to compel. He maintains this sum would be reasonable because his attorney spent more than 20 hours opposing the motion to compel. Tedder claims he should be entitled to the same “loadstone calculation” of sanctions as Tedder. While we reject Tedder’s claim he should be awarded damages, his argument $10,000 would be permissible further convinces us that the court’s $10,475 award was neither excessive or unduly punitive.