Opinion
A167893
07-31-2024
BIJAN CHANSARI, Plaintiff and Respondent, v. HEATHER BYERS, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 21FAM00675)
BROWN, P. J.
Bijan Chansari (Chansari) filed this parentage action and sought joint custody of the parties' daughter. Heather Byers (Byers) appeals from an order granting Chansari $20,000 in sanctions. She contends that the trial court improperly awarded Chansari discovery sanctions and sanctions under Family Code section 271. We conclude that the trial court properly awarded discovery sanctions, and we affirm the court's order.
BACKGROUND
In April 2022, the trial court granted Byers permission to travel abroad with the parties' daughter from July 10, 2022, to August 10, 2022; the court also ordered that the child "may have daily FaceTime visits with the non custodial parent at 7pm for at least 5 min[utes]."
The court subsequently ordered make-up visitation for Chansari from July 4, 2022, to July 9, 2022, to account for the visitation he would miss while his daughter was abroad. Chansari had regularly scheduled weekend visitation from July 1, 2022, to July 3, 2022, and, with the make-up visitation, he was scheduled to have his daughter from July 1, 2022, through July 9, 2022. This visitation did not occur, however, and Byers testified at a visitation review hearing in August 2022 that the visitation was missed because she (Byers) came down with COVID. Chansari maintained that Byers additionally withheld FaceTime communications during this period.
On July 12, 2022, Chansari served Byers with special interrogatories and requests for production of documents. The requests for production sought, among other things, various financial documents, travel and passport documents relating to the parties' daughter, and her birth certificate. The special interrogatories asked for the location of the parties' daughter at 7:00 p.m. from July 1, 2022, through July 8, 2022.
On August 15, 2022, Byers served objections to the discovery. She objected to the special interrogatories on the grounds that they were served when Chansari knew she would be abroad, they stated an incorrect response deadline, and Chansari had unreasonably refused to give Byers an extension of time to respond. With respect to the requests for production, Byers objected on the grounds that they were served when Chansari knew she would be abroad; Byers was unavailable while abroad, and Chansari unreasonably refused an extension of time to respond; the discovery stated an incorrect response deadline; the timing of the discovery was calculated to harass Byers; and many of the document requests were overbroad, irrelevant, not calculated to lead to admissible evidence, and were propounded to harass Byers and invade Byers's privacy.
In late September 2022, Chansari filed requests for orders (the RFOs) seeking to compel Byers to provide further responses to the special interrogatories and the requests for production. For each RFO, Chansari sought estimated monetary discovery sanctions of $9,200 and $10,000 in sanctions under Family Code section 271. After the parties attended an unsuccessful informal discovery conference, Byers filed a response to the RFOs, and Chansari filed reply papers with a declaration from counsel stating that, as of the date of the reply, counsel had charged $10,800 in attorney fees for the RFO relating to the special interrogatories and $8,800 in attorney fees for the RFO relating to the requests for production. The trial court held a hearing on Chansari's RFOs on January 10, 2023 (the January 10 hearing).
At the January 10 hearing, the court asked Byers's counsel whether Byers had provided substantive responses to Chansari's discovery. Byers's counsel conceded that she had not. With respect to the requests for production seeking financial information, Byers's counsel took the position that the parties should exchange the information, but she argued that the court should consider the fact that Chansari had not produced the financial documents that Byers had requested through discovery, she had relied on his discovery responses stating that he would produce the information, and Byers's deadline to file a motion to compel had passed. With respect to the nonfinancial documents that Chansari requested (e.g., the child's birth certificate and passport documents), Byers's counsel argued that Chansari could get that information himself. For the special interrogatories, counsel claimed that Byers was justified in not responding because Byers's testimony from the August 2022 visitation review hearing allegedly provided the information requested.
The court deemed the matter submitted, found that Byers's responses to the special interrogatories did not comply with the Code of Civil Procedure, and determined the issue was not moot. The court ordered further responses and found that a discovery sanction of $10,000 was appropriate. The court also found that Byers failed to properly respond to the requests for production, and it ordered her to produce the requested documents. The court then said, "As far as discovery sanctions, you know, I will - I will say this: As far as the unclean hands argument, again as I indicated my hesitation with that, there's other recourses. I understand now [Byers's] argument that there was back-and-forth and there [were] informal agreements that you folks would exchange financial documents, but, unfortunately, you missed the deadline, and I'll take that into consideration somewhat. So for purposes of - of this motion to compel the RPDs, what I'm going to order for this is $10,000 as well. [¶] But I'm not going to order any 271 sanctions for either. They are going to be encompassed in the attorney's fees."
Byers's counsel inquired how the court was calculating the amount of sanctions, arguing that it was unreasonable for a discovery motion to cost $10,000. The court responded, "Well, I'll tell you why. I'll tell you why because of all the hours that it did take. First of all, [Chansari's counsel] had to file - to write it, file it, attend an [informal discovery conference], put it on today's hearing, and so I'm doing, essentially, $10,000 for preparing the motions for sanctions for vio- - excuse me - for not complying with the Discovery Code in $10,000 in sanctions. It shouldn't have been here, frankly, and so that's the order."
Byers's counsel then objected that the sanctions imposed an unreasonable financial burden, she reminded the court that it had reserved continuously on Byers's separate requests for Family Code section 271 sanctions against Chansari, and she asked that "the issue of sanctions" be reserved until both parties could be heard. The court replied that Byers had not established a financial hardship in her response to the RFOs, and it said that it did not recall reserving on Family Code section 271 sanctions. The parties and the court then discussed whether the court had made such a reservation, with the court ultimately realizing that it had.
Next, the court said, "All right. [¶] Listen, this is what I'm going to do, 'cause I do see now in a minute order that I had said that the Court reserves on sanctions issue.... [¶] So, listen, at this time I'm going to order the $10,000 in attorney's fees be paid.
I'm going to reserve to the date of payment on the 271, [$]10,000, sanctions that I'm ordering, that potentially could be offset, if the Court file - orders any 271s against [Chansari], but the $10,000 needs to pay - be paid to [Chansari's counsel] by 30 days from today."
The court set a hearing to "button up" the sanctions for March 2, 2023, stating, "[I]t's going to be specifically to resolve - let me write this down so that I know for sure - although I will ask you folks - it's going to be specifically to resolve the 271 sanction payments that I have ordered today of $10,000 as to Dr. Byers and to resolve any outstanding 271 sanctions that were reserved." The minute order for the January 10 hearing described the second sanction as a Family Code section 271 sanction against Byers's counsel, and it directed Chansari's counsel to prepare a final order consistent with the court's ruling.
The parties submitted competing findings and orders after hearing (FOAHs) in February 2023. Byers's FOAH for the January 10 hearing recited that the court had awarded the first $10,000 in discovery sanctions and the second $10,000 in Family Code section 271 sanctions. Citing provisions from both the Code of Civil Procedure and Family Code section 271, Chansari's FOAH recited that the court had awarded $10,000 in sanctions for Byers's failure to properly respond to the special interrogatories (the first sanction), and $10,000 in sanctions for Byers's failure to properly respond to the requests for production (the second sanction).
At the March 2, 2023, hearing (March 2 hearing), the court again referred to the second sanction award of $10,000 as a Family Code section 271 sanction. However, the record shows that the court did not revisit the substance of its decision to issue the second $10,000 sanction. Instead, the court had reserved the issue of payment of the second sanction, pending a determination of whether there would be any offset pursuant to Byers's separate request for Family Code section 271 sanctions against Chansari. Ultimately, the court ruled at the March 2 hearing that Byers was entitled to $5,000 in sanctions that would offset the unpaid $10,000 sanction ordered against her on January 10, 2023. Again, the court ordered Chansari's counsel to prepare a formal order.
After informing the parties at the March 2 hearing that it needed to review the parties' competing FOAHs from the January 10 hearing to see which of the two correctly captured the court's order, the court denied Byers's proposed FOAH for the January 10 hearing and signed Chansari's proposed FOAH on March 20, 2023. The court signed Chansari's proposed FOAH only after crossing out Family Code section 271 as a source of the awarded sanctions, so the FOAH for the January 10 hearing referred to the sanctions awards as arising from various sections of the Code of Civil Procedure. The court also added language pertinent to the second sanction, stating: "Payment on this amount is reserved pending determination of any off-setting sanctions [Chansari] is due [Byers] pursuant to F[amily ]C[ode] section 271." And although the March 2 hearing had already occurred by the time the court signed the FOAH for the January 10 hearing, the final FOAH stated, "A review hearing is set for March 2, 2023 at 1:30pm regarding payment of [the second sanction], and to determine any outstanding Cal. Fam. Code § 271 sanction requests."
The register of actions shows that, along with his proposed FOAH, Chansari submitted the cover letter required when the other party objects to the proposed order, although the letter itself is not part of our record. (Cal. Rules of Court, rule 5.125(e)(3)(C).) Where the parties disagree as to the content of a proposed FOAH, before signing the order, the court "must first compare the proposed order after hearing to the minute order; official transcript, if available; or other court record." (Cal. Rules of Court, rule 5.125(f).)
The court's signed FOAH for the March 2 hearing states: "The Court grants [Byers's] request for Cal. Fam. Code § 271 sanctions based on [Chansari's] filing an ex parte motion during the noticed unavailability of [Byers's] counsel, in the amount of $5,000, which will offset the $10,000 in discovery sanctions that [Byers] owes [Chansari] from the Court's January 10, 2023 Order on [his] Motions to Compel. [Byers] shall pay the $5,000 balance of discovery sanctions to [Chansari's counsel] no later than April 30, 2023."
DISCUSSION
Byers contends on appeal that the first sanction the court imposed with respect to the RFOs was a discovery sanction and the second sanction was a Family Code section 271 sanction. She argues that the trial court erred in imposing the Family Code section 271 sanction without considering necessary financial information. Alternatively, assuming the second sanction was a discovery sanction, Byers argues that Chansari was ineligible for any sanctions because he failed to file an income and expense declaration; Chansari's discovery RFOs were procedurally deficient in many ways, including failing to provide adequate notice of the amount of monetary sanctions sought; and, finally, any discovery sanction imposed was punitive and unjust. We address her arguments in turn post.
I. The Court Imposed Discovery Sanctions
Byers contends that the trial court erred in awarding $10,000 under Family Code section 271 because the court did not consider the parties' income and assets or whether the sanctions would impose an unreasonable financial burden upon her. We reject Byers's Family Code section 271 argument because the trial court imposed discovery sanctions.
Family Code section 271, subdivision (a) provides, "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which any conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award."
The court directed preparation of the FOAH, and the FOAH signed on March 20, 2023, is the court's final order. Consistent with the court's initial statements at the January 10 hearing, the FOAH recites that the court imposed discovery sanctions, not sanctions under Family Code section 271. The FOAH for the March 2 hearing also states that the second sanction was a discovery sanction. Byers improperly seeks to use some of the judge's inconsistent oral comments and the minute order to contradict the March 20, 2023, FOAH, but the FOAH constitutes the court's ruling and supersedes any prior oral comments and minutes. (See Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633 ["a judge's comments in oral argument may never be used to impeach the final order"]; Smith v. Smith (1941) 45 Cal.App.2d 212, 214 [minute entries authorizing subsequent orders were not final orders].)
II. Law Governing Discovery Sanctions
The law provides that the trial court "shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully . . . opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Code Civ. Proc., § 2030.300, subd. (d).) The same applies to motions to compel further responses to requests for production. (Id., § 2031.310, subd. (h); see also id., §§ 2023.010, subd. (h), 2023.030 [unsuccessfully opposing motion to compel without substantial justification is sanctionable misuse of discovery process].) We review orders imposing discovery sanctions for abuse of discretion and reverse them only for arbitrary, capricious, or whimsical action on the part of the trial court. (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1560.)
III. Absence of a Current Income and Expense Declaration
Byers claims that Chansari was ineligible to receive sanctions because he was required to, but did not, file a current income and expense declaration under rules 5.12 and 5.92 of the California Rules of Court. Even assuming that Byers's interpretation of these rules is correct, she does not establish reversible error. Specifically, Byers does not show that it is reasonably probable that she would have received a more favorable outcome had Chansari filed a current income and expense declaration. (Cf. Burkle v. Burkle (2006) 144 Cal.App.4th 387, 403 [rejecting argument that failure to file an income and expense declaration in violation of Cal. Rules of Court required reversal of Fam. Code, § 271 sanctions without a showing of prejudice]; In re Marriage of Steiner &Hosseini (2004) 117 Cal.App.4th 519, 524 [although a Rule of Court phrased in mandatory language is generally binding on courts, departure from the rule is not reversible error unless prejudice is shown].)
IV. Forfeited Challenges
Byers raises the following challenges with respect to Chansari's RFO to compel compliance with the requests for production: 1) Chansari failed to adequately meet and confer; 2) Chansari did not provide specific facts showing good cause justifying the discovery sought by each request for documents; and 3) Chansari failed to file a required separate statement in support of his motion. She also argues that Chansari failed to provide proper notice of the amount of monetary sanctions sought for both of his RFOs. But Byers does not establish that she timely pursued these arguments prior to or during the January 10 hearing, so she cannot raise these issues for the first time on appeal. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 ["It must appear from the record that the issue argued on appeal was raised in the trial court. If not, the issue is waived"]; cf. Jansen Associates, Inc. v. Codercard, Inc. (1990) 218 Cal.App.3d 1166, 1170 [by failing to raise inadequate notice of section 128.5 sanctions during hearing or request further hearing, appellant waived any objection he may have had upon that ground].)
Byers submitted what appear to be unsolicited additional filings on February 28, 2023, prior to the March 2 hearing. Therein, she mentioned the absence of a separate statement and a showing of good cause with respect to the RFO to compel compliance with the requests for production, and Byers commented that, given these procedural defects, the motion with respect to the inspection demands "probably shouldn't have been heard at all." Byers's belated filings do not alter our conclusion that she failed to timely raise these issues for the January 10 hearing on Chansari's RFOs.
Byers also asserts on appeal that Chansari did not substantiate his RFOs with evidence supporting the monetary sanctions he sought, but she forfeited this argument by placing it in the middle of the section of her brief dedicated to her separate claim that she received inadequate notice of the amount of sanctions. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [failure to provide proper headings forfeits issues discussed but not clearly identified].)
V. Alleged Punitive and Unjust Sanctions
Byers's final contentions on appeal are that the sanctions were unjust and punitive, and she includes a claim that her right to due process was violated by the court's "post-hearing switch of the foundation for the award of the second set of $10,000 in sanctions, from a [Family Code section] 271 sanction to a discovery sanction." For the reasons set forth post, we reject her claims.
A. "Unjust" Sanctions
Without any supporting authority, Byers maintains that the first sanction was unjust because it was her counsel, not Byers, who decided not to provide further responses to the special interrogatories. "The court[, however,] may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct." (Code Civ. Proc., § 2023.030. subd. (a); see also id., § 2023.010, subds. (e), (h) [misuse includes making unmeritorious objections and unsuccessfully opposing motion to compel without substantial justification].) Where a party is represented, the law thus recognizes that a client may engage in discovery misuse even where that misuse results from counsel's advice. The trial court accordingly did not abuse its discretion in sanctioning Byers.
With respect to the second sanction, Byers argues, as she did below, that it was unjust to sanction her for failure to produce documents because Chansari also failed to produce documents in response to Byers's separate requests for production. But, as the trial court recognized, the law provides remedies against a party who violates its provisions with respect to discovery. (See Code Civ. Proc., §§ 2023.030, subd. (a), 2031.310, subd. (h), 2031.320.) The trial court did not abuse its discretion in enforcing the discovery law or in recognizing that Byers could have resorted to a motion to compel.
Finally, in the middle of the section of her brief entitled, "Appellant's Counsel's Explanation; Unclean Hands," Byers briefly asserts that she established that the sanctions would impose a financial burden, citing financial evidence that she submitted after the January 10 hearing. If Byers sought to argue the sanctions were unjust because of the financial burden they imposed, she forfeited this claim on appeal. (Pizarro v. Reynoso, supra, 10 Cal.App.5th at p. 179 [failure to provide proper headings forfeits issues discussed but not clearly identified].) Furthermore, the court found that Byers had not established financial hardship based on the record before it at the January 10 hearing, and Byers does not establish that the trial court abused its discretion by failing to alter its ruling based on a belated submission.
B. Due Process
Byers briefly argues that the second sanction order must be reversed on due process grounds because she allegedly did not receive notice that Chansari sought discovery sanctions or opportunity to oppose the discovery sanctions. As set forth post, we disagree.
First, Byers forfeited this claim by failing to provide any citations to the record in her analysis. (Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears]; Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 589; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 ["If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived"].)
Second, even if we were to ignore the forfeiture, Byers had notice of the discovery sanctions and an opportunity to be heard. (Cf. Shenefield v. Shenefield (2022) 75 Cal.App.5th 619, 631-632 [constitutional due process can be satisfied if court or opposing party gives notice of anticipated grounds for sanctions and court provides an opportunity to at least orally respond].) The September 2022 RFOs requested discovery sanctions, Byers opposed the RFOs, the court heard the matter at the scheduled January 10 hearing, and Byers argued against the imposition of discovery sanctions. The court deemed the matter submitted, then stated that it was granting $20,000 in discovery sanctions but no Family Code section 271 sanctions. There were subsequent inconsistencies in the court's oral statements, its minute orders, and the parties' proposed FOAHs, and the FOAHs signed by the court ultimately confirmed that it had issued discovery sanctions. But Byers does not argue in this appeal that her due process rights were violated as a result of the process by which the court's January 10 oral pronouncements and minute order were converted to the March 20, 2023, FOAH. Here, Byers had notice of, and an opportunity to be heard on, the issuance of discovery sanctions at the January 10 hearing, and the only issue reserved for the March 2 hearing was payment of the second $10,000 sanction pending a determination of any offsetting sanctions.
C. "Punitive" Sanctions
Byers next contends that the $20,000 sanction was punitive. She states, "To demonstrate [the sanction's] punitive nature, it is pertinent to analyze the amount but also, as to the interrogatories motion, (1) what information did [Chansari] seek, (2) when did he get it, and (3) what was its value to his case?" We conclude that Byers has not established reversible error for the reasons set forth post.
First, although Byers suggests that an analysis of the amount of the sanction would establish that it is punitive, she forfeited this argument by failing to provide any actual analysis showing the punitive nature of the amount. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Second, Byers fails to persuade us that the first sanction was punitive because Chansari purportedly discovered the information he requested through Byers's testimony. The interrogatories asked Byers to provide the location (street address, city, and state) of the parties' daughter at 7:00 p.m. on the days that Byers withheld her from visitation with Chansari and allegedly withheld FaceTime communications. The record suggests that Byers told Chansari their daughter had COVID on July 1, 2022, but at an August 2022 visitation review hearing, Byers testified the visitation did not occur because Byers had COVID, Byers isolated with the child for the days recommended by the Center for Disease Control, and the two traveled after it was safe and went to a wedding on July 9, 2022. Byers's testimony, however, did not provide the specific details Chansari requested about their daughter's location or even the exact dates of the isolation, and, to the extent that Byers suggests this information was irrelevant in this action, she does not do so persuasively. The trial court accordingly did not abuse its discretion in finding that Chansari was entitled to verified discovery responses or in finding that Byers's failure to respond to the simple interrogatories constituted sanctionable misuse of the discovery process.
Byers states in her brief that Chansari had FaceTime calls with his daughter starting around July 4, 2022, but the email she cites as purported proof shows only that her counsel and Chansari's counsel disputed in an email exchange whether FaceTime calls were occurring when the child was in Byers's custody.
DISPOSITION
The trial court's order is affirmed.
WE CONCUR: STREETER, J., DOUGLAS, J. [*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.