Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2009-00323349, B. Tam Nomoto Schumann, Judge.
Bitthal D. Maheshwari, M.D., in pro. per., for Objector and Appellant.
Law Office of Tioni A. Phan and Grace Ogburn for Defendants and Respondents.
OPINION
ARONSON, J.
Objector Bitthal D. Maheshwari, M.D., (Maheshwari) appeals from a trial court order compelling the Maheshwari Medical Practice (the Practice) to (1) comply with a business records subpoena defendants Adam James Rowley and Randall Rowley (collectively, the Rowleys) served to obtain plaintiff Valerie Cevallos’s employment records, and (2) pay monetary sanctions for failing to comply with the subpoena. Maheshwari authorized the Practice to comply with the court’s order by (1) arranging for Cevallos’s employer to produce the requested documents and (2) paying the monetary sanctions on the Practice’s behalf. Maheshwari, however, now asks us to reverse the portion of the order imposing monetary sanctions against the Practice and direct the Rowleys to return the sanctions Maheshwari paid, with interest.
This court previously denied the Rowleys’ motion to dismiss the appeal, which argued Maheshwari rendered the appeal moot by producing the documents and paying the monetary sanctions. Because we affirm the trial court’s order on the grounds discussed below, we need not revisit the mootness issue.
Maheshwari contends the subpoena was facially defective and unenforceable, and therefore the Practice’s failure to comply with the subpoena provided no basis for the sanctions award. Specifically, Maheshwari argues the Rowleys’ counsel failed to personally sign and issue the subpoena as required by Code of Civil Procedure section 2020.210. Maheshwari further contends the subpoena was unenforceable because there is no legal entity known as the Practice and therefore the Practice does not exist. Finally, assuming the Rowleys meant to direct the subpoena to Maheshwari or the Maheshwari Medical Center (the Center), the medical office building where Maheshwari operates his medical and legal practices, Maheshwari contends neither he nor the Center could comply with the subpoena because they did not employ Cevallos or have custody or control over her employment records.
As explained below, we reject the Rowleys’ contention that we must dismiss Maheshwari’s appeal because the trial court’s order was a nonappealable discovery order, but we agree with the Rowleys’ contention that Maheshwari’s challenges to the trial court’s order lack merit. Specifically, we affirm the trial court’s order because (1) Maheshwari waived objections to the subpoena’s form by failing to assert the objections in the trial court; (2) substantial evidence supports the trial court’s implied finding that the Practice exists; and (3) the trial court did not abuse its discretion in rejecting Maheshwari’s contention that the Center’s and Maheshwari’s inability to produce the requested records required the court to deny the motion to compel.
I
Facts and Procedural History
Cevallos sued the Rowleys to recover for injuries she suffered in an automobile accident. In discovery responses, Cevallos stated her damages included lost earnings and she identified the Practice as her employer. Cevallos also produced a document entitled “Wage and Salary Verification” that her employer’s office manager signed identifying the Practice as Cevallos’s employer.
Based on this information, the Rowleys served a business records subpoena on the Practice’s custodian of records to obtain Cevallos’s employment records. The Practice, however, did not respond to the subpoena within the time designated for production of the documents. The Rowleys therefore sent a letter to the Practice warning that it must comply with the subpoena or the Rowleys would file a motion to compel.
Maheshwari, a practicing cardiologist and attorney, sent a letter in response, claiming the “[s]ubpoena [was] legally defective and [could] not be honored.” The letter did not identify any defect with the subpoena, but merely stated, “There is [a] privacy issue [o]f the consumer, which has not been addressed appropriately[.]”
The Rowleys thereafter filed a motion seeking to (1) compel the Practice to comply with the subpoena and (2) monetary sanctions against both the Practice and Maheshwari, as the Practice’s attorney. The Center and Maheshwari opposed the motion and requested monetary sanctions against the Rowleys and their counsel. The Practice did not oppose the Rowleys’ motion and made no appearance in the trial court.
Maheshwari and the Center argued the subpoena was unenforceable because the Rowleys addressed it to the Practice, an entity that did not exist. Assuming the Rowleys meant to direct the subpoena to the Center rather than the Practice, the opposition explained the Center was a medical office building in which five or six independent physicians rented office space and operated their separate medical practices with their own employees, but the Center had no employees of its own. The opposition also explained Maheshwari operated both his medical and legal practices from the Center, but did not employ Cevallos in either practice. Because neither the Center nor Maheshwari employed Cevallos or had custody or control over her employment records, the opposition argued neither could produce any documents in response to the subpoena.
The opposition also argued the motion to compel should be denied because the Rowleys failed to serve an affidavit to support the issuance of the subpoena and also failed to adequately meet and confer before bringing the motion to compel. Maheshwari abandons these arguments on appeal and therefore we do not address them.
The trial court granted the Rowleys’ motion, ordering the Practice to comply with the subpoena and pay $1,040 in monetary sanctions within two weeks. Within that time period, (1) Anoop Maheshwari, M.D., wrote to the Rowleys’ counsel, explaining his professional corporation employed Cevallos and would make the documents the subpoena sought available for copying, and (2) Maheshwari paid the monetary sanctions imposed against the Practice.
Although complying with the trial court’s order, Maheshwari and the Center filed a motion for reconsideration, asserting many of the same arguments raised in opposition to the Rowleys’ motion to compel, but providing new evidence to support those arguments. The trial court denied the motion for reconsideration and ordered Maheshwari and the Center to pay $500 in monetary sanctions. Maheshwari timely filed a notice of appeal.
Although Maheshwari identifies the trial court’s ruling on the reconsideration motion as one of the orders from which he appealed, Maheshwari does not raise any specific issue contesting that ruling and thereby forfeited any challenge to the trial court’s ruling. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 538.) Moreover, although Maheshwari presented new evidence to support the reconsideration motion, he did not explain why he failed to present that evidence in opposition to the Rowleys’ motion to compel. “It has long been the view that a party seeking reconsideration of a prior order based on ‘new or different facts’ must provide a satisfactory explanation for failing to present the evidence sooner.” (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 46, fn. 15.)
II
Discussion
A. Maheshwari May Appeal the Trial Court’s Order
Before addressing Maheshwari’s challenges to the subpoena, we first consider whether the trial court’s order compelling the Practice to comply with the subpoena and pay monetary sanctions is an appealable order. The Rowleys contend we must dismiss the appeal based on the general rule that discovery orders constitute interim orders from which no immediate appeal may be taken. (See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 885-886.) According to the Rowleys, the one final judgment rule requires Maheshwari to wait until the trial court enters a judgment on Cevallos’s claims against the Rowleys before Maheshwari may appeal the trial court’s order regarding the subpoena. (See, e.g., Barton v. Ahmanson Developments, Inc. (1993) 17 Cal.App.4th 1358, 1360 (Barton) [“‘Generally speaking, under the one final judgment rule, interlocutory or interim orders are not appealable, but are only “reviewable on appeal” from the final judgment’”].)
Under the collateral order exception, however, an interim order is appealable if “1. The order is collateral to the subject matter of the litigation, [¶] 2. The order is final as to the collateral matter, and [¶] 3. The order directs the payment of money by the appellant or the performance of an act by or against appellant.” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-298 (Marsh).) Here, the exception applies to allow Maheshwari’s appeal.
True, the collateral order exception usually does not apply to discovery orders because “a discovery order ‘... is in the nature of a procedure for the compelling of evidence to prove or disprove the truth of the issues directly involved in the action and an order made relating thereto cannot be properly classified as a final determination of a collateral matter.’ [Citation.] ‘The rationale for this rule is that in the great majority of cases the delay due to interim review is likely to result in harm to the judicial process by reason of protracted delay [citation] and discovery orders may be reviewed on appeal from a final judgment on the merits. [Citations.]’ [Citation.]” (Brun v. Bailey (1994) 27 Cal.App.4th 641, 650 (Brun), superseded by statute as stated in Consumer Cause, Inc. v. Mrs. Gooch’s Natural Food Markets, Inc. (2005) 127 Cal.App.4th 387, 396, fn. 7.)
The rationale for prohibiting appeals from discovery orders, however, does not apply to a nonparty receiving fees or paying sanctions. (See, e.g., Marsh, supra, 43 Cal.App.4th at pp. 298-299; Brun, supra, 27 Cal.App.4th at p. 651; Barton, supra, 17 Cal.App.4th at p. 1361.) For example, in Brun, a treating physician sought a protective order requiring the party deposing him to pay the physician as an expert witness. The trial court denied the motion and the court of appeal allowed the physician to immediately appeal that ruling: “Although, technically, an order denying a motion for a protective order compelling the payment of an expert witness fee is an order arising during discovery, the rationale for making discovery orders nonappealable does not apply to such an order, which is more accurately characterized as a collateral order akin to a final judgment.” (Brun, at p. 648.) The Brun court explained, “The rationale of the rule applies to preclude the appeal of orders enforcing discovery or the production of evidence. [Citation.] But the rationale does not apply in this case.... The motion for a protective order was not designed to compel evidence or to prove or disprove the issues in the underlying action. Unlike discovery orders relating to evidence, review of the instant order will result in no delay to the underlying action whatsoever....” (Id. at p. 651; see also Marsh, at pp. 298-299 [allowing an expert witness to immediately appeal a trial court order setting the expert’s reasonable rate for deposition].)
Similarly, in Barton, the Court of Appeal allowed an attorney who formerly represented a party in the underlying litigation to appeal an order imposing monetary sanctions against the attorney because the rationale for prohibiting immediate appeals regarding discovery orders did not apply: “The policy concerns about further discovery proceedings or multiple interim appeals are not applicable to [the attorney], because he is no longer involved in the case. The policy of the one final judgment rule requiring a party to withhold appeal until final judgment is not applicable to him, because he is no longer a party or the attorney for a party. This case involves a countervailing policy: ‘that it better serves the interests of justice to afford prompt appellate review to a party whose rights or liabilities have been definitively adjudicated than to require him to await the final outcome of trial proceedings which are of no further concern to him.’ [Citation.] [The attorney] is liable for the sanction; respondent might seek to collect it from him or to enforce it. [Citations.] [The attorney] has an interest which is separate from his former client’s. [Citations.] It is hardly fair to hold appellant in some kind of judicial penalty box while the underlying case proceeds without him. [The attorney’s] particular problem is ripe for determination, and no purpose is served by delaying its resolution.” (Barton, supra, 17 Cal.App.4th at p. 1361.)
Here, Maheshwari appeals from an order compelling the Practice to comply with a business records subpoena and pay monetary sanctions for refusing to comply with the subpoena. Within a few days after the trial court’s order, Maheshwari arranged for Cevallos’s employer to produce the requested records and paid the sanctions on the Practice’s behalf. On this appeal, Maheshwari seeks only to overturn the portion of the order requiring the Practice to pay monetary sanctions and to compel the Rowleys to return the sanctions Maheshwari paid. Maheshwari does not challenge the trial court’s order compelling the Practice to produce the documents and does not seek to compel the Rowleys to return the documents. Maheshwari challenges the subpoena’s validity only to the extent the subpoena serves as the foundation for the sanctions award.
Cevallos did not challenge the subpoena or oppose the motion to compel Maheshwari’s compliance with the subpoena in the trial court. Cevallos also made no appearance in this appeal.
In effect, Maheshwari appeals only the sanctions award in the same way the attorney in Barton appealed the sanctions awarded against him. This appeal will have no impact on the production of evidence in the litigation between Cevallos and the Rowleys, nor will it delay that litigation in any way. Maheshwari is not a party to the litigation and will have no further involvement in it. Applying the prohibition against immediate appeals from discovery orders would only delay resolution of an issue that is ripe for determination without serving any of the policies underlying the prohibition. Moreover, requiring Maheshwari to wait for a final judgment in the underlying action would not only needlessly delay his right to appeal, but also potentially defeat that right if Cevallos and the Rowleys settle their dispute and dismiss the action without a final judgment. Accordingly, on the facts on this case we conclude Maheshwari may appeal from the trial court’s order.
B. Maheshwari Waived His Challenges Regarding Procedural Defects in the Subpoena
Maheshwari contends the subpoena was facially defective and unenforceable because the Rowleys’ attorney did not personally sign or issue the subpoena as Code of Civil Procedure section 2020.210 requires. Maheshwari, however, waived the issue because he failed to object on these grounds in the trial court.
Code of Civil Procedure section 2020.210 provides as follows: “(a) The clerk of the court in which the action is pending shall issue a deposition subpoena signed and sealed, but otherwise in blank, to a party requesting it, who shall fill it in before service. [¶] (b) Instead of a court-issued deposition subpoena, an attorney of record for any party may sign and issue a deposition subpoena. A deposition subpoena issued under this subdivision need not be sealed. A copy may be served on the non party, and the attorney may retain the original.”
“‘“‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’” [Citation.] “‘The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had....’” [Citation.] “‘No procedural principle is more familiar to this Court than that a constitutional right, ’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ [Citation.]” [Citation.]’ [Citation.]” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1558; see also In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826 [“‘Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider’”]; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [“Failure to object to the ruling or proceeding is the most obvious type of implied waiver”].)
Maheshwari contends he preserved these challenges by raising them in both his opposition to the motion to compel and a letter he sent to the Rowleys’ counsel. Maheshwari is mistaken. His trial court opposition twice mentioned that the Rowleys’ attorney did not sign the subpoena, but Maheshwari failed to oppose the motion on that ground. Maheshwari and the Practice also failed to argue the subpoena was invalid because the Rowleys’ counsel did not issue the subpoena. Similarly, Maheshwari’s letter to the Rowleys’ counsel merely asserted the subpoena was “legally defective and can not be honored.” The letter did not identify any specific defect other than to state, “There is [a] privacy issue... which has not been addressed appropriately[.]” Maheshwari’s later motion for reconsideration conceded he did not oppose to motion to enforce the subpoena on either of these grounds.
The declaration Maheshwari filed to support the motion for reconsideration stated, “I requested the motion to compel... be denied based on the grounds: (1) Maheshwari Medical Practice (“MMP”), as named in the subpoena duce [sic] tecum, does not exist; (2) the entity MMP never employed Plaintiff; (3) I, Bitthal D. Maheshwari, M.D., as an individual, my corporation Bitthal D. Maheshwari, M.D., Professional Corporation (“BDMPC”), or M[aheshwari] M[edical] C[enter] ever [sic] employed Plaintiff; and (4) none of the above mentioned entities ever had access, control, or custodianship of Plaintiff’s records.” The declaration did not identify the failure of the Rowleys’ counsel to sign or issue the subpoena as a ground for Maheshwari’s opposition to the motion to compel.
Finally, Maheshwari contends we should consider his objections regarding the subpoena’s form despite his failure to assert them in the trial court because the objections raise issues of public interest and involve pure questions of law on undisputed facts. Whether to consider new issues raised for the first time on appeal is vested in our discretion; we are not required to do so. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.) We decline Maheshwari’s invitation to consider these objections, which do not raise issues of public interest or the due administration of justice. Rather, the objections raise simple procedural matters the Rowleys quickly and easily could have addressed had Maheshwari raised the objections in the trial court. “It is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial.” (Children’s Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 776.)
C. The Trial Court Did Not Err in Enforcing the Subpoena and Imposing Monetary Sanctions
Regardless of any defects in the subpoena’s form, Maheshwari contends the trial court could not enforce the subpoena because it was served on the Practice, an entity he claims did not exist. Moreover, assuming the Rowleys meant to direct the subpoena to the Center or Maheshwari, he contends neither he nor the Center could produce the requested documents because they did not employ Cevallos or have custody or control over her employment records. We do not find these contentions persuasive.
We review a trial court’s decision on a motion to compel discovery for abuse of discretion. (Costco Wholesale Corp. v Superior Court (2009) 47 Cal.4th 725, 733 (Costco).) “An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) But, “when the facts asserted in support of and in opposition to the motion are in conflict, the trial court’s factual findings will be upheld if they are supported by substantial evidence.” (Costco, at p. 733.) “A reviewing court must therefore first determine whether substantial evidence supports the factual basis on which the trial court acted, and then determine whether the orders made by the trial court were an abuse of discretion in light of those facts.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430.)
By enforcing the subpoena despite Maheshwari’s contention the Practice did not exist, the trial court made an implied finding that the Practice did exist and substantial evidence supports that factual finding. Specifically, the Rowleys submitted (1) a letter by Cevallos to her attorney identifying the Practice as her employer and (2) a form entitled “Wage and Salary Verification” signed by the office manager for Cevallos’s employer and identifying the Practice as the employer. It appears Cevallos’s counsel may have prepared this latter form, but Mary Toma signed the form as the Practice’s office manager without changing the name of Cevallos’s employer and Maheshwari does not dispute Toma’s authority to do so.
Although Maheshwari’s trial court opposition argued the Practice did not exist, the opposition failed to present any evidence to support that argument. Moreover, assuming Maheshwari presented evidence showing the Practice did not exist, we must defer to the trial court’s resolution of any conflict in the evidence when, as here, substantial evidence supports the trial court’s factual findings. (See Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188 [Under the substantial evidence standard, “‘“[T]he power of [the] appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the [trial court’s finding].” [Citations.]’ [Citation.] We must ‘view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor’” (original italics)].) Accordingly, we conclude the trial court did not err in impliedly finding the Practice existed.
We also conclude the trial court did not abuse its discretion in rejecting Maheshwari’s contention that neither he nor the Center could comply with the subpoena because they did not employ Cevallos or have custody or control over her employment records. Assuming the Rowleys meant to direct the subpoena to Maheshwari or the Center, the contention they had no documents responsive to the subpoena did not entitle them to ignore the subpoena. As the trial court explained during the hearing on the Rowleys’ motion, if an entity served with a business records subpoena does not have any of the requested records, that entity must provide an affidavit stating that fact. (Evid. Code, § 1561, subd. (b); Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131.) Here, the Practice, the Center, and Maheshwari ignored the subpoena rather than provide the required declaration. Accordingly, the trial court properly granted the motion.
Moreover, after the court granted the motion to compel, neither the Practice, the Center, nor Maheshwari delivered an affidavit stating they had none of the records sought by the subpoena. Instead, they arranged for Anoop Maheshwari, M.D., a Professional Corporation, to produce the documents, suggesting they had at least some level of control over the documents.
Because we affirm the trial court’s order enforcing the subpoena and imposing monetary sanctions against the Practice, we reject Maheshwari’s contention that the trial court should have sanctioned the Rowleys and their counsel for bringing the motion to compel.
III
Disposition
The order enforcing the subpoena and imposing monetary sanctions is affirmed. The Rowleys shall recover their costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J.IKOLA, J.