Opinion
G044109
08-23-2011
GARY CRAIG ERVIN, Plaintiff and Appellant, v. FREDERICK W. ELLERMAN, Defendant and Respondent; GARY W. ERVIN, Objector and Respondent.
Gary W. Ervin for Plaintiff and Appellant. Ross Law Group and Mark A. Ross for Defendant and Respondent. No appearance for Objector 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2009-00332653)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Robert D. Monarch (retired judge of the Orange County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Mary Fingal Schulte, Judges. Affirmed.
Gary W. Ervin for Plaintiff and Appellant.
Ross Law Group and Mark A. Ross for Defendant and Respondent.
No appearance for Objector and Respondent.
Gary Craig Ervin appeals from a $6,500 discovery sanction award for attorney fees incurred by his opponent before Ervin's voluntary dismissal of his probate action. Ervin contends the timing of his voluntary dismissal deprived the trial court of jurisdiction to address his discovery abuses, rendering the attorney fee award invalid. To the contrary, the trial court retains jurisdiction and discretion to order payment of an opposing party's costs despite entry of the dismissal (Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, 738 (Brown), and recoverable amounts include attorney fees authorized by law (Code Civ. Proc., § 1033.5, subd. (a)(10)(C)). Established law authorizes attorney fees to compensate for discovery abuses (§ 2023.030, subd. (a)); therefore, the fee amounts were recoverable even if Ervin already submitted his voluntary dismissal, which the record does not reflect. Ervin raises several other challenges that, to the extent they are intelligible, also fail for lack of reasoned argument or citation to authority or an adequate record. We therefore affirm the judgment. Respondent requests in his appellate brief an additional $10,000 in discovery sanctions for defending this appeal, which we deny.
All further statutory references are to the Code of Civil Procedure unless noted otherwise.
I
FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are few. Ervin (plaintiff) filed this probate action against his uncle, Frederick W. Ellerman (hereafter defendant or respondent, as appropriate), seeking a declaration that defendant wrongfully transferred approximately $400,000 belonging to his mother, Evelyn Ellerman, who is also plaintiff's grandmother, into a joint account she held with defendant. A discovery fight soon ensued.
By March 2010, plaintiff failed to produce any documents requested by defendant, and defendant found plaintiff's other discovery responses "abbreviated" and "incomplete." Accordingly, defendant's attorney, Suzan Tran, sent plaintiff a detailed meet and confer letter requesting supplemental responses to rectify these flaws. Plaintiff's attorney, his father Gary W. Ervin, responded by claiming under the rules of court designed to accommodate disabilities (Cal. Rules of Court, rule 1.100) that he would only address meet and confer issues with Tran's superior, Mark A. Ross. In response, Ross explained to plaintiff's attorney that he delegated discovery-related matters to associates to rein in costs for his clients and that, in any event, rule 1.100 was not relevant. Neither plaintiff, nor his attorney provided any further substantive response concerning the meet and confer request, and plaintiff continued to ignore the request for supplemental discovery responses.
In early May, defendant filed a motion to compel discovery responses in three categories: form interrogatories, special interrogatories, and document requests. Defendant also requested approximately $11,000 in discovery sanctions, with a hearing set for June 3. On May 20, the last day to file an opposition to the motion to compel, plaintiff's attorney instead filed a request for a continuance. Defendant opposed the continuance and filed a request for judicial notice of an administrative office of the courts (AOC) vexatious litigant roster and related Sacramento County Superior Court minute orders designating the elder Ervin, plaintiff's attorney, as a vexatious litigant.
At the June 3 hearing, plaintiff's attorney represented to the court that plaintiff had filed a voluntary dismissal without prejudice on May 28. Viewing this information as an oral motion to dismiss, the court dismissed the probate petition, noting May 28 as the effective dismissal date. The court concluded substantive relief on defendant's motion to compel was therefore moot, but found the motion otherwise had merit and would have been granted. Consequently, the court entered a $6,500 "fees order" against plaintiff and plaintiff's attorney, to compensate for the attorney time and costs wasted as a result of the discovery violations. No court clerk entered plaintiff's voluntary dismissal until June 21. The trial court subsequently entered judgment, and plaintiff now appeals.
II
DISCUSSION
A. The Trial Court Had Jurisdiction to Impose the Fee Order
Plaintiff argues the trial court lacked "discretion to hear a monetary discovery sanctions request past the effective date of dismissal . . . ." (Capitalization deleted.) We disagree. The court clerk did not enter plaintiff's voluntary dismissal until June 21, after the court imposed the sanctions order on June 3. We presume the clerk entered the dismissal at or near the time it was presented. (Evid. Code, § 664.) A voluntary dismissal takes effect upon tender. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 11.6.1, p. 11-3 (Civ. Proc. Before Trial) ["The clerk of the court has no power to refuse a request for dismissal," which "is effective upon tender"].)
Plaintiff's attorney represented to the court that he submitted the dismissal on May 28, but the record does not support that assertion. Plaintiff includes in his appellant's appendix a dismissal form with a handwritten notation by an unknown person, stating, "rec[eived?] [¶] 5/28/10 [¶] M. Moon," but the form does not bear a court file stamp. Consequently, the record does not support plaintiff's contention the trial court lost jurisdiction to enter a fee order as a discovery sanction.
Moreover, plaintiff's claim fails even assuming the dismissal took effect on May 28. Timing is not everything with respect to defeating an award of costs to the aggrieved party. Here, defendant incurred significant costs in attorney fees to press plaintiff to meet his discovery obligations before plaintiff decided to dismiss the matter.
The trial court retains jurisdiction to account for and award all costs "despite entry of the dismissal." (Civ. Proc. Before Trial, supra, ¶11:37, p. 11-25.) Specifically, section 1032, subdivision (b), provides that "a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." "As defined by the statute, a '"[p]revailing party"' includes 'a defendant in whose favor a dismissal is entered.' [Citation.] Therefore, upon dismissal of an action in a defendant's favor, that party is entitled to an award of costs under the clear authority and mandate of these statutory provisions. '"No qualifications or conditions are imposed. He [or she] is entitled to . . . costs as a matter of right . . ."'" (Brown, supra, 193 Cal.App.4th at p. 738.)
The defendant "is entitled to costs regardless of whether the dismissal is with or without prejudice." (Cano v. Glover (2006) 143 Cal.App.4th 326, 331; see Brown, supra, 193 Cal.App.4th at p. 738 ["Nothing in the wording of the statute indicates that a defendant's right to recover costs is limited to certain types of dismissals" (original italics)].) In particular, the cost of attorney fees may be recovered "when authorized by . . . [¶] . . . [¶][l]aw" (§ 1033.5, subd. (a)(10)(C)), and the discovery statutes specifically authorize recovery of "reasonable expenses, including attorney's fees, incurred by anyone as a result of" discovery violations (§ 2023.030, subd. (a)). These provisions demonstrate that the timing of a voluntary dismissal does not, as plaintiff asserts, divest the trial court of jurisdiction to enter an attorney fee award to compensate an opposing party for discovery abuse. That the trial court addressed the issue and made its findings here in an already-scheduled discovery sanctions hearing rather than in a subsequent hearing on costs does not bear on the trial court's jurisdiction, as plaintiff asserts. As discussed, the trial court was entitled to order compensation for the attorney fees defendant incurred before the dismissal, and the timing of the entry of the dismissal did not deprive the trial court of jurisdiction. Therefore, plaintiff's attack based solely on the timing of the fee order fails. B. No Due Process Violation
Plaintiff asserts the trial court violated due process by preventing him from opposing defendant's discovery motion and request for sanctions. Specifically, plaintiff asserts the court "designated the Opposition paper 'ex parte' and removed it from the . . . 6/3/2010 hearing without notice of hearing, fair hearing, and notice of ruling as required pursuant to . . . State and Federal Constitution[al] due process requirements."
Plaintiff badly misstates the record. Plaintiff filed no opposition, but rather a last-minute request to continue the hearing. The trial court denied the request, and plaintiff does not assert the trial court abused its discretion. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, [they are] waived"].) The trial court viewed plaintiff's request for a continuance as an ex parte application, apparently because plaintiff failed to comply with the rule that written notice for motions generally must be given 16 days before the hearing date. (Cal. Rules of Court, rule 3.300(a); § 1005, subd. (b).)
Nevertheless, the trial court considered at the hearing the reasons plaintiff sought a continuance and opposed the sanctions motion, including that the "bureaucracy" of dealing with "two or three" attorneys for the opposing party activated a stress-related disability that prevented counsel from meeting or conferring with opposing counsel or otherwise meeting discovery obligations. The trial court's ruling reflects it was not persuaded plaintiff or counsel "acted with substantial justification or that other circumstances make the imposition of sanctions unjust." (§ 2023.030, subd. (a).) We are in no position to second-guess the trial court, particularly where plaintiff argues only that he had no opportunity to present his position, which is untrue. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham)["'error must be affirmatively shown'"].) Plaintiff's due process challenge is devoid of merit.
In a related argument, plaintiff asserts the trial court erred by "attempt[ing] to break the bond between the Discovery Motion and the Request For Monetary Discovery Sanction[s] by treating the motion proceedings as moot and the sanction proceedings as not moot." Plaintiff's argument is far from clear. Plaintiff elaborates that this "use of moot case theory to divide the motion and sanction [sic] contrary to Discovery Act statutory provisions deprived Plaintiff and his attorney of the full right to present 'substantial justification' and 'other circumstances.'"
We discern no error. Plaintiff's argument fails in two respects. First, there is nothing illogical or unlawful about the trial court's conclusion that the dismissal mooted the motion to compel further discovery responses, but not the question of sanctions. This mootness "dichotomy," as plaintiff phrases it, is entirely sound. Second, as noted, plaintiff failed to file any written opposition, but the trial court nonetheless afforded plaintiff and counsel the opportunity to avoid sanctions by justifying their discovery conduct. (§ 2023.030, subd. (a).) That the trial court was not persuaded does not mean its fee order was "void-on-its-face," as they assert. There was no error. C. Request for Judicial Notice
Plaintiff contends the trial court erred by not sua sponte striking defendant's request for judicial notice of an AOC roster and superior court minute orders listing plaintiff's counsel as a vexatious litigant. Specifically, plaintiff contends, "The trial court should have immediately stricken the Defendant attorney's filing and removed it from the . . . 6/3/2010 hearing." Plaintiff claims the court's failure to do so "prejudice[d] the hearing . . . ." Notably, however, the trial court did not grant the request for judicial notice; indeed, the record includes no mention of any judicial action on the notice request. In effect, the trial court denied the request by failing to act on it. Moreover, plaintiff cites no authority imposing on the trial court a sua sponte duty to strike any particular motions or documents submitted by counsel. The duty to bring a motion to strike naturally rests on the party wishing to do so.
Plaintiff's reliance on Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 540, is misplaced. The court's observation there that nothing requires publication of the AOC's vexatious litigant list does not aid plaintiff. The court noted that requiring publication of the list and related forms that included vexatious litigant addresses could frustrate the list's purpose by enabling a vexatious litigant to claim a different address than the published one, and thereby assert mistaken identity in a fraudulent attempt to avoid the vexatious litigant prefiling requirement, as occurred there. Nothing remotely similar is at issue here, particularly since the AOC list attached to defendant's judicial notice request did not include addresses. More to the point, nothing in Kobayashi suggests that trial courts must exercise a sua sponte duty to strike in the circumstances here. The claim of error therefore fails. D. Alleged Settlement Discussions
We deny respondent's request that we judicially notice on appeal the AOC list and other documents. We also deny appellant's request that we judicially notice the subsequent history of case law he cites, of which we are aware, requiring no formal judicial notice.
Plaintiff characterizes the sanctions hearing as a settlement conference in which the trial court abused its discretion by also deciding contested issues of law and fact concerning the discovery sanctions. Plaintiff relies on the proposition that "a settlement conference is not a proceeding where the court will 'hear any matter . . . which involves a contested issue of law or fact.'" (Mezzetti v. Superior Court (1979) 94 Cal.App.3d 987, 991 (Mezzetti).) Plaintiff also cites the following excerpt from Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 71-72 (Barrientos): "This record therefore establishes that the court used its power to impose monetary sanctions on counsel as a tool to coerce a settlement. . . . [T]he trial court may not use the threat of sanctions against their counsel to coerce the parties to reach a settlement."
Plaintiff's argument fails for several reasons. First, the argument makes little sense on its face given there was nothing to settle, since plaintiff dismissed the action. Second, plaintiff merely "[r]efer[s]" this court to the record transcript, without providing page citations or a coherent argument concerning how the record establishes error. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).) An appellant is not at liberty to tax the appellate court to formulate or piece together a basis for reversal, nor to scour the record on the appellant's behalf in search for error. (People v. Stanley (1995) 10 Cal.4th 764, 793; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) The standard of review is to the contrary. (Denham, supra, 2 Cal.3d at p. 564.) Plaintiff therefore forfeits his challenge.
Even overlooking the forfeiture, plaintiff's challenge fails on the merits. It appears plaintiff's theory is that the trial court wrongfully used a threat of sanctions in this action to coerce a settlement in related conservatorship proceedings concerning Evelyn Ellerman. The record does not support this contention. The trial court inquired whether the dismissal might have the effect of limiting, or provide an opportunity for the parties to limit, the issues in the related action, but the other case proceeded on a separate track in a different court and, in any event, the trial court in no way conditioned its sanctions order on a settlement or any other potential outcome in the conservatorship. The absence of coercion distinguishes Barrientos, which is also inapt because the trial court there imposed sanctions abruptly on its own motion, without notice or an opportunity to be heard. (See Barrientos, supra, 30 Cal.App.4th at p. 68 ["At no point did the court give either counsel the opportunity to address its sanctions order"].) Here, in contrast, the purpose of the hearing, which had been on calendar a full month, was to decide the discovery sanctions question. It was not a settlement conference, which also distinguishes Mezzetti. In sum, there is no merit to plaintiff's challenge.
E. Request for Sanctions on Appeal
Respondent requests in his appellate brief that this court sanction plaintiff and his attorney an additional $10,000 for discovery abuses "in light of the substantial additional time and expense involved in responding to this appeal . . . ." But under California Rules of Court, rule 8.276(b)(1), a request for appellate sanctions must be made by a separate "motion . . . served and filed . . . no later than 10 days after the appellant's reply brief is due." Respondent's failure to comply with this requirement is sufficient "grounds to deny the request. [Citation.]" (Bak v. MCL Financial Group, Inc. (2009) 170 Cal.App.4th 1118, 1127-1128.)
III
DISPOSITION
The judgment is affirmed. Respondent is entitled to his costs on appeal.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.