Opinion
D074978
06-17-2020
GEORGE SANCHEZ, Plaintiff and Respondent, v. HOYT E. HART II, Defendant and Appellant.
Don Phan-Huy; and David C. Carr for Defendant and Appellant. Law Offices of Daniel J. Williams and Daniel J. Williams for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00034871-CU-PN-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Reversed with directions. Don Phan-Huy; and David C. Carr for Defendant and Appellant. Law Offices of Daniel J. Williams and Daniel J. Williams for Plaintiff and Respondent.
George Sanchez, individually and as the successor-in-interest to his deceased wife Janis, sued their former attorney Hoyt E. Hart II for professional negligence, breach of fiduciary duty, conversion, and financial elder abuse. Sanchez alleged, among other things, that Hart charged excessive fees and misappropriated settlement funds held in trust.
In pretrial proceedings, the parties engaged in several disputes regarding the discoverability of bank records for Hart's client trust account and general business account. Sanchez filed a motion for issue, evidentiary, and terminating sanctions based on Hart's alleged noncompliance with a discovery order regarding the documents. The court denied the motion.
At trial, before a different judge, Sanchez maintained that Hart still had not complied with the discovery order. The trial court agreed and ordered Hart to produce the documents by the next day. When the court found Hart's subsequent production unsatisfactory, it granted Sanchez's oral motion for terminating sanctions, struck Hart's answer, and entered his default. At a subsequent hearing, the court awarded Sanchez over $18 million in compensatory damages, punitive damages, disgorgement, and attorney fees.
Hart appeals. He contends the court erred by (1) imposing terminating sanctions and (2) awarding default damages without sufficient notice. We conclude the court erred by imposing terminating sanctions and reverse the judgment. We therefore need not consider whether the court erred in making its damages award.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the facts in the light most favorable to the judgment. (See Lopez v. Watchtower Bible & Tract Society of N.Y., Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez); see also Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 532, fn. 1.)
In his complaint, Sanchez alleged the following facts: Hart represented Sanchez and his wife in medical malpractice litigation against several physicians and a hospital. Two physicians settled the claims against them. Several other defendants were voluntarily dismissed or dismissed by the trial court because the claims against them were barred by the statute of limitations. The hospital made two reasonable settlement offers, which Hart rejected. The hospital ultimately prevailed at trial, obtained a judgment for costs, and imposed a judgment lien on the Sanchez family home. In the course of the litigation, Hart did not keep his clients informed of settlements and settlement offers, charged excessive fees, improperly obtained a personal loan from his clients, and misappropriated settlement funds, among other things.
Sanchez alleged causes of action for professional negligence, breach of fiduciary duty, conversion, and financial elder abuse. He prayed for relief in the form of general and special damages, double and treble damages, disgorgement, punitive damages, and litigation costs. Hart filed a general denial and a cross-complaint for $80,000 in allegedly unreimbursed costs.
In pretrial proceedings, the trial court granted Hart's motion for summary adjudication of Sanchez's conversion cause of action. Sanchez filed a first amended complaint, which realleged the conversion claim. Hart did not answer the first amended complaint, but this fact does not appear to have played any part in the trial court proceedings. In order to explain his failure to answer, Hart filed a motion to take evidence on appeal. (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(c).) We deny the motion because the evidence is irrelevant to the disputed issues in this appeal. (See Jordan v. Dept. of Motor Vehicles (1999) 75 Cal.App.4th 449, 468.) Further statutory references are to the Code of Civil Procedure.
After unsuccessfully pursuing the production of similar documents from Hart, Sanchez served two subpoenas on Bank of America seeking production of all account statements and cancelled checks for Hart's general business and client trust accounts from May 2012 through December 2016. Hart engaged in a meet-and-confer process with Sanchez to narrow the scope of the subpoenas, and he objected to production based on the privacy rights of his nonparty clients. The parties could not reach an agreement.
Prior to the scheduled date of production, Hart gave notice to Sanchez that he would seek an ex parte order from the court staying Bank of America's production. Nonetheless, Bank of America made the production as scheduled. Sanchez's counsel received the documents and examined them. At the subsequent ex parte hearing, the court directed the parties to confer regarding the disposition of the documents. They were again unable to reach agreement.
Hart filed a motion for a protective order requiring Sanchez's counsel to surrender the documents. He argued that the documents contained privileged and confidential information of Hart's nonparty clients and were largely irrelevant. Hart also requested disqualification of Sanchez's counsel based on his review of inadvertently-produced privileged documents under State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 657 (State Fund).
In opposition, Sanchez argued that the production was not inadvertent because the subpoenas were validly served on Bank of America and Hart did not properly object or move to quash. Sanchez's counsel stated in a declaration that his examination of the bank records showed Hart had diverted Sanchez's settlement funds to Hart's other clients and to his own attorney.
The trial court (Judge Katherine Bacal) granted Hart's motion for a protective order and disqualified Sanchez's counsel. The court found, "It is obviously apparent that the bank records contain privileged information, as the client trust account records implicate the privacy interests of Hart's non-party clients." Even though the subpoenas were lawfully served, the production was "inadvertent," within the meaning of State Fund, and Sanchez's counsel should not have reviewed the documents. The court directed Sanchez's counsel to surrender the documents to Hart.
As to disqualification, the court found, "[Sanchez's] counsel admitted that he has reviewed and categorized the documents. In fact, during oral argument [Sanchez's] counsel stated that he reviewed the bank records in detail and, from that review, he has determined that Hart stole 'thousands of dollars of plaintiffs' money.' Counsel made clear that he intends to use this information during Hart's deposition. Counsel further acknowledged that he subpoenaed the records because Hart refused to provide them pursuant to a request for production of documents. . . . There is no doubt that otherwise privileged documents will be used against [Hart]; [Sanchez's] counsel has said so. Merely returning the documents will not lessen the likelihood of future harm or 'the damage caused to the public's trust in the administration of justice and the integrity of the bar.' " The court therefore disqualified Sanchez's counsel from the litigation.
Sanchez challenged the court's order by petition for writ of mandate in this court. We summarily denied the petition. (Sanchez v. Superior Court (Aug. 10, 2017, D072542).)
Five months later, Sanchez served Hart with interrogatories and a second set of requests for production. Among other things, the requests for production sought all documents, from May 2012 to the present, relating to Hart's general business and client trust accounts. The requests asked Hart to "redact all client names other than Janis Sanchez and George Sanchez." Hart did not respond by the statutory deadline. Sanchez appeared ex parte to address the discovery. Hart promised to serve responses by the following Tuesday, and the court continued the ex parte. Hart served responses on Wednesday, but Sanchez believed they were incomplete. At the continued ex parte hearing, the court (Judge Bacal) issued an order shortening time to hear a motion to compel.
In the motion to compel, Sanchez requested an order directing Hart to serve initial responses to the requests for production (and interrogatories) and to produce all responsive documents. Sanchez also sought monetary sanctions. Believing the motion to be unopposed, the court (Judge Bacal) granted the motion and imposed monetary sanctions on Hart.
Hart moved for reconsideration on the ground that he had in fact filed an opposition. Although the court noted "numerous discrepancies" in the documents Hart submitted, it granted reconsideration and set aside its prior order. On reconsideration, the court again granted the motion to compel. It noted that Hart had served responses, but the responses contained objections. It found that Hart waived any objections by failing to serve timely responses, and he had not moved for relief from that waiver. The court ordered Hart, "to the extent he has not already done so," to serve full and complete responses to the interrogatories and requests for production "without objections." The court also ordered Hart to "produce all documents responsive to the request for production of documents" within 10 days. It imposed monetary sanctions in the amount of $2,800.
Hart served amended responses. Still unsatisfied, Sanchez moved for issue, evidence, and terminating sanctions based on misuse of the discovery process. Sanchez argued, among other things, that Hart had refused to identify and produce all bank statements and cancelled checks for his client trust account and general business account. Sanchez also argued that Hart's amended responses were improper because they continued to assert general objections based on privilege, in violation of the court's order.
In opposition, Hart denied any misuse of the discovery process or history of discovery violations. He argued that the court's prior order was an order compelling initial responses after Hart failed to serve timely responses. Hart contended that Sanchez was required to obtain an order compelling further responses before nonmonetary sanctions could be imposed for disobedience. Hart maintained that he had not withheld any documents from production, since the court's prior protective order still applied to the bank records at issue. And, in any event, Hart argued that the attorney-client privilege and privacy rights held by his nonparty clients could not be waived by Hart's failure to serve a timely response to the requests for production.
The court (Judge Bacal) denied Sanchez's motion for sanctions. It wrote, "Where, as here, a party is unsatisfied with responses to interrogatories or document requests, the appropriate remedy is to bring a motion to compel a further response. [Citations.] Moreover, the discovery statutes 'evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.' [Citation.] [¶] With an 'incremental approach' in mind, it would be an abuse of discretion to impose sanctions for violating an order to provide initial responses when the responding party has in fact provided responses."
In advance of trial, Sanchez served Hart with a notice to appear and bring documents. As relevant here, the notice included requests to bring to trial the same category of documents at issue in previous disputes, i.e., all documents, from May 2012 to the present, relating to Hart's general business and client trust accounts. Hart objected to the requests.
The case was assigned to Judge Frederic Link for a bench trial. On the first day of trial, Sanchez filed a motion to "compel production of documents at trial," as well as a renewed motion for issue, evidence, and terminating sanctions. Sanchez again contended Hart was in violation of the court's prior discovery order. Sanchez sought an order compelling the production of redacted bank records and sanctions if Hart refused to produce the requested documents.
Prior to opening statements, the court (Judge Link) heard argument regarding the bank records. The court found there had been an order to produce, and Hart had not complied. It ordered Hart to produce the redacted bank records by the next morning.
Later the same day, after hearing testimony from several witnesses, the court reiterated its order. It believed Hart had the records from Bank of America readily available because they had been surrendered to him by Sanchez's prior counsel. Hart raised the issue of the protective order, but the court stated that Judge Bacal had ordered Hart to turn over documents notwithstanding the prior protective order. The court said, "You're going to bring in exactly what Judge Bacal told you to bring in, period." During the ensuing discussion, the court emphasized that the documents should be produced without redactions. It acknowledged that the original requests had mentioned redactions, but it believed Judge Bacal had subsequently disallowed them. The court stated that the documents would not be understandable with names redacted. Sanchez agreed the unredacted documents were "critical" to understanding how Hart was spending money.
The next day, Hart produced documents, but Sanchez contended they did not cover the entire time period and remained at least partially redacted. During a recess, Hart obtained additional records. Hart's counsel represented that the new documents consisted of 22 months of statements, including what he contended was the relevant time period. He said Hart had obtained the documents from a local Bank of America branch, and they represented the maximum number of statements that Hart could obtain as a walk-in customer. Sanchez responded that Hart still had not produced all of the documents responsive to his requests, as ordered by Judge Bacal.
During the hearing, the court asked why Sanchez had not raised Hart's noncompliance with Judge Bacal before trial. Sanchez's counsel responded that he had, but Judge Bacal told him he should have filed a motion to compel further responses and further production. Sanchez's counsel remarked, "But, of course, that was right before the discovery cutoff. And Judge Bacal said, 'And your discovery cutoff is too soon for me to put you in for a motion, so I'm sorry.' " The court (Judge Link) responded, "Well, look, Mr. Hart is in flagrant violation of the [c]ourt's order," and went on with the hearing.
The court found that Hart had not produced all responsive documents and was "in flagrant disregard to Judge Bacal's order." It remarked, "we are now here at trial, and any complaints [Hart] may have fall on deaf ears." The court asked Sanchez, "Do you have any motions?" Sanchez's counsel responded, "Yes, Your Honor. I have a motion for terminating sanctions, to strike Mr. Hart's answer to the first amended complaint, and also to strike Mr. Hart's cross-complaint[.]"
The court ordered terminating sanctions against Hart: "Let the record reflect that, number one, this information wasn't provided until this morning. And number two, the information in these binders contains redactions. All of this is in violation of the order to produce. And not only is it not timely, but also it has information in there that should not have been redacted. [¶] So the information that's provided is totally inadequate, and I find that Mr. Hart has flagrantly refused to comply with the order of the [s]uperior [c]ourt. So therefore, the [c]ourt is ordering terminating sanctions in this case . . . ." The court struck Hart's answer and his cross-complaint, and it set a default prove-up hearing on damages for the next day.
At the next day's hearing, the court opened with additional comments on its terminating sanction: "It is important in considering terminating sanctions that you have to consider escalating sanctions. In other words, you can't just come out of the box with the worst—the most stringent. You have to look at it and you have to give the party a chance to comply. [¶] . . . [¶] In this case, this defendant was working up the ladder. There were at least two motions to compel which the defendant refused. One time he was given the opportunity to produce with redactions, privileges, et cetera. He refused. They went back. Then Judge Bacal then issued a second order to compel, this time lifting privileges, et cetera, just to turn it over with no redactions or whatever. And again, he refused. There were at least two monetary sanctions. [¶] . . . [¶] And then yesterday when he does comply, he doesn't do what he was ordered to do, twice by Judge Bacal and once by me. 'Produce what you're supposed to produce,' and he did not do it. He brought in some records. [¶] And it's interesting. He said he got those records within an hour at the Bank of America. I find it very hard to believe. I went over those again, and those are records that there's no way it would be produced within an hour, all right? He probably had those in the trunk of his car. So that's number one. [¶] So I looked at it and I find that escalating sanctions took place here. He . . . failed to comply with rules and orders of this [c]ourt. And it's my opinion that the authority of this [c]ourt cannot be vindicated through the imposition of a less severe alternative. He was given the opportunity of less severe alternatives, and he thumbed his nose at the [c]ourt. [¶] I find that the totality of the circumstances here show that his failure to comply was willful, and that's why I feel that the terminating sanctions were important."
The court excused Hart's counsel, at his request, and proceeded with a default hearing on damages. Sanchez's primary witness was his prior counsel, whom Judge Bacal had disqualified. The disqualified counsel testified regarding Hart's fees and his handling of client funds, based on the counsel's review of the subpoenaed Bank of America documents (described in earlier court documents) and the additional documents Hart had produced. He calculated Sanchez's damages in various categories, including excessive fees and funds misappropriated by Hart. Sanchez also testified. He described his interactions with Hart and the emotional distress he and his wife suffered as a result of Hart's actions.
The court awarded Sanchez, individually and as successor-in-interest to his wife, approximately $4.5 million in compensatory damages, $218,000 in disgorgement, $3.5 million in double or treble damages, $9.9 million in punitive damages, and $150,000 in attorney fees. It entered judgment against Hart for the total amount, approximately $18.3 million. Hart appeals.
DISCUSSION
Hart contends the court erred by granting Sanchez's motion for terminating sanctions on both procedural and substantive grounds. Procedurally, Hart argues that he did not have sufficient notice and opportunity to be heard before the court granted the motion. Substantively, he argues that the court abused its discretion by imposing terminating sanctions in the first instance under the circumstances here. We agree with both arguments.
The discovery statutes provide for sanctions against anyone, including parties and their attorneys, who engages in conduct that is a misuse of the discovery process. (§ 2023.030.) Misuse of the discovery process includes failing to respond or submit to an authorized method of discovery and disobeying a court order to provide discovery. (§ 2023.010, subds. (d), (g).) Authorized sanctions include monetary sanctions ordering a person to pay an opposing party's reasonable expenses, issue sanctions ordering that designated facts be taken as established, evidence sanctions prohibiting a person from introducing designated matters in evidence, and terminating sanctions ordering that a person's pleadings be stricken, his action stayed or dismissed, or his default taken. (§ 2023.030, subds. (a)-(d).)
A court may impose sanctions "after notice to any affected party, person, or attorney, and after opportunity for hearing . . . ." (§ 2023.030.) " 'Adequate notice prior to imposition of sanctions is mandated not only by statute, but also by the due process clauses of both the state and federal Constitutions.' " (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 208 (Sole Energy).) Generally, notice of a motion for sanctions must be provided at least 16 court days before the date of the hearing. (§ 1005, subd. (b).) Although that time may be shortened for good cause, discovery sanctions may not be imposed by ex parte application, and an order purporting to do so is void. (Sole Energy, at p. 208.) Sufficient notice of a motion for sanctions is not merely a formal requirement, it ensures that " 'the court will be fully apprised of the events occurring subsequent to the order compelling discovery.' " (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 6.) We review de novo whether the trial court proceeding complied with due process. (J.W. v. Watchtower Bible & Tract Society of N.Y., Inc. (2018) 29 Cal.App.5th 1142, 1166 (J.W.).)
The case of O'Brien v. Cseh (1983) 148 Cal.App.3d 957 is instructive. In that case, a plaintiff sought an ex parte order for $225 in monetary sanctions under section 128.5, an analogous statute requiring notice. (O'Brien, at p. 960.) The plaintiff gave one day's notice by telephone. (Ibid.) The defendant did not appear at the ex parte hearing, and the trial court imposed a $150 sanction. (Ibid.) The reviewing court reversed. It held that, because the statute required notice, the request for sanctions could not be made by ex parte application. (Id. at p. 961.) Moreover, the notice was required to be in writing. (Ibid., citing § 1010.) The reviewing court wrote, "Plaintiff's rush to compel sanctions against defendant on an ex parte basis was a flagrant violation of due process principles. The California Supreme Court has ruled that due process requires fair warning and an opportunity to respond before penalties can be imposed for prosecution of a frivolous appeal. [Citation.] 'Constitutional due process principles are offended by the summary imposition of sanctions by the appellate courts.' [Citation.] Ex parte imposition of sanctions by a superior court, as in the case at bench, is equally offensive." (O'Brien, at p. 962.)
Here, the notice for a much more severe penalty—terminating sanctions—was similarly insufficient. Sanchez made the motion orally, during trial, only moments after Hart had produced documents. Sanchez's oral motion did not cite any legal authority, and its factual basis was not clearly articulated. (Its substantive shortcomings will be discussed below.) Nonetheless, Hart was required to respond immediately. Such a summary procedure does not satisfy due process, especially where as here the ultimate sanction of termination is sought. Hart was entitled to fair notice of the nature and basis for imposition of sanctions against him, a reasonable opportunity to respond, and due consideration of the parties' respective arguments by the court. The record does not reflect that these requirements were observed. The judgment must therefore be reversed. (See Sole Energy, supra, 128 Cal.App.4th at p. 210 ["Because those initial orders were fatally flawed as a result of being entered without providing defendants notice and an opportunity to be heard, the default judgment is void and must be reversed."].)
In this appeal, Sanchez does not respond to Hart's argument regarding notice and opportunity to be heard. The trial court may have believed that Sanchez's written motion for sanctions, filed on the first day of trial, was sufficient notice. We disagree. The written motion was filed and served only one day before the court imposed terminating sanctions. Absent an order shortening time, the deadline for Hart's opposition had not yet passed. And, even if the motion were procedurally sufficient, its substance was overtaken by events at trial. The motion did not address the alleged deficiencies in Hart's subsequent document production. It could not provide sufficient notice of the grounds for Sanchez's request for terminating sanctions because the facts of Hart's compliance or noncompliance had materially changed by the time the trial court entered the order. More was required before the trial court could order terminating sanctions.
Substantively, "terminating sanctions are to be used sparingly because of the drastic effect of their application. [Citations.] Thus, under the statutory scheme, trial courts should select sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process. [Citation.] Therefore, sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. [Citation.] However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective." (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191-192 (Dept. of Forestry).)
"The trial court may order a terminating sanction for discovery abuse 'after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.' [Citation.] Generally, '[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.' [Citation.] Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders." (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (Los Defensores).)
"[T]he trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion." (Dept. of Forestry, supra, 18 Cal.App.5th at p. 191.) "When the trial court's exercise of its discretion relies on factual determinations, we examine the record for substantial evidence to support them." (Los Defensores, supra, 223 Cal.App.4th at p. 390.) "The appellant bears the burden on appeal of demonstrating that the trial court abused its discretion in imposing a discovery sanction." (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1191.)
The trial court described the basis for its sanctions order, in part, as follows: "There were at least two motions to compel which the defendant refused. One time he was given the opportunity to produce with redactions, privileges, et cetera. He refused. They went back. Then Judge Bacal then issued a second order to compel, this time lifting privileges, et cetera, just to turn it over with no redactions or whatever. And again, he refused." The record does not support these findings. Sanchez filed a single motion to compel. The court (Judge Bacal) granted the motion but set aside her order after Hart moved for reconsideration. On reconsideration, the court granted the motion again. These proceedings resulted in a single discovery order against Hart. Judge Bacal later interpreted her order as an order compelling initial responses to the requests for production. She did not make two escalating orders for production, as Judge Link later believed. Nor did Judge Bacal order production without redactions. Sanchez's own requests for production directed Hart to redact the names of his other clients.
The court believed that, prior to trial, there had been a series of escalating sanctions against Hart. This was incorrect. Sanchez was awarded monetary sanctions in connection with his motion to compel. But when Sanchez requested further issue, evidence, and terminating sanctions, the court (Judge Bacal) refused. She wrote, "Moreover, the discovery statutes 'evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.' [Citation.] [¶] With an 'incremental approach' in mind, it would be an abuse of discretion to impose sanctions for violating an order to provide initial responses when the responding party has in fact provided responses." Sanchez did not seek another discovery order prior to trial.
At trial, the court ordered Hart to produce documents. The exact parameters of the production were somewhat unclear, given the court's misapprehension of Judge Bacal's discovery order. But, although Hart was initially resistant, it is apparent he complied at least in part with the court's trial order. He produced 22 months of unredacted bank account statements and claimed he was prevented from producing additional statements only by his bank's walk-in policy. The court should have tested Hart's apparent willingness to comply rather than immediately moving to terminating sanctions. In light of the true history of the dispute, and Hart's additional production, it was not reasonable for the trial court to conclude that lesser sanctions would not produce compliance and terminating sanctions were the only option to vindicate its authority. The court therefore abused its discretion by ordering terminating sanctions.
As this court explained, in reversing an order imposing terminating sanctions, "The fundamental flaw with the court's approach is that there is no basis in the record showing the court could not have obtained [defendant's] compliance with lesser sanctions or that another sanction could not effectively remedy the discovery violation. To the contrary, the record supports that the court had numerous tools at its disposal to compel compliance before imposing the ultimate sanction." (Lopez, supra, 246 Cal.App.4th at p. 605.) The same holds true here.
Sanchez cites two cases discussing the trial court's inherent power to impose sanctions, separate and apart from the discovery statutes. (See Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758-759 [dismissal]; Peat v. Superior Court (1988) 200 Cal.App.3d 272, 286-287 [evidence sanctions].) He does not make any cogent argument that the terminating sanctions here should be affirmed on this basis, rather than as a discovery sanction. We therefore consider the point waived and need not consider it further. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; In re S.C. (2006) 138 Cal.App.4th 396, 408.) --------
Sanchez relies heavily on J.W., supra, 29 Cal.App.5th 1142, but that opinion is inapposite. The plaintiff in J.W. sued a religious organization for negligence and other torts arising out of her alleged sexual abuse by a church elder. (Id. at pp. 1148-1150.) In pretrial proceedings, the trial court granted a motion to compel production of documents. (Id. at p. 1152.) The church filed a motion to set aside the discovery order, which the court denied. (Id. at p. 1155.) The court reiterated its order to produce documents within 30 days. (Ibid.) The church filed a petition for writ of mandate in the Court of Appeal and a petition for review in the Supreme Court, but both were denied. (Ibid.) Several months later, after the church still had not produced the documents and refused to meet and confer, the plaintiff filed a motion for terminating sanctions. (Id. at p. 1156.) At the hearing, the trial court offered the church one last chance to comply before it imposed terminating sanctions, but the church refused. (Id. at pp. 1157-1158.) The court therefore granted plaintiff's motion for sanctions. In a written order, it stated that the church " 'does not deny that the documents at issue are responsive to the February 11, 2014 court order or that it has been ordered to produce these documents. Based on [the church's] refusal to produce these documents—despite looming terminating sanctions that would strike [the church's] Answer—the imposition of lesser sanctions (like monetary sanctions) is insufficient to obtain compliance.' " (Id. at p. 1159.)
The church appealed. It argued, among other things, that the trial court erred by finding that lesser sanctions would be ineffective. (J.W., supra, 29 Cal.App.5th at p. 1170.) The appellate court disagreed. It wrote, "This case does not present the situation that [the church] seems to describe in which a party does not comply and terminating sanctions are immediately ordered. The key here is the court's warning that terminating sanctions would likely be granted, and the multiday opportunity for [the church] to comply once notified of that possibility. The trial court gave [the church] notice that it would likely grant terminating sanctions after a four-day period if [the church] did not start producing the 1997 Documents, and [the church], despite that warning, did not comply with the court's nearly year-old discovery order. Thus, with that particular procedural history, it was reasonable to conclude that lesser sanctions would be ineffective in motivating [the church] to comply with the court's discovery order." (Id. at pp. 1170-1171.)
Here, unlike J.W., Hart's pretrial obligation to produce documents was significantly less clear. When Sanchez sought sanctions based on Hart's alleged failure to comply with the court's discovery order, Judge Bacal interpreted her order as an order compelling initial responses and denied the request for sanctions. At trial, once the court ordered production, Hart complied in part—even producing bank records without the redactions that Sanchez had expressly requested. Unlike the church in J.W., Hart did not categorically resist production. His argument by the second day of trial was primarily logistical. It was not reasonable for the trial court to impose terminating sanctions in the first instance under these circumstances.
Sanchez points out that Hart did not specifically request a lesser sanction in the trial court. Relying on J.W., supra, 29 Cal.App.5th at page 1170, Sanchez argues that Hart's failure to request a lesser sanction prevents him from challenging the terminating sanction on appeal. Sanchez misreads J.W. The church in J.W. argued, for the first time on appeal, that terminating sanctions were improper because the trial court should have imposed a specific issue sanction on the element of duty. (Id. at p. 1169.) J.W. held that the church's specific argument was forfeited by its failure to raise it in the trial court. (Id. at p. 1170 ["We cannot conclude the trial court abused its discretion by failing to enter an order that was never suggested."].) J.W. did not hold that the church was wholly precluded from challenging the terminating sanction on the ground that it did not suggest a lesser sanction. Indeed, J.W. went on to address the merits of the church's argument that the trial court erred by finding that lesser sanctions would be ineffective. (Id. at pp. 1170-1171.)
Finally, Sanchez argues that the trial court's order striking Hart's answer is "moot" because Hart did not file an answer to Sanchez's first amended complaint. (See fn. 1, ante.) It is unnecessary for us to consider the effect of the court's order in this appeal. The default here was based on the court's terminating sanctions, not Hart's failure to answer. We leave any further proceedings on that issue to the trial court on remand. (See Sole Energy, supra, 128 Cal.App.4th at p. 210.)
DISPOSITION
The judgment is reversed. The trial court is directed to (1) vacate its orders granting terminating sanctions, striking Hart's answer, striking Hart's cross-complaint, and entering his default; and (2) conduct further proceedings consistent with this opinion. Appellant is entitled to his costs on appeal.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.