Opinion
A146159
03-07-2018
CENTER FOR ENVIRONMENTAL HEALTH, Plaintiff and Respondent, v. McCORMICK & COMPANY, INC., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC-12-526395)
Defendant McCormick & Company, Inc. (McCormick) appeals from an order directing it to pay $32,399 in monetary sanctions to plaintiff Center for Environmental Health (the Center) in connection with a discovery dispute in this action to enforce the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.) (Proposition 65). McCormick contends the trial court erred in imposing sanctions because McCormick did not misuse the discovery process or act without substantial justification by unsuccessfully opposing the Center's motion to compel discovery responses or by including the Center's product testing information in its motion for a protective order. We shall affirm the order.
I. BACKGROUND
A. Proposition 65
"Proposition 65 is a 'right to know' statute requiring companies that expose consumers to carcinogens or reproductive toxins to provide a reasonable and clear warning. [Health & Saf. Code, § 25249.6.]" (Center for Self-Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1550-1551.) "Lead has been identified as a known carcinogen and reproductive toxin under Proposition 65." (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 312.) Products that expose consumers to lead must provide a warning, therefore, unless the exposure is at or below 0.5 micrograms a day, the maximum dose level at which lead has been found to have no observable reproductive effect. (Id. at p. 314.)
A private citizen or entity may bring an action to enforce Proposition 65, alleging a failure to warn, if certain requirements are met. (Health & Saf. Code, §§ 25249.7, subd. (d), 25249.11, subd. (a).) Among other things, the plaintiff must serve a notice of alleged violation, attaching a certificate of merit, on the alleged violators, the Attorney General, and various other public prosecutors more than 60 days before filing action. (Id., § 25249.7, subd. (d)(1).) The noticing party or that party's attorney must execute the certificate of merit, which "shall state that the person executing [it] has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action." (Ibid.; see Cal. Code Regs., tit. 11, § 3101 [providing the form].) In the period relevant here, "the basis for the certificate of merit . . . [was] not discoverable." (Former Health & Saf. Code, § 25249.7, subds. (h)(1), (h)(2), as amended by Stats. 2003, ch. 62, § 185, p. 503; Stats. 2013, ch. 581, § 1, p. 4827; Stats. 2014, ch. 71, § 90, p. 1785; Stats. 2014, ch. 828, § 1, p. 5412.)
B. The Proposition 65 Lawsuit
In January 2013, the Center served McCormick and the requisite public prosecutors with a pre-suit 60-day notice of violation regarding lead in ginger and plum baking ingredients. The notice alleged that McCormick violated Proposition 65 by exposing individuals to lead through its sale of these products without providing a clear and reasonable Proposition 65 warning. It identified McCormick Gourmet Collection Crystallized Ginger (Crystallized Ginger) as a non-exclusive example of the type of "ginger and plum baking ingredients" described.
Although the parties do not include a copy of the notice in their joint appendix on appeal, other documents contained in the record describe the contents, which are not the subject of dispute in this appeal.
Shortly after receiving the notice, counsel for McCormick contacted the Center to discuss the possibility of resolving the case without litigation and, on January 25, 2013, the parties executed a confidentiality agreement (the confidentiality agreement). The agreement provided: "The content of all discussions, communications and documents provided pursuant to this Agreement is confidential, including all factual information provided . . . . [T]he Parties are prohibited from disclosing to others any information provided to them pursuant to this Agreement unless it is otherwise publicly available or is obtained in the course of discovery. [¶] None of the information provided pursuant to this Agreement, in whatever form, constitutes . . . a waiver of any privilege or proper objection that may apply, or may be used in any proceeding without the express permission of the party who provided the information unless it is otherwise publicly available or is obtained in the course of discovery." On January 28, 2013, pursuant to the executed confidentiality agreement, the Center's counsel sent an email to McCormick's counsel providing a set of test reports concerning lead in McCormick's products.
In April 2013, the Center amended its previously filed complaint in this matter to name McCormick as one of the Doe defendants. The amended complaint alleged that McCormick violated Proposition 65 by selling lead-containing ginger and plum baking ingredients to California consumers without providing required warnings about the health hazards. The parties commenced discovery, and several discovery disputes developed. In February 2015, the trial court entered a stipulated order assigning a discovery referee to hear certain discovery disputes between the parties. Two of the disputes are relevant here.
C. The Center's Motion to Compel
In August 2013, the Center served McCormick with its first set of written discovery requests, including special and form interrogatories, document requests, and requests for admissions. The following month, McCormick served initial responses comprised entirely of objections. The parties then met and conferred regarding the discovery requests and responses over a period of 15 months. McCormick supplemented its responses several times and produced documents. The parties, however, remained unable to reach an agreement regarding many of the discovery requests and, in December 2014, the Center filed a motion to compel McCormick's further responses and requested sanctions (the Center's motion to compel).
D. McCormick's Motion for a Protective Order
Meanwhile, in August 2014, McCormick served the Center with written discovery requests, including requests that the Center produce its testing reports concerning the products at issue in this litigation. The Center objected and refused to formally produce the information, among other things, contending the information was protected by the attorney work-product doctrine. (See Code Civ. Proc., § 2018.030.) On December 5, 2014, however, the Center's counsel sent McCormick's counsel a letter, advising that the Center was "serving its amended [discovery] responses" and was "producing all of its testing reports regarding lead in McCormick's ginger baking ingredients pursuant to the parties' . . . confidentiality agreement." The amended discovery responses served at the same time affirmed that, "[w]hile [the Center] [was] withholding formal production of its confidential testing and expert information," it had previously produced some confidential test results "subject to a confidentiality agreement that preserve[d] all applicable privileges" and, "pursuant to the parties' confidentiality agreement," it would now "produce all of its confidential test results." The letter from the Center's counsel attached those test reports, which, on each page, contained a header stating "Privileged & Confidential Document - Subject to January 25, 2013 Confidentiality Agreement."
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
The Center's amended discovery responses included a supplemental response to special interrogatory number (SI) 4. SI 4 directed the Center to identify the ginger baking ingredients McCormick made available in California that the Center contended required a Proposition 65 warning. In response, the Center identified only Crystallized Ginger and Safeway Ground Ginger. In other amended responses, the Center admitted it did not test, or have tested, McCormick Ground Ginger or McCormick Gourmet Collection, Roasted Ground Ginger before it filed the complaint in this action.
On January 13, 2015, McCormick filed a motion for a protective order seeking to limit the Center's discovery to Crystallized Ginger. In the motion, McCormick contended that the Center did not adequately investigate, specifically identify, or properly notify it of the "ginger and plum baking ingredients" it produced that the Center contended required Proposition 65 notices; the Center should not be permitted to correct the omission by imposing burdensome discovery on McCormick; and the Center's discovery should be limited instead to the one specific product it identified in its pre-suit notice. Although McCormick did not attach to its motion any of the test reports the Center had produced the month before, at two points, the motion recounted information gleaned from the reports about the items the Center had tested for lead and its testing dates.
The Center's counsel emailed McCormick's counsel three days later, demanding that McCormick withdraw its motion and that McCormick ask the court to withdraw from its docket any documents disclosing allegedly confidential information. McCormick's counsel responded that the information included in the motion was not confidential because it only concerned testing dates, and that it was not protected by the parties' confidentiality agreement because the Center produced the information during discovery. McCormick ultimately agreed to a stipulated order, however, which the court signed on February 6, 2015, removing the original motion from the court's docket, replacing it with a redacted version that did not disclose the allegedly confidential information, and permanently sealing the original. With the parties' agreement, on March 27, 2015, the court then appointed a discovery referee to hear: McCormick's motion for a protective order; the Center's anticipated motion to strike McCormick's motion; and the Center's separate motion to compel (referenced above). The Center filed its motion to strike, with a request for sanctions, three days later, asserting that McCormick based its motion for a protective order entirely on the product testing information the Center had provided pursuant to the parties' confidentiality agreement.
E. The Referee's Recommendations and the Court's Order
The discovery referee held a hearing on the parties' motions on April 14, 2015, and then issued recommendations in the form of a proposed order on April 23, 2015. Addressing the Center's motion to compel, which took issue with McCormick's responses to 42 individual discovery requests—27 special interrogatories, 12 requests for admissions, 2 document requests, and 1 form interrogatory—the referee recommended the trial court overrule all of McCormick's objections and order McCormick to take the following actions: supplement its response to the one form interrogatory; comply with the two document requests by producing "all laboratory tests for lead in its ginger baking ingredients"; and "serve verified, complete and straightforward responses" to the remaining discovery requests.
Regarding McCormick's motion for a protective order, the referee reached the following conclusions: the Center provided its test reports to McCormick subject to the parties' confidentiality agreement and not in the course of discovery; McCormick violated the confidentiality agreement by using information from those reports in its motion for a protective order; and McCormick misused the discovery process in doing so. Observing that McCormick did not publish the actual reports themselves or other detailed information from them, however, and that it "acted swiftly and at considerable cost to remove the confidential information from the public record" once the Center objected, the referee rejected as "too drastic" the Center's assertion that the appropriate sanction was to strike McCormick's motion for a protective order. Instead, the referee recommended the court order McCormick to pay $32,399 in monetary sanctions "for misuse of the discovery process and as the prevailing party" to reimburse the reasonable expenses, including attorneys' fees, that the Center incurred as a result of McCormick's conduct. The referee calculated the recommended sanctions based on evidence the Center submitted that it had incurred the following costs: in opposing McCormick's motion for a protective order and in bringing its own motion to strike and for sanctions, $23,278 in attorneys' fees, $90 in court-related fees, and $4,625 for the referee's services; and in bringing its motion to compel, $4,296 for attorneys' fees and $110 in costs.
The referee also recommended denying McCormick's motion for a protective order on the merits, concluding the complaint's reference to " 'ginger and plum baking ingredients' " was more specific than other terms—such as " 'cigars' " and " 'smokeless tobacco' "—"found to be sufficient to identify consumer products alleged to have violated Proposition 65." (Citing Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal.App.4th 953, 970, 976-977.)
On May 5, 2015, McCormick filed objections to three of the referee's recommendations, requesting that they be set aside. Specifically, McCormick objected to the recommendations that it be ordered to: supplement its responses to SI 21 and SI 24, which sought information about programs to test for lead in its ginger baking ingredients; respond to document requests seven and eight by producing all laboratory tests for lead in its ginger baking ingredients; and pay sanctions. The Center filed a response to McCormick's objections on May 13, 2015. On June 24, 2015, the trial court adopted the discovery referee's recommendations in full as the final order of the court. This timely appeal followed.
The Center advises that the trial court has since approved a consent judgment resolving all issues raised in the Center's case against McCormick, the sole exception being this discovery matter, which the parties explicitly preserved for resolution through this appeal.
II. DISCUSSION
A. Legal Principles
" ' "Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, . . . [and] unsuccessfully making or opposing discovery motions without substantial justification . . . ." [Citation.]' [Citations.]" (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1285 (Clement), italics omitted.) " 'The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process . . . pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct . . . . 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.' (§ 2023.030, subd. (a), italics added.)" (Ibid.; see also id. at p. 1292 ["expenses should ordinarily be imposed unless a court finds that the losing party acted justifiably in carrying his point to court"].) " 'There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed.' [Citations.]" (Id. at pp. 1286-1287.)
"[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. [Citations.]" (Does v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434 (U.S. Swimming).) Sanctions may be improper if "the law regarding [an] issue is unsettled and [a party's] argument was based on available authority." (Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, 747-748 (Diepenbrock).) The burden of proving "substantial justification" "is on the losing party claiming that it acted with 'substantial justification.' [Citations.]" (U.S. Swimming, supra, 200 Cal.App.4th at p. 1435.) "The trial court must make a finding this exception exists," but it "need not make an explicit finding the exception does not exist as this is implied in the order awarding sanctions." (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 294 (Parker).) " 'Discovery sanctions "should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." ' [Citation.]" (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)
" 'We review the trial court's ruling on a discovery sanction under the deferential abuse of discretion standard. [Citation.]' [Citation.]" (U.S. Swimming, supra, 200 Cal.App.4th at p. 1435.) " '[W]e will reverse only if the trial court's action was " ' "arbitrary, capricious, or whimsical." ' " [Citations.]' [Citations.] ' "It is [appellant's] burden to affirmatively demonstrate error . . . ." [Citation.] 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. [Citation.]' [Citation.]" (Clement, supra, 177 Cal.App.4th at p. 1286.)
B. Analysis
1. The Center's Motion to Compel
McCormick's initial responses to the Center's discovery requests were comprised entirely of objections. For the next 15 months, the parties met and conferred regarding the requests and responses. McCormick served several supplemental responses, and produced an unspecified number of documents. But a dispute remained regarding the responses McCormick had provided to 42 of the Center's discovery requests, and the Center filed a motion to compel, requiring the court's intervention. After thorough briefing and a lengthy hearing, the discovery referee's recommendations, without exception, validated the Center's position regarding the inadequacy of McCormick's responses. The referee recommended the trial court overrule all of McCormick's objections, order McCormick to serve "complete and straightforward responses" to the requests, and require it to pay sanctions. McCormick objected, but only specifically challenged the referee's conclusions regarding 4 of the 42 discovery requests and the recommendation regarding sanctions. In objecting to sanctions, McCormick contended it had acted with substantial justification, because it met and conferred with the Center, supplemented its discovery responses, and produced all nonprivileged responsive information. McCormick did not discuss the legal merits of its objections or the sufficiency of its responses. Unpersuaded, the trial court adopted the referee's report as its order, making no changes.
In its opening brief on appeal, McCormick does not challenge the trial court's rulings regarding the legal merits of its objections or the adequacy of its discovery responses. Instead, repeating its unsuccessful argument before the trial court, McCormick contends sanctions were not warranted, because it "engaged in extensive good faith meet and confer efforts", supplemented its responses, and produced documents. The Center therefore "undisputedly" had all responsive "nonprivileged information" in its possession, McCormick asserts. The last assertion is offered without explanation or citation to the record and ignores the referee's finding—which McCormick never challenged—that it failed to adequately respond to 38 of the Center's discovery requests. By failing below to object to the referee's findings regarding the inadequacy of the majority of its challenged responses, or to contend that its objections to discovery were well founded, McCormick forfeited the right to contest those points. (Estate of Zucker (1990) 218 Cal.App.3d 1198, 1206.)
Even if the issues were not forfeited, however, we would reject McCormick's contention that the trial court erred in imposing sanctions because McCormick relies on a fundamental misunderstanding of the standard required to establish substantial justification. The existence of substantial justification does not turn on a party's intent. (See Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 878 ["intent is not relevant" in determining the propriety of monetary sanctions].) The question is whether the party acted "justifiably in carrying [its] point to court" (Clement, supra, 177 Cal.App.4th at p. 1292), i.e., whether it took a position that was " 'well grounded in both law and fact' " (Diepenbrock, supra, 208 Cal.App.4th at p. 747). Monetary sanctions " ' "should ordinarily be imposed unless a court finds that the losing party acted justifiably." ' " (Clement, supra, at p. 1292.) As we have described, a party is justified in opposing a motion to compel, even if ultimately unsuccessful, if the law regarding an issue is unsettled and the party bases its argument on available authority. (Diepenbrock, supra, at pp. 747-748.) Here, however, in challenging the trial court's ruling on appeal, McCormick does not argue the merits of its objections and responses but asserts only that McCormick "worked extensively with [the Center] through the meet and confer process," "supplemented its written responses on five separate occasions," and "substantially responded" to each discovery request, even objectionable ones. McCormick says nothing about its inadequate responses or its unfounded objections. In short, McCormick has not shown that its unsuccessful opposition to the Center's motion to compel was substantially justified. (U.S. Swimming, supra, 200 Cal.App.4th at p. 1435 [the burden is on the party opposing sanctions].) We must, therefore, conclude that the trial court did not err or abuse its discretion in imposing sanctions.
McCormick addresses these points to some extent in its reply brief. As it offers no explanation for its delay in doing so, however, we do not consider those arguments. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 ["Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument"].)
Attempting to avoid this conclusion, McCormick makes a number of assertions in its opening brief that lack adequate support in the record. For example, citing only its own counsel's hearsay statement, McCormick asserts the Center originally offered to give it until January 15, 2015 to further supplement its discovery responses, but then "prematurely" "rushed" to file its motion to compel on December 11, 2014. McCormick does not explain how the motion may fairly be considered premature or rushed when it was filed 15 months after McCormick served its initial responses (comprised solely of objections); nor does it indicate how the asserted facts support the conclusion that it acted with substantial justification in opposing the Center's motion to compel. McCormick also contends the Center acknowledged McCormick's responses were "extensive and detailed," citing a page from the Center's motion to compel in which the Center described one of McCormick's interrogatory responses as both "detailed" and insufficient. Finally, McCormick points out that at least one of its "third supplemental" interrogatory responses was two and a half pages long and "[was] supported by hundreds of pages" of documents. It is the content, not the volume, of a discovery response, however, that is relevant in determining whether the party propounding it acted with substantial justification.
We further note that, while McCormick's artful wording suggests it actually produced "hundreds of pages of documents," the cited discovery response explicitly referenced only two pages of produced documents. In its appellate reply brief, McCormick similarly asserts that it "produced over 5,000 pages of documents," although the cited portion of the record does not support the assertion.
Finally, McCormick contends the trial court committed reversible error by imposing sanctions against it without expressly addressing McCormick's claim that it was substantially justified in opposing the motion. The omission suggests the court did not consider the issue, McCormick asserts. This argument was rejected in Parker, supra, 149 Cal.App.4th 285, a case McCormick cites, although for a different proposition. Parker observed: "Section 2030.300, subdivision (d) states: 'The trial court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.) . . . [T]he plain language of the statute requires the trial court to impose a monetary sanction even for the first offense. The only exception to this requirement is for a circumstance constituting a 'substantial justification' for failing to respond. The trial court must make a finding this exception exists. The court need not make an explicit finding the exception does not exist as this is implied in the order awarding sanctions." (Id. at p. 294, italics added.)
As McCormick fails to affirmatively demonstrate the trial court erred or abused its discretion in ordering it to pay sanctions for opposing the Center's motion to compel, the order is affirmed.
2. McCormick's Motion for a Protective Order
McCormick next contends the trial court abused its discretion by requiring it to pay sanctions for including in its motion for a protective order information that it gleaned from test reports the Center provided. As previously discussed, the discovery referee concluded that the Center provided those test reports to McCormick subject to the confidentiality agreement, that McCormick violated the confidentiality agreement by using information from the reports in its motion, and that the action qualified as a misuse of the discovery process warranting sanctions. McCormick contended in the objections it filed with the trial court, and it contends again on appeal, that sanctions were not authorized because its conduct did not constitute a misuse of the discovery process and because it acted with substantial justification. McCormick's arguments in both contexts, and on both points, are identical.
First, as it did in objecting to the referee's report, McCormick cursorily contends it was substantially justified in concluding the Center's assertion of privilege could not shield factual information contained in the test reports. As support for this assertion, McCormick cites Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, which held that the " 'identity and location of persons having knowledge of relevant facts' " could not be shielded by privilege. (Id. at p. 1004.) What McCormick fails to do, however, is to address either the Center's assertion that the test reports were prepared at counsel's direction in anticipation of litigation or the cases the Center cited in the trial court, supporting the argument that reports of an expert consultant are protected until the expert is designated as a witness. (Armenta v. Superior Court (2002) 101 Cal.App.4th 525, 534.) We will therefore "treat this issue as waived for want of cognizable legal argument. [Citation.]" (Aviel v. Ng (2008) 161 Cal.App.4th 809, 821.) Although McCormick attempts, in its reply brief, to develop the argument, "it is too late. We disregard issues not properly addressed in the appellant's opening brief. [Citation.]" (Ibid.)
Even if we were to consider the argument and to conclude that the attorney work product doctrine did not apply to the testing reports, however, we would reject McCormick's argument that it was free to reveal information gleaned from the test reports. McCormick contends the Center produced the reports in discovery and not pursuant to the confidentiality agreement. Both the referee and the trial court rejected this argument, noting the following points: the Center's letter enclosing the test reports explicitly stated the Center was "producing all of its testing reports . . . pursuant to the parties' January 25, 2013 confidentiality agreement"; the formal discovery responses the Center served at the same time affirmed that, while the Center was "withholding formal production of its confidential testing . . . information," it would produce "all of its confidential test results" "pursuant to the parties' confidentiality agreement"; and each page of the test reports contained a header stating that it was covered by the confidentiality agreement.
Without addressing these facts, McCormick highlights the Center's admission in its separate discovery responses that it did not subject two of McCormick's products to testing before the litigation commenced. In so doing, McCormick implicitly suggests the disputed portions of its motion for a protective order relied only on those discovery responses. As the referee and the trial court both found, however, the factual assertions regarding the Center's pre-litigation testing included in McCormick's original (unredacted) motion for a protective order were broader and could only have been supported by the confidential testing reports.
McCormick also contends the test reports were produced during discovery—and therefore came within an exception to the parties' confidentiality agreement—because the Center's letter enclosing the test results expressly referred to the parties' ongoing meet and confer process concerning discovery, and the Center served its amended discovery responses at the same time. The assertion is contradicted by the Center's repeated insistence, discussed above, that it was producing the test reports pursuant to the parties' confidentiality agreement and not as part of its formal discovery responses. As McCormick does not deny the Center expressly invoked the agreement, its argument here borders on the frivolous. To the extent there is an evidentiary conflict, however, we must "resolve all evidentiary conflicts most favorably to the trial court's ruling." (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 401.)
In its opening brief, McCormick contends sanctions also were not warranted because, as the referee acknowledged, it acted " 'swiftly and at considerable cost to remove the confidential information from the public record.' " McCormick does not explain how its conduct after it filed the motion for a protective order disclosing confidential information demonstrated it acted with substantial justification in filing the motion, nor does it cite case law indicating that a party's remedial measures will support a conclusion the underlying conduct was justified. (See Clement, supra, 177 Cal.App.4th at p. 1292 [in evaluating the propriety of an order imposing monetary sanctions, the question is whether the party acted "justifiably in carrying [its] point to court"].) We agree with the referee and the trial court that McCormick's swift response once the Center objected was relevant in determining the proper extent of the sanctions, but did not establish McCormick acted with substantial justification when it included the protected information in its motion. (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992 [" 'Discovery sanctions "should be appropriate to the dereliction" ' "].)
We reach the same conclusion regarding McCormick's assertion in its reply brief that it exercised restraint by not attaching to its motion for a protective order, or disclosing therein, the full contents of the testing reports.
Finally, in its appellate reply brief, McCormick raises three new arguments that the trial court erred in imposing sanctions. We reject these arguments because they are asserted for the first time in the reply brief, giving the Center no opportunity to respond to them. (People v. Tully (2012) 54 Cal.4th 952, 1075.) Even if this were not the case, however, we would reject them on the merits. First, McCormick contends the order imposing sanctions made no sense because the trial court denied the Center's motion to strike McCormick's protective order, which was premised entirely on the asserted disclosure of confidential information. This is inaccurate. Although the trial court did deny the Center's request that it sanction McCormick by striking its motion for a protective order, because it concluded that was "too drastic a remedy," the trial court concluded McCormick did misuse the discovery process by including protected information in its motion and, therefore, granted the Center's request for monetary sanctions. The decision was entirely reasonable and, contrary to what McCormick suggests, did not imply a conclusion that McCormick acted with substantial justification.
As noted, the trial court then denied McCormick's motion for a protective order on the merits.
McCormick also cursorily contends sanctions were not appropriate here because the Center did not identify any prejudice it suffered from the disclosure of the protected information. As support for this contention, McCormick cites the trial court's observation, in declining to strike the motion for a protective order, that the circumstances were not similar to those set forth in Tower Action Holdings v. Los Angeles County Waterworks Dist. No. 37 (2002) 105 Cal.App.4th 590. The cited case reversed a jury verdict based in part on the conclusion that the trial court committed prejudicial error by admitting evidence of the parties' confidential settlement negotiations. (Id. at pp. 594, 600-602.) The case does not stand for the proposition that a court may only impose sanctions for misuse of the discovery process if the injured party presents evidence of prejudice. As McCormick cites no on-point authority supporting its argument, we decline to consider it. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
Finally, McCormick contends in its reply brief that it was substantially justified in filing its motion for a protective order because the Center failed to adequately investigate before filing this action. This argument also is undeveloped, and we consequently reject it, because McCormick does not explain how the Center's assertedly inadequate pre-litigation investigation, if true, justified its own use of information that it acquired pursuant to the parties' confidentiality agreement in an unredacted motion that it filed with the court. As McCormick does not affirmatively demonstrate the trial court erred in imposing sanctions based on this conduct, we affirm the order.
III. DISPOSITION
The trial court's June 24, 2015 order directing McCormick to pay the Center $32,399 in monetary sanctions is affirmed. The costs on appeal are awarded to respondent.
/s/_________
Schulman, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Streeter, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.