Opinion
B322128
10-16-2023
JOSHUA JOINER, Plaintiff and Appellant, v. ENGINEER.AI CORP., Defendant; BARRY B. KAUFMAN, Objector and Appellant; ADAM BERGER et al., Respondents.
Barry B. Kaufman, in pro. per., and Law Offices of Barry B. Kaufman and Barry B. Kaufman for Plaintiff and Appellant. Willkie Farr & Gallagher, Matthew M. Gurvitz and Amy M. Stern for Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20STCV21399 Barbara M. Scheper, Judge. Affirmed.
Barry B. Kaufman, in pro. per., and Law Offices of Barry B. Kaufman and Barry B. Kaufman for Plaintiff and Appellant.
Willkie Farr & Gallagher, Matthew M. Gurvitz and Amy M. Stern for Respondents.
MARTINEZ, J.
INTRODUCTION
Plaintiff Joshua Joiner and his counsel, Barry Kaufman, appeal from an order quashing plaintiff's trial subpoenas and awarding sanctions in the amount of $11,251.50 to respondents Adam Berger, Scott Barclay, and George Mathew. We conclude the trial court did not abuse its discretion in issuing the sanctions award and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff's Underlying Employment Litigation
Plaintiff was employed by Engineer.AI Corp. from April 2019 until he was terminated in May 2020. In June 2020 he filed a complaint against Engineer.AI, alleging causes of action for wrongful termination, termination in violation of public policy, retaliation against a whistleblower, national origin discrimination, and defamation. The complaint accuses his former employer and certain individual principals of defrauding investors and engaging in discrimination. None of the respondents to this appeal are mentioned in the complaint.
Plaintiff's complaint alleges defendant changed its name over time. For ease of reference, we refer to defendant as Engineer.AI, the name used in respondents' brief.
Insight Venture Partners (Insight) is a private equity firm with headquarters in New York City, New York. Respondents are managing directors of Insight who all reside in California: Berger resides in Los Angeles; Barclay in Palo Alto; and Mathew in Burlingame.
B. Plaintiff's Counsel Issues Trial Subpoenas and Document Demands to Respondents
In March 2022, almost two years after plaintiff's employment with Engineer.AI ended and the underlying lawsuit was filed, Engineer.AI issued a press release announcing "an investment of $100 million in a Series C funding round led by Insight Partners, a New York-based global venture capital and private equity firm." The press release describes Insight as "[h]eadquartered in New York City . . . [with] offices in London, Tel Aviv, and Palo Alto," and as having "invested in more than 600 companies worldwide." In early April 2022, less than a week after the press release, plaintiff's counsel sent a letter to Insight's general counsel. In his letter Kaufman expressed concern "based on my knowledge of the partiers [sic] that you may not have been aware of the pending 'whistleblower' retaliation lawsuit" filed by plaintiff. He further asserted that "[d]iscovery has confirmed virtually all of the material allegations of the Complaint." In closing, Kaufman asked Insight to contact him in the event his "suspicions are correct and the Joiner lawsuit was not fully disclosed to Insight partners before its investment" in Engineer.AI.
The record does not reflect any response by Insight. Approximately six weeks later, Kaufman attempted to serve the three respondents with trial subpoenas duces tecum in plaintiff's lawsuit. None of the respondents were served personally. On May 16, 2022 someone approached Berger's home in Los Angeles and handed a subpoena to his son. On May 18 someone taped a subpoena to the front door of Mathew's home in Burlingame, California. The same day, an unidentified person handed a subpoena to Barclay's wife at their home in Burlingame. The list of documents demanded in response to the subpoena, and the affidavit of materiality and good cause for producing those documents, is identical for each of the subpoenas. Each subpoena identifies its named respondent as "Managing Director of Insight Partners."
C. The Parties Meet and Confer Regarding the Trial Subpoenas
The response to the subpoenas was swift. On May 23, 2022 respondents' counsel sent a letter to Kaufman accusing him of "completely unprofessional and grossly improper" conduct and describing the subpoenas as "beyond the pale, procedurally and substantively improper, and . . . clearly served to burden and harass individuals who have nothing to do with this dispute." Counsel's letter asserted that respondents "have had no involvement with [Engineer.AI], did not work on this investment, and have no information or documents responsive to your subpoenas." Respondents demanded that plaintiff "withdraw his subpoenas and focus on his upcoming trial," but warned that if the subpoenas were not withdrawn, "we will not desist in our efforts to bring these abusive and grossly inappropriate litigation tactics to light and seek any and all fees and costs incurred in so doing."
By letter dated May 25 Kaufman responded in kind. He derided respondents' arguments as "nonsensical, "sophomoric," "silly objections" and "inflammatory hyperbole." He also explained the reasons why he opted to serve these subpoenas on the respondents: "If Insight Partners' $100 million investment in [Engineer.AI] had been publicly-announced before the discovery cut-off in October 2021, I would have asked the Court to approve a Commission to take out-of-state discovery and served both a 'person most knowledgeable' deposition subpoena and a subpoena duces tecum to its custodian of records. Unfortunately, the investment and public announcement came almost on the eve of trial, so the only option was to serve the Subpoenas on the Insight Partners Managing Directors located in California. I selected the Managing Directors who, from a review of their biographies on the company website, appeared to be most knowledgeable and involved in the technology investment side of Insight Partners investment portfolio."
He also confirmed that "none of the Subpoenas ask the Subpoenaed Individuals to 'accept service on behalf of Insight [Partners].' Rather, the Subpoenas are directed to them individually." Kaufman concluded as follows: "[t]o make sure there is no misunderstanding, please be clear that I am not going to withdraw the Subpoenas under any circumstances and will fight as vigorously as necessary to obtain the sought-after testimony and the documents identified in the Subpoenas." He did, however, offer that if Insight would produce its New Yorkbased principal for a deposition "so that I may interrogate him concerning the representations made by [Engineer.AI] to Insight Partners before and during the 'due diligence' process leading up to the Series C investment earlier this year," that "may obviate the necessity of having to call [the respondents] at trial and may even help to limit the scope of the production of documents responsive to the 25 requests included in the Subpoenas." Finally, Kaufman answered respondents' sanctions threat with a threat of his own, citing earlier discovery sanctions awarded by the trial court: "If you wish the same fate for your clients, just keep it up."
During the ensuing week, Kaufman and respondents' counsel exchanged e-mails, including declarations from the respondents disclaiming their knowledge of either Insight's investment in Engineer.AI or the facts and circumstances at issue in plaintiff's action against Engineer.AI. Neither side moved from its position in the initial correspondence. Kaufman's last word on the subject, in an e-mail on May 31, was as follows: "Notwithstanding the declarations you prepared, I don't believe for a minute that Messrs. Berger, Barclay and Mathews lack any knowledge of the $100 million dollar capital investment in [Engineer.AI] made by Insight Partners. Neither do I believe that none of them were involved in any way in the 'due diligence' performed by Insight Partners before the investment was made. I know I can impeach that story, so if you insist on filing a Motion to Quash, those declarations could put each of them at risk for perjury. I know the Court will allow me to call them and interrogate them to prove that point in the rebuttal phase of the case, so if you are standing firm, I must as well."
These declarations are not in the record, but plaintiff makes no argument they differ from the declarations respondents filed with the motion to quash.
Respondents' answer, sent on June 1, was as follows: "On May 26, I wrote: 'In response to your inquiry, there are no Insight Partners located in California with knowledge of the [Engineer.AI] investment, including the individuals you have attempted to serve with trial subpoenas.' Despite this and the declarations we provided establishing the individuals you are attempting to serve lack any knowledge, you have refused to withdraw your subpoenas. We have no choice and will be filing our motion to quash today."
D. Respondents File a Motion To Quash Requesting Monetary Sanctions
On June 1 respondents served their motion for an order quashing the subpoenas in question, staying compliance with them pending the ruling on the motion, and for an otherwise undescribed protective order. In addition, respondents asked for an award of sanctions in the amount of $24,132.99 against plaintiff and Kaufman, citing Code of Civil Procedure section 1987.2. In support of their motion, respondents reiterated their arguments made in their counsel's May 23 letter: respondents were not personally served with the subpoenas as required by statute, respondents are not custodians of Insight's records and have no obligation to produce Insight's documents, the declarations accompanying the subpoenas do not specify the "exact things" to be produced at trial and the declarations do not show materiality or good cause for production, and respondents have no personal knowledge about Insight's investment in Engineer.AI. Accompanying the motion were declarations from each of the respondents attesting to his lack of knowledge regarding Insight's investment in Engineer.AI. A declaration from respondents' counsel provided details about Insight's efforts to meet and confer with Kaufman and facts supporting Insight's request for sanctions. Insight also filed a 29-page separate statement setting out objections to each document request in plaintiff's subpoenas.
Plaintiff's opposition reiterated the arguments in Kaufman's May 25 letter. It accused Insight of aiding Engineer.AI in covering up investor fraud: "It takes no leap of faith to conclude that Plaintiff must be dangerously close to exposing to the world that [Engineer.AI] is no different than Theranos was in its false claims, and that Insight Partners thinks the best way to thwart exposure of the truth is to try to bully Plaintiff and his counsel into submission." He also suggested to the court that Insight's real purpose in objecting to the subpoenas was to conceal from its own investors that it had been defrauded by Engineer.AI. "Plaintiff understands that Insight Partners may be concerned about potential liability to its clients about having blindly funded $100 million of their investors' capital in [Engineer.AI] without researching whether it actually possessed AI technology-and thus now wishes to extricate itself entirely from this matter."
Plaintiff expressly acknowledged the purpose of the trial subpoenas was to circumvent the discovery cutoff: "Plaintiff's counsel acknowledges that it would have been vastly preferable to have sought a Commission to take the deposition of the Insight Partners PMK about the [Engineer.AI] investment, but the discovery cut-off passed over eight months ago." Plaintiff further acknowledged he considered, and decided against, asking the court to reopen discovery to permit plaintiff to serve a subpoena on Insight's custodian of records in New York. Nonetheless, plaintiff argued that the court should deny the motion to quash because respondents could produce records that would prove "the value of Plaintiff's stock option losses" and "peel back the Layers of the onion to reveal the true extent of the investor still fraud [sic] being committed by [Engineer.AI] despite Plaintiff's efforts . . . to blow the whistle and prevent the spoliation of investor and consume [sic] funds."
Plaintiff acknowledged that he did not "know with certainty which of the subpoenaed individuals participated in or [has] knowledge of the details of the $100 million investment in [Engineer.AI]." Nonetheless, plaintiff urged the court to disbelieve respondents' declarations, arguing that "[i]t strains credulity to believe that three different managing Directors of Insight Partners . . . all lack any knowledge of the company in which their firm made a $100 million investment."
E. The Trial Court Quashes the Subpoenas, Issues a Protective Order, and Imposes Monetary Sanctions
Respondents' motion to quash was heard three days before the scheduled trial date. At the hearing, the trial court told the parties of its tentative ruling to grant the motion to quash and award sanctions, explaining its reasons before hearing argument from the parties. First, the court explained the defectively served subpoenas should have been withdrawn:
"When the motion [to quash] was filed, it seems clear that at that time, there was no valid proof of service that they were personally served. And, in fact, there was sworn testimony in the form of declarations that service was not proper. Plaintiff opposed, nonetheless. And it appears that as part of that opposition and the recently filed proofs of service, two of the three witnesses may [now] have been properly served.... So it appears to me that, at a minimum, from a procedural standpoint, those subpoenas should have been withdrawn, both because the proofs of service-well, I think I've only seen one as part of the initial motion because I don't think any others were available, but the sworn testimony should have demonstrated that there was no proper service."
The court then ruled the subpoenas were served for an improper purpose and sought irrelevant information:
"Turning to the merits, I don't think there's any good cause to subpoena these individuals. I think the statement of materiality [filed by Kaufman] is based on speculation. It appears to the court that many of the documents requested go more to whether this investor did a proper due diligence, which is entirely irrelevant to the proceedings in this court, and I believe was designed to get maximum pressure to encourage the people in New York to provide the information that the plaintiff now seeks.
"I think, perhaps most importantly, there is no indication, because all this is speculative, that the documents, to the extent they exist, would reflect development of this artificial intelligence that would be the same as the stage of development when the plaintiff was employed and during which time he complained that the defense was exaggerating or, in fact, flat-out misstating the status of the development of that.
"And so since the plaintiff has not worked there since 2020, it appears to the court that this would end up, if the court allowed it, devolving into an examination and a comparison of what the development was back when plaintiff objected and what it is now, which would be excluded on [Evidence Code section] 352 grounds."
Finally, the court addressed the amount of sanctions: "I do think that moving parties have requested too much, so I've cut them in half. So that would be $11,251.50."
After hearing argument from plaintiff, and after respondents deferred to the court's tentative ruling, the court adopted its tentative ruling. It signed an attorney-drafted order submitted by respondents. The court's order quashed the subpoenas, barred plaintiff from attempting to reissue trial subpoenas to respondents, and directed "Plaintiff and/or his counsel" to pay respondents $11,251.50, "which represents their reasonable attorneys' fees and costs incurred in bringing the Motion."
A timely notice of appeal was filed.
DISCUSSION
A. Appellate Jurisdiction
As a threshold matter, there are two issues stemming from the notice of appeal. First, we have jurisdiction to review the sanctions award, but, despite plaintiff's arguments, we lack jurisdiction to review the protective order. 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)" is appealable. (Code Civ. Proc., § 904.1, subd. (a)(12).)Respondents correctly argue the protective order is appealable only from the final judgment. (See Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1060 ["discovery rulings are not directly appealable and are subject to review only after entry of a final judgment," citing Southern Pacific Co. v. Oppenheimer (1960) 54 Cal.2d 784, 785-786, and Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 531].)
All further statutory references are to the Code of Civil Procedure.
Second, although the trial court ordered sanctions payable by "Plaintiff and/or his counsel," the notice of appeal states only that "plaintiff-appellant Joshua Joiner" is appealing. A notice of appeal "must be liberally construed," and "is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2).) In K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th 875, the Supreme Court held that "a reviewing court must construe a notice of appeal from a sanctions order to include an omitted attorney when it is reasonably clear that the attorney intended to join in the appeal, and respondent was not misled or prejudiced by the omission." (Id. at p. 885.) Here, it is reasonably clear Kaufman intended to join the appeal, and respondents have fully briefed the issues without objecting to Kaufman as a co-appellant.
For convenience, references in the rest of the opinion to plaintiff include his attorney Kaufman.
B. Standard of Review
We review an order awarding sanctions under section 1987.2 for abuse of discretion. (Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1311 (Evilsizor).) Under that standard, "'"[a] court's decision to impose a particular sanction is 'subject to reversal only for manifest abuse exceeding the bounds of reason.'"'" (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.) We defer to the trial court's weighing of the evidence underlying its exercise of discretion to award sanctions. We do not reweigh the evidence, reconsider the trial court's determination of the credibility of declarants, or the weight to be afforded those declarations. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-79; accord, Galbiso v. Orosi Public Utility District (2008) 167 Cal.App.4th 1063, 1078.) Finally, we defer to inferences reasonably drawn from the evidence before the trial court. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 623.)
C. The Trial Court Did Not Abuse Its Discretion by Awarding Sanctions
Plaintiff contends the trial court abused its discretion by imposing sanctions because the court purportedly did not state the basis for its ruling and failed to do so in writing, which in turn violated due process because he was not on notice regarding the conduct leading to sanctions. These arguments are unmeritorious.
Plaintiff does not challenge the amount of sanctions the trial court awarded, which was approximately half the amount respondents requested.
1. The trial court adequately explained the reasons for the sanctions order at the hearing
Respondents sought an award of sanctions under section 1987.2. That statute provides, in pertinent part, that the trial court "may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion [to quash], including reasonable attorney's fees, if the court finds the motion was made or opposed in: [1] bad faith; [2] without substantial justification; or [3] that one or more of the requirements of the subpoena was oppressive." (§ 1987.2, subd. (a).) Although the trial court did not expressly mention section 1987.2, plaintiff concedes in his opening brief that "[t]he sanctions award against Appellant and his counsel was premised on Code of Civil Procedure § 1987.2(a)." Further, the reporter's transcript reflects the court granted sanctions because it found plaintiff's opposition to the motion to quash was without substantial justification and in bad faith.
"[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 v. United States Swimming, Inc., supra, 200 Cal.App.4th at p. 1434.) The record supports the trial court's determination that plaintiff lacked substantial justification to oppose the motion to quash because the opposition (or for that matter the subpoenas) lacked grounding in law or fact.
First, plaintiff opposed the motion to quash even though he had not personally served the subpoenas, as required by section 1987, subdivision (a), and the respondents had all attested they had not been personally served. Next, even if the subpoenas complied with the formal requirements of section 1985, subdivision (b), the information plaintiff sought was not relevant to any issue in his dispute with Engineer.AI. Third, plaintiff served the subpoenas knowing that the respondents were not custodians of records for Insight and could not be compelled to produce Insight's documents (see Chapman v. Superior Court (1968) 261 Cal.App.2d 194, 198), much less its documents located in New York. (See Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London (1995) 34 Cal.App.4th 554, 560.) Fourth, by his own admission plaintiff sought to evade the court-ordered discovery cutoff. He acknowledged that the proper procedure would have been a request to reopen discovery for the purpose of deposing Insight's custodian of records in New York. The trial court did not abuse its discretion by ruling that plaintiff lacked substantial justification to oppose the motion to quash.
This evidence also dispenses with plaintiff's contention that "there simply is no evidence here to support the conclusion that Appellants, or either of them, acted in 'bad faith.'" To the contrary, "we must presume in favor of the trial court's order "'every finding of fact necessary to support it'" [Citation]-namely, an implied finding that [plaintiff] acted in bad faith." (In re Marriage of Sahafzadeh-Taeb &Taeb (2019) 39 Cal.App.5th 124, 145.) The court did not need to discern an evil motive to determine plaintiff acted in bad faith; instead, it only needed to find "the action or tactic [at issue] is being pursued for an improper motive" (Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, 1072), or "even if on technically correct legal ground . . . unreasonably or unnecessarily injures the opposing counsel or party." (West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 702.)
As noted above, plaintiffs undisputed conduct provides ample support of bad faith for purposes of section 1987.2. Briefly: plaintiff conceded the subpoenas were designed to circumvent the discovery cutoff; he subpoenaed the respondents based solely on their California residency and without a good-faith belief they could provide admissible testimony or produce documents; and, he sought to enforce these subpoenas, and opposed a motion to quash, although he knew or should have known his tactics were both improper and unnecessarily burdened respondents. As the trial court found, the subpoenas were all motivated by plaintiffs improper goal of exerting "maximum pressure [on respondents] to encourage the people in New York to provide the information that the plaintiff now seeks." On review of the trial court's sanctions order, we do not substitute our own weighing of the evidence and permissible inferences (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867), nor do we substitute our discretion for that of the trial court (Evilsizor, supra, 230 Cal.App.4th at p. 1313).
Although the trial court did not award sanctions on this basis, we note the record would also support a finding the subpoenas were "oppressive" because several of the 25 document requests demanded, for example, "all documents relating to" or "all documents which describe or relate to" several broad categories (capitalization omitted). By contrast, section 1987, subdivision (b), requires trial subpoenas "specify[] the exact matters or things desired to be produced." (§ 1987, subd. (b); see Pacific Auto. Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 70 [quashing subpoena where "request for all correspondence, records and documents was too broad" and subpoena "made no attempt to specify any particular documents"].)
2. Under the circumstances no written order detailing the court's reasoning was necessary, and due process was satisfied
Plaintiff contends the court's oral recitation was insufficient and that due process required the court to issue a written order specifying the conduct that was the basis for the award of sanctions.
Citing First City Properties v. MacAdam (1996) 49 Cal.App.4th 507, 517 (MacAdam), plaintiff argues the court's formal written order falls short of the due process requirement that it issue "a detailed statement specifying its reasons for imposing the sanctions." Plaintiff misreads MacAdam. In MacAdam the court of appeal reversed an order awarding sanctions, not because the written order failed to recite the basis for the award, but because the reasons for the award of sanctions did not appear anywhere in the record. As the court observed, "it is unclear what statute the court used as authority for its issuance of sanctions, the reporter's transcript and minute order do not enlighten us as to the precise reasons for the order, and the order prepared by counsel . . . fails to set forth the statutes and reasons." (Id. at p. 516.) Under those circumstances, the court concluded that "[f]ailure to delineate the grounds for exercise of discretion precludes meaningful review, a denial of due process." (Id. at p. 516.) Here, by contrast, there is no doubt about the statute under which plaintiff was sanctioned: respondents sought sanctions under section 1987.2, and as noted above, plaintiff concedes "the sanctions award against Appellant and his counsel was premised on Code of Civil Procedure § 1987.2(a)."
Far from requiring a detailed written order whenever sanctions are awarded under section 1987.2, MacAdam cited Olson Partnership v. Gaylord Plating Lab, Inc. (1990) 226 Cal.App.3d 235, 241, for the proposition that "a detailed formal order is not required where the reporter's transcript and minute order reveal specific reasons for imposition of sanctions." (MacAdam, supra, 49 Cal.App.4th at p. 517, fn. 9.) Cases following MacAdam confirm due process is satisfied where, as the trial court did here, the reasons for awarding sanctions are recited orally at the hearing. (See, e.g., Evilsizor, supra, 230 Cal.App.4th at p. 1313 [oral statement by the trial court "satisfied the court's duty to specify the reasons for imposing sanctions"]; Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1121 ["The trial court must set forth the factual basis for the award either in a formal order, a minute order, or in the reporter's transcript of the hearing on the motion."].)
Plaintiff's cases do not compel a different conclusion. Both Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982 and Jansen Associates v. Codercard, Inc. (1990) 218 Cal.App.3d 166 reversed orders awarding sanctions because the written order lacked specificity. But these cases address sanctions under section 128.5. Subdivision (c) of that section requires that "[a]n order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order." There is no similar provision in section 1987.2. As MacAdam, supra, 49 Cal.App.4th at page 55 observed, "section 1987.2 does not contain the same language of section 128.5, that a written order be issued setting forth the specific conduct or circumstances justifying the sanctions." In re Marriage of Flaherty (1982) 31 Cal.3d 637 is also inapposite. That case held the court of appeal could not, sua sponte, sanction an attorney for prosecuting a frivolous appeal without giving notice of its intention to do so and affording the attorney a hearing before imposing sanctions, as well as a "written statement of the reasons for the penalty." (Id. at p. 654.) By contrast, due process was satisfied here, where plaintiff had notice of the request for sanctions, an opportunity to be heard, and the court's reasons for awarding sanctions are set forth in the reporter's transcript.
Further, to the extent plaintiff relies on California Rules of Court, rule 2.30 as imposing a written order requirement, that rule applies only to sanctions imposed for violations of the Rules of Court. (See rule 2.30(a) ["This sanctions rule applies to the rules in the California Rules of Court relating to general civil cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate division of the superior court, and small claims cases."].)
In sum, there was no abuse of discretion. As plaintiff candidly acknowledges, he could have asked the trial court to reopen discovery for the limited purpose of serving a subpoena on Insight's custodian of records in New York. Instead, plaintiff and his counsel chose to proceed as detailed above and were sanctioned.
D. Respondents Are Entitled to Attorney Fees on Appeal
Respondents argue they are entitled to recover attorney fees incurred in this appeal, relying on section 1987.2. "'[A] statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.'" (Roe v. Halbig (2018) 29 Cal.App.5th 286, 313 [awarding appellate attorney fees to nonparty who filed motion to quash subpoena, obtained sanctions under § 1987.2, subdivision (c), in the trial court, and prevailed on appeal].) Section 1987.2, subdivision (a), which authorizes awards of "reasonable expenses . . ., including reasonable attorney's fees" in the trial court, does not preclude an award of fees on appeal. As plaintiff concedes, "the prevailing party in this appeal should be entitled to recover" "appellate attorney fees." Accordingly, respondents are entitled to recover such fees. The trial court shall determine the appellate fees and costs to which respondents are entitled in the first instance.
DISPOSITION
The trial court's order awarding sanctions to the respondents is affirmed. Respondents are awarded their costs, including reasonable attorney fees. Pursuant to California Rules of Court, rule 10.609, the trial court shall give notice to the State Bar of its sanctions order, to the extent it has not done so already.
We concur: PERLUSS, P. J. FEUER, J.