Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, Michael T. Smyth, Judge. Super. Ct. No. D458561
McCONNELL, P. J.
Robert Jaffe appeals an order denying his request for monetary sanctions for discovery abuse against David Stieber, granting an order protecting Stieber from being deposed unless certain conditions existed, and granting monetary sanctions for discovery abuse against Jaffe. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises in the context of a child custody dispute between Jaffe and his former girlfriend, Catherine DiPizzo. Stieber is a physician who treated DiPizzo for alcohol abuse and became her boyfriend.
DiPizzo is not a party to this appeal.
Underlying Child Custody Matter
The original custody arrangement provided Jaffe with physical custody of their daughter and DiPizzo with reasonable visitation, conditioned on her completing a drug and alcohol program and abstaining from the use of any drugs and alcohol.
In September 2003, DiPizzo filed an order to show cause to modify the child custody order. She requested physical custody and child support. In a supporting declaration, she claimed Jaffe had interfered with her visitation, was a poor parent, was an abusive person, had psychological problems and had a filthy home. DiPizzo denied she was an alcoholic.
On October 14, 2003, Jaffe filed an opposition to the modification and a declaration stating DiPizzo was an alcoholic and had inconsistent and infrequent contact with the child. He disputed her claims about his parenting, cleanliness of his home, and his mental health.
Stieber's Deposition and Production of Documents
On October 2, 2003, Jaffe personally served Stieber with a deposition subpoena scheduling Stieber's deposition for October 22, 2003. He demanded Stieber produce various documents.
On October 14, 2003, Stieber obtained a temporary stay of the deposition and filed an order to show cause for a protective order. In a supporting declaration, Stieber made statements attacking Jaffe's character, claiming Jaffe had interfered in Stieber's divorce from his wife, and supporting DiPizzo's good character, including that he had never seen her intoxicated. DiPizzo also filed a motion requesting, inter alia, a protective order limiting the scope of Stieber's deposition based on her physician-patient privilege and requesting the appointment of a discovery referee.
On January 23, 2004, the court appointed Judge Thomas Murphy, retired judge of the San Diego County Superior Court, as a discovery referee for all the pending discovery motions. Judge Murphy, however, recused himself. In August 2004, Jaffe and DiPizzo but not Stieber stipulated to the appointment of Judge Thomas Ashworth III, retired judge of the San Diego County Superior Court, as discovery referee and the court "so ordered." Judge Ashworth issued findings and recommendations in November 2004. Judge Ashworth did not consider or rule on Stieber's request for a protective order. Judge Ashworth did address DiPizzo's motion to quash the deposition of Stieber based on the physician-patient privilege and privacy:
"DiPizzo has filed a motion to quash the deposition of David M. Stieber, M.D. Dr. Stieber is DiPizzo's live-in boyfriend and has filed declarations on her behalf. Under these circumstances, the claims of privacy and physician-patient privilege have been waived. DiPizzo's claims of continuing sobriety are at the heart of this case and Dr. Stieber is in a position to provide relevant information on this and other issues. DiPizzo has placed her drinking and/or sobriety in issue and has therefore waived any physician-patient privilege she may have had. It should be noted that the relationship between DiPizzo and Dr. Stieber does not appear to be one of physician-patient in the first place. It is recommended that the motion to quash be denied and that Dr. Stieber's deposition proceed promptly."
(Italics added.)
On December 8, 2004, the court adopted Judge Ashworth's findings "as the findings and order of the court." Trial was set for January 27, 2005.
On December 10, Jaffe's attorney wrote to Stieber's attorney requesting the immediate production of documents and the setting of a deposition. Stieber's attorney was out of his office from December 20, 2004 to January 2, 2005. Stieber was on vacation from January 7 to 18, 2005.
On December 22, 2004, Jaffe issued a deposition subpoena to Stieber setting depositions on January 11 and 20. Jaffe also requested Stieber produce any and all documents that would support various denigrating statements made about Jaffe in two declarations Stieber had filed in his own divorce case, and in a declaration DiPizzo had filed in support of modifying custody and an award of child support. This deposition subpoena was not personally served on either Stieber or his attorney, but on the attorney's receptionist on January 3.
On December 29, 2004, Jaffe obtained an ex parte order that Stieber and his corporation produce by January 7, 2005, documents he had subpoenaed in September 2004. Stieber responded, stating the documents were not under his control, did not exist, were not readily available, no longer existed, were covered by the physician-patient privilege or were too oppressive and burdensome to produce. The response was signed on January 4 and served on January 7, 2005.
On January 5, 2005, the court ordered the child custody and the third party visitation issues be bifurcated and set the child custody trial for January 27, although it was later continued to April 28, 2005.
By January 6, Jaffe was aware that Stieber would be out of town during the first part of January with DiPizzo. Stieber's attorney confirmed that Stieber would be out of town until January 18, Stieber had indicated he might be available for a deposition after January 20, and he was available nights and weekends. Since Stieber was out of town, he did not appear for the deposition scheduled for January 11, 2005.
On January 18 at an ex parte hearing, Jaffe requested the court order Stieber to appear for a deposition on January 20. Stieber's attorney objected on the basis the court had "no authority to order him to do anything" and any order would be nonbinding because Stieber was not a party. Stieber's attorney, however, also stated Stieber understood "that he will have to sit for a deposition" and asked for flexibility on scheduling his deposition since he was a cardiologist. The court did not issue an order compelling Stieber to submit to a deposition on January 20. The court extended the discovery cut-off date to January 21, 2005. Also on January 18, Jaffe served Stieber's attorney with a deposition subpoena and notice scheduling a second day of deposition for January 24. That same day, Stieber wrote to Jaffe's attorney, stating he was unavailable on the morning of January 20 because of a scheduled medical procedure and complaining about the inadequate notice, but stating he was willing to have the deposition start at 6:00 p.m. on January 20.
Stieber did not appear for a deposition on the morning of January 20, 2005.
On January 20, Jaffe issued an amended subpoena and deposition for the continuation of Stieber's deposition at 9:30 a.m. on January 24. The notice was personally served on January 21.
Stieber submitted to a deposition on January 21. At his deposition, Stieber stated he was not available for a deposition on the morning of Monday, January 24, but would be available on the weekend or during evenings. On January 23, Stieber also sent a letter to Jaffe's attorney confirming he would not attend the deposition on January 24.
Discovery Abuse Motions Filed
On February 23, 2005, Jaffe sought the imposition of monetary sanctions and requested an order to show cause re contempt be issued against Stieber for misusing the discovery process. He sought attorney's fees and costs totaling nearly $60,000.
Child Custody Trial
The child custody trial began on April 28, 2005. Stieber was not called to testify. On May 31, 2005, the court issued a statement of decision, indicating that it found Jaffe was a good parent and that DiPizzo had serious alcohol and drug abuse problems. The court restricted DiPizzo to supervised visitation. Further, the court ordered that "[p]ending further order of the court, no third parties may attend [DiPizzo]'s visitation with [her daughter] unless agreed to in writing by [Jaffe]."
Contempt Proceeding
The hearing on the contempt charges occurred in August 2005. The court acquitted Stieber of all counts. The court found the October 2003 temporary stay of discovery against Stieber had never been lifted. The court noted that neither Stieber nor his attorney were consulted or were signatories to the stipulation that Judge Ashworth would be the discovery referee following Judge Murphy's recusal and therefore Stieber's motion for a permanent protective order was not properly before Judge Ashworth. Further, the court found that Judge Ashworth had neither considered nor ruled upon Stieber's motion and therefore the court's December 8, 2004 order adopting Judge Ashworth's recommendations did not encompass any orders as to Stieber's motion for a protective order. Therefore, the court concluded, the December 8, 2004 order was void to the extent it ordered Stieber to promptly submit to a deposition.
Further, the court found that even if the December 8, 2004 order were valid, it could not find that Stieber failed to promptly submit to a deposition or to produce subpoenaed documents given vacation schedules, the difficulty of notifying Stieber or his counsel of deposition dates, the holidays, and the relatively short period between the order and the discovery cut-off date. The court found Stieber was not guilty of violating the ex parte order of December 29, 2004, requiring him to produce documents by January 7, 2005, because it had not been proven beyond a reasonable doubt that Stieber possessed the documents and Stieber's temporary protective order had not been lifted. The court concluded the December 29, 2004 order was void.
The court found Stieber not guilty of violating orders to appear for depositions on January 11 and January 20 because there was no order lifting the temporary protective order, it was questionable whether the receptionist for Stieber's attorney was authorized to accept service, and there were other problems with the subpoena. The court found Stieber was not guilty of violating a January 18, 2005 order to appear for a deposition on January 20 because no such order was ever issued.
The court found Stieber was not guilty of failing to remain at the January 21 deposition because there was no valid order requiring his deposition and the court could not find beyond a reasonable doubt that Stieber failed to remain at the deposition. Nor did the court find Stieber guilty for failing to appear for a second day of deposition testimony given the lack of a valid court order.
Additional Discovery-Related Motions
On November 15, 2005, Jaffe filed a motion to vacate Stieber's October 2003 temporary protective order. In opposition, Stieber requested monetary sanctions. The hearing on the motion occurred on December 15, 2005, and the order was issued that day.
The court found, as it did in the contempt proceeding, the December 8, 2004 order requiring Stieber's deposition to proceed "promptly" was void because Stieber had not been ordered to appear before Judge Ashworth nor consented to Judge Ashworth hearing his protective order motion, and Judge Ashworth had neither considered nor ruled on Stieber's protective order motion. The court found Stieber had not waived the protective order by being present in the courtroom during the presentation of the discovery issues to Judge Ashworth. Further, the court noted that at the January 18, 2005 hearing, Stieber had questioned the court's authority to order him to do anything.
The court also denied Jaffe's motion for sanctions on the bases that (1) the only sanction available when a nonparty disobeys a deposition subpoena is contempt, (2) "it would be error to award fees in reliance on an overly general declaration," (3) "it is error to use monetary sanctions to punish misconduct" and sanctions must "be strictly compensatory and may not exceed the amount actually expended by the one who was to receive payment, even when the one being sanctioned is guilty of blatant disobedience of a discovery order," and (4) there was insufficient evidence to show that Stieber's difficult conduct during the deposition caused Jaffe to incur any additional expenses.
Further, even assuming the December 8, 2004 order was valid, the court found as to the specific allegations that Stieber did not fail to promptly submit to a deposition or produce documents. The court found that Stieber's submission to a deposition and production of documents was reasonably prompt, given the timing of the December 8, 2004 ex parte motion, holidays, the vacations of Stieber and his attorney, and the short time between the ex parte hearing and the deposition. The court noted there were no valid court orders requiring Stieber to attend a deposition on January 20 or to appear for a second day of deposition. As to Stieber's failure to appear for a deposition on January 24, the court found that Jaffe should have sought an extension of the discovery cutoff, which was then January 21, and an order shortening time for service. The court found that given the timing of the notice and the weekend, Stieber had no reasonable opportunity to object to the deposition. Further, the court observed that Stieber had offered to have his deposition taken on weekends or evenings or on the afternoon of January 24.
The court concluded after viewing the entire videotape of Stieber's deposition that while Stieber's conduct was sometimes immature and "pretty sophomoric," it was not sanctionable. The court noted the problems occurred when Stieber's attorney left the room and Stieber tried to object to continuing questioning while his attorney was absent. When his attorney was present, Stieber's conduct "was okay."
The court denied Jaffe's motion to compel Stieber to answer questions because the issue became moot by the order precluding third party visitation pending further court order. Thus, the court concluded, there was "no action . . . pending before this court to which those answers would be relevant or to which they would produce or likely lead to the discovery of admissible evidence."
The court granted a protective order to Stieber precluding any further deposition "absent an action pending before the [court]." The court also found there was no pending motion.
Jaffe timely appealed, and Stieber has not filed a respondent's brief. Stieber also appealed, but his appeal was dismissed.
DISCUSSION
I
Denial of Monetary Sanctions to Jaffe
Jaffe contends the court erred in refusing to impose monetary sanctions based on Stieber's failure to comply with a December 8, 2004 order that Stieber's deposition proceed "promptly" and a December 29, 2004 order that Stieber respond to Jaffe's request for production of documents by January 7, 2005.
A trial court may impose a monetary sanction for "[m]isuses of the discovery process." (Code Civ. Proc., § 2023.010, formerly § 2023, subd. (a)(9)(1).) However, discovery sanctions "cannot go further than is necessary to accomplish the purpose of discovery" (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613) and may not be used as punishment (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331-332). "In other words, discovery sanctions exist 'not to provide a weapon for punishment for past violations or penalty for past conduct but to secure compliance with orders of the court.' " (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.)
" ' "The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be wilful [citation.]" [Citation.]' " (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)
Jaffe asserts the court erred in finding the December 2004 orders were void rather than voidable. He argues that Stieber failed to timely challenge the orders and therefore waived any defects in the orders. Notably, however, Jaffe on appeal does not challenge the court's findings that Stieber did not engage in discovery misconduct, for example, Jaffe raises no sufficiency of the evidence challenge to the finding that Stieber's deposition proceeded promptly given the timing of the December 8, 2004 ex parte motion, the holidays, and the schedules of Stieber and his attorney.
Jaffe challenges the court's denial of "sanctions because there was 'insufficient evidence of compensatory damage arising from Stieber's conduct.' " In support of his argument, Jaffe points generally to his submission of declarations detailing attorney's fees and costs. The court's specific finding was that Jaffe failed to present sufficient evidence "that Stieber's obstreperous conduct during a portion of the deposition caused Jaffe or his lawyer, Sandra Morris, to incur any additional expense beyond what was being incurred for the purposes of conducting discovery." The record shows that Jaffe complained about Stieber's failure to answer only eight questions. The court found two of these questions were irrelevant, Stieber reasonably refused to answer the remaining questions while his attorney was momentarily absent and Jaffe pursued only one of these questions when Stieber's attorney returned. Jaffe's general argument based on all fees and costs related to discovery issues involving Stieber fails to address the court's specific finding and represents a failure by Jaffe to meet his burden of showing error on appeal.
Even if we were persuaded by Jaffe's argument that the December 2004 orders were merely voidable rather than void and that Stieber waived the defects in the orders, we would not reverse because he has failed to show the court abused its discretion in finding Stieber did not engage in any discovery abuse warranting the imposition of monetary sanctions.
Furthermore, we find no abuse of discretion in the court's decision to also deny sanctions on the basis Jaffe's declarations were overly general. Jaffe asserts "[t]he trial court appears not to have considered the detailed declarations or work product, and instead simply disregarded them," and argues "[t]he trial court abused its discretion in denying sanctions altogether, rather than requesting further information from counsel to make an award."
In support of his sanctions motion, Jaffe submitted two declarations detailing the costs and attorney's fees he had incurred. The first declaration was submitted by Jaffe, not his then current attorney, Sandra Morris. This declaration makes no attempt to distinguish between fees and costs that were due to the asserted misconduct by Stieber for which compensation was sought and fees and costs that were incurred in the discovery process. For example, the declaration lists all the attorney's fees and costs for the actual taking of Stieber's deposition. The declaration also contains a lump sum request for $31,998.43 for attorney's fees incurred in preparing the order to show cause for sanctions, but makes no attempt to distinguish between the various claims of misconduct.
Jaffe misstates in his brief that the first declaration was submitted by Morris.
We note that Jaffe's declaration also seeks fees and costs that were clearly unreasonable. For example, Jaffe requested over $8,000 in fees and costs associated with Stieber's nonappearance for a deposition he scheduled on January 11, a deposition that he scheduled knowing that Stieber would be out of town and for which he had been given written notice that Stieber would not attend. Despite this, Jaffe sought $450 for the time his attorney spent waiting to see if Stieber would appear, $2,025 for the time his attorney spent reviewing, corresponding and talking with Stieber's office about Stieber's failure to attend, $5,355 for the time his attorney spent preparing pleadings for and attending a January 18 ex parte hearing, $150 for an on-site cancellation fee by the video service provider, and $150 for a court reporter and certificate of noncompliance. These costs were not due to Stieber's misconduct, but to Jaffe's improper scheduling.
The declaration submitted by Jaffe's second attorney, Nicholas Leto, requested $17,572.50 in attorney's fees. This declaration also fails to clearly segregate fees that related to Stieber's alleged discovery misconduct. For example, the declaration seeks recovery of fees for preparing a motion to lift Stieber's October 2003 stay. The existence of the stay and the court's ruling that the stay remained in effect at the time of the December 2004 orders were not due to any misconduct by Stieber. In sum, the declarations were overly broad.
Jaffe has failed to establish any abuse of discretion by the trial court in denying his request for monetary sanctions.
II
Protective Order
The trial court ordered that Stieber's deposition not take place unless there was an action pending before the court where Stieber's testimony might reasonably lead to the discovery of evidence relevant to a pending action. The court found there was no such action then pending. We find no error.
Jaffe contends "the trial court was wrong because — as a matter of law — a child custody case remains 'pending' so long as a child is a dependent minor." Additionally, he argues the matter of third party visitation, which had been bifurcated from the child custody trial, was still pending. Jaffe asserts Stieber's testimony was relevant because he had personal knowledge of DiPizzo's sobriety and had been her treating physician.
While it is true the court had continuing jurisdiction over the child custody case and therefore technically there was a "pending" action (see In re Marriage of Kreis (2004) 122 Cal.App.4th 1082, 1085), at the time the order was issued there were no motions or orders to show cause pending that would justify taking Stieber's deposition. Further, the issue of third party visitation had been resolved at the child custody trial by an order that limited DiPizzo to supervised visitation and precluded third party visitation. Finally, as to Jaffe's claim that Stieber's deposition was necessary because he had personal knowledge of DiPizzo's sobriety and had been her treating physician, Jaffe had an opportunity to question Stieber about those matters during the January 21, 2005 deposition, and he did so.
III
Award of Sanctions to Stieber
The court awarded $2,835 in monetary sanctions to Stieber for opposing Jaffe's motion to vacate the protective order. The court found Jaffe's motion "was brought in overall good faith but [was] overly broad" and "necessitated work that was simply not necessary for this particular protective order motion." The court awarded Stieber 75 percent of the time expended by his attorney.
Jaffe contends the court erred in awarding monetary sanctions to Stieber. Primarily, he argues that an award of sanctions was improper because he prevailed on his motion to have Stieber's protective order vacated.
Section 2017.020, subdivision (b) allows a court to impose a monetary sanction against any party or attorney "who unsuccessfully makes or opposes a motion for a protective order, 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."
Jaffe did not prevail. While it is true that in its statement of decision, the court stated it was lifting the October 2003 stay, it is also true that the court immediately proceeded to enter a new protective order. Effectively, the protective order continued in effect, subject to modified terms. Jaffe was not successful in his attempt to remove Stieber's court-ordered protection from discovery.
Moreover, while Jaffe may have had some justification for seeking to vacate the October 2003 protective orders given the rulings in the contempt action, the actual motion Jaffe filed was excessive and required unnecessary work by Stieber and his counsel. This motion spans four volumes of the appellant's appendix and totals more than 700 pages, a length clearly unwarranted by this relatively straightforward matter. Much of the length of the motion is due to the inclusion of 55 exhibits, many of which contain subsidiary exhibits. Most of the exhibits appear unnecessary to the motion and several are included numerous times. The sheer size of this motion required a significant expenditure of time by Stieber and his attorney and an inference could be drawn that Jaffe was motivated by a desire not merely to address the substantive issues but to unduly burden Stieber.
For example, Jaffe included within the exhibits eight copies of declarations Stieber made in his divorce case and DiPizzo made in support of her request for a change of custody and child support, documents that have little relevance to Jaffe's motion.
We note the record on appeal consists of 11 volumes of appellant's appendix, an excessive length given the nature of the issues in this case.
We find no abuse of discretion by the trial court in awarding monetary sanctions to Stieber.
DISPOSITION
The orders are affirmed.
WE CONCUR: HALLER, J., AARON, J.