Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC365195, William Highberger, Judge. Reversed.
Skousen Law, Robert James Skousen and Cindy Tran for Plaintiff, Objector and Appellants.
No appearance for Defendants and Respondents.
KRIEGLER, J.
Appellants The Capital Gold Group, Inc. and its law firm Skousen Law appeal from an order awarding monetary sanctions against them for misuse of the discovery process. The sanctions were ordered to be paid to the attorneys of record for defendants Stephen T. Nortier, Michael Thomas Media Group, and Michael Thomas Promotions (collectively, MTM). Capital and Skousen Law raise various challenges to the sanctions order, including that sanctions were improperly granted because the notices of motions requesting sanctions failed to identify the persons against whom sanctions were sought. We agree with the contention that the notices were defective and reverse.
MTM has not filed a respondent’s brief on appeal.
FACTS AND PROCEDURAL BACKGROUND
On January 23, 2007, Capital filed a complaint against MTM for conversion, fraud, negligent misrepresentation, and declaratory relief concerning media advertisements that MTM had arranged for Capital. Capital was represented by Skousen Law, including Attorneys Robert Skousen and James Allen.
MTM was represented by the law firm Klinedinst PC, including Attorney Serena Spencer. On May 15, 2007, MTM filed a cross-complaint against Capital and its president Jonathan Rose for several causes of action, including breach of contract, accounting, and misrepresentation. On May 30, 2007, MTM served form and special interrogatories and a request for production of documents. Responses from Capital were due on July 5, 2007.
On June 22, 2007, Spencer gave an extension to July 19, 2007, for Capital’s interrogatory responses, but would not extend the deadline for documents. On June 25, 2007, Capital responded to the document production request with several objections, including that Capital could not produce documents referred to in interrogatory responses that had not yet been prepared. On July 19, 2007, Capital provided interrogatory responses that consisted mainly of objections.
On July 28, 2007, Spencer called Allen to ask whether he would meet and confer in good faith concerning Capital’s inadequate responses to form interrogatories and failure to respond to any of the contention discovery. Allen asked Spencer to provide citations to authority showing that further responses were required.
On August 3, 2007, MTM filed an ex parte motion to shorten time to hear motions to compel further responses to discovery, requests for production of documents, and a request for sanctions. At a hearing on August 3, 2007, the trial court found the parties needed to meet and confer further. The court continued the hearing and ordered the parties to meet and confer in the jury room for 30 minutes to attempt to resolve their issues.
On August 6, 2007, MTM served the following documents: deposition notices for Rose and Capital’s person most qualified; a notice of motion to compel Capital’s further responses to form interrogatories and request for monetary sanctions in the amount of $5,250; a notice of motion to compel Capital’s further responses to special interrogatories and request for monetary sanctions of $5,250; and a notice of motion to compel further responses to the request for production of documents and request for monetary sanctions of $5,250. None of the notices of motions identified the person, party, or attorney against whom the monetary sanctions were being sought.
MTM filed a memorandum of points and authorities addressing the motions to compel further responses. MTM requested that the trial court order “Plaintiff and/or Plaintiff’s counsel of record, to pay $5,250 as reasonable attorney fees and costs incurred as a result of its misconduct . . . via cashier’s check made payable to ‘Klinedinst PC,’ attorneys’ of record for [MTM].”
On August 13, 2007, Capital served its objections to the deposition notices. Capital stated that none of the attorneys at Skousen Law could attend the depositions as scheduled, but MTM’s counsel was not willing to grant a reasonable continuance. On August 14, 2007, Capital opposed each of the motions to compel further responses on several grounds, including that the notices of motions failed to identify every person, party, or attorney against whom sanctions were being sought.
On August 17, 2007, MTM filed a notice of motion to compel the depositions of Capital’s person most qualified and Rose, and request for sanctions of $3,540. The accompanying memorandum of points and authorities stated in pertinent part: “Plaintiff should therefore be ordered to pay sanctions to MTM in the amount of $3,540.00.”
On the same day, MTM filed a notice of motion to compel discovery sanctions for Capital’s willful abuse of the discovery process. The notice of motion specifically requested “[t]hat monetary sanctions of $10,020.00 be awarded against [Capital], [A]ttorney James Allen, suspended [A]ttorney Robert J. Skousen, and Skousen Law” for repeated abuses of MTM’s right to obtain discovery, as well as issue, evidence, or terminating sanctions, and an order of contempt against Allen and Skousen for the failure of the noticed depositions to go forward.
On August 24, 2007, Capital opposed the motion to compel the depositions on the grounds that it failed to identify every person against whom the sanctions were sought and failed to fulfill the meet and confer requirements. Capital opposed the motion to compel discovery sanctions for willful abuse of the discovery process on the ground that no discovery order had been issued against Capital or its counsel and Capital had not violated any court order; there had been no meet and confer process; and the motion sought costs that appeared to duplicate the costs sought in other motions.
On September 5, 2007, the trial court heard the pending discovery motions. As to the motions to compel further responses, the court found that the efforts to meet and confer were sufficient and Capital’s responses were not sufficient. Although the caption on the motion referred to sanctions in general terms, the court found the statement in the points and authorities was adequate notice to satisfy due process. The court granted the motions and awarded sanctions of $5,250 payable jointly by Capital and Skousen Law to MTM’s counsel.
As to the motion to compel depositions, the trial court found the meet and confer was adequate, the unavailability of attorney Skousen was not good cause to delay the depositions, and the pressures on the law practice resulting from Skousen’s unavailability were not matters worthy of sympathy. The court granted the motion and ordered the depositions to commence on September 12, 2007. The court awarded sanctions in the amount of $3,540 against Capital.
The trial court denied MTM’s motion for sanctions based on Capital’s discovery conduct on the ground that it was cumulative of the sanctions awarded in connection with the other motions. The court directed Capital to provide discovery rather than objections. The court found Capital had not made a good faith effort to comply with realistic discovery obligations. The Capital Gold Group, Inc. and Skousen Law filed a timely notice of appeal of the September 5, 2007 order awarding sanctions.
DISCUSSION
Standard of Review
“[W]hile the trial court has wide discretion in managing discovery issues, ‘there can be no room for the exercise of such discretion if no ground exists upon which it might operate.’ [Citation.] Where, as here, the relevant facts are undisputed, we review a trial court’s exercise of discretion as a question of law. [Citation.] An appellate court may reverse a trial court decision for abuse of discretion where the exercise of that discretion is not based upon the applicable law. ‘Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion.’ [Citation.]” (Toshiba America Electronic Components, Inc. v. Superior Court (2004) 124 Cal.App.4th 762, 768.)
Sufficiency of Notice
Capital and Skousen Law contend the notices of motions requesting sanctions failed to meet the requirements of Code of Civil Procedure section 2023.040. We agree.
Code of Civil Procedure section 2023.040 provides: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”
The individual or party against whom the sanctions are sought must be identified in the notice of motion. (Corralejo v. Quiroga (1984) 152 Cal.App.3d 871, 874 [order imposing sanctions on attorney reversed where notice of motion did not clearly provide that sanctions were being sought against attorney]; cf. Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207-210 [default judgment reversed because moving party failed to specify in notice of motion that it sought terminating sanction, although notice of motion sought monetary sanctions and memorandum of points and authorities advised court it could consider terminating sanction].)
The order awarding sanctions in this case did not comply with due process and the express notice requirements of Code of Civil Procedure section 2023.040. The orders imposing sanctions therefore were unauthorized and must be reversed. (Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th at pp. 209-210.)
DISPOSITION
The portion of the order awarding sanctions is reversed. Appellants The Capital Gold Group, Inc. and Skousen Law are awarded their costs on appeal.
We concur: TURNER, P. J., ARMSTRONG, J.