Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County No. EC045005, Michael S. Mink, Judge.
Marcus, Watanabe, Snyder & Dave and David M. Marcus for Defendants and Appellants Angela Bertolino and Carla Lewis, and for appellant Marcus, Wantanabe, Synder & Dave, LLP.
Narvid Scott, Robert Peter Weiss and Michael Scott for Plaintiffs and Respondents.
CHAVEZ, J.
Defendants and appellants Angela Bertolino and Carla Lewis (collectively, defendants) appeal from the trial court’s orders compelling them to provide plaintiffs and respondents Jon Manzanares and Nancy Gutierrez (plaintiffs) with information and documents supporting their defense to plaintiffs’ claim for an equitable easement and denying defendants’ motion for a protective order. Defendants and their attorneys both appeal from the trial court’s order imposing monetary sanctions against them, jointly and severally. We affirm the trial court’s orders granting the motions to compel and denying the motion for protective order. We reverse the sanctions order in part and modify that order to reflect that sanctions are imposed only against defendants and not their attorneys.
BACKGROUND
Plaintiffs and defendants are neighbors who own adjoining properties in Studio City, California. Plaintiffs and their family have owned their property since 1987, and defendants have owned theirs since 2006. In the spring of 2007, defendants removed a wooden fence that had separated the two properties for many years and informed plaintiffs that they intended to construct an eight foot wall along the property line. A survey undertaken by defendants had shown that the fence removed by defendants had not stood on the actual property line but had been erected on defendants’ property approximately two feet from the actual property line. Plaintiffs objected to construction of the wall, claiming it would interfere with the use of their driveway and garage. The dispute led to the filing of a lawsuit by plaintiffs for a temporary restraining order, a preliminary and permanent injunction, declaratory relief, and a prescriptive and equitable easement.
On May 25, 2007, the trial court granted plaintiffs’ request for a temporary restraining order preventing defendants from building a permanent wall or fence between the two properties. On July 20, 2007, the court granted plaintiffs’ request for a preliminary injunction. On July 30, 2007, defendants filed their answer to the complaint, asserting as a defense to plaintiffs’ claim for an equitable easement that they would suffer irreparable injury if the easement were granted and that the hardship to defendants was greater than the hardship to plaintiffs.
During discovery, plaintiffs’ counsel asked defendants the reason they wanted to build a wall on the area over which plaintiffs claimed to have an easement, and defendants responded that they were concerned about their safety. Defendants claimed to be victims of a cyber stalker they identified only as “Mr. S.,” who purportedly had a criminal history and who was posting comments about defendants on various websites. Defendant Lewis further claimed to have a subjective fear of deviants from her past including her biological father, who had been convicted of kidnapping and released from prison; an unidentified intruder who broke into Lewis’s home when she was seven years old; and the “Pacific Beach Rapist,” who Lewis believed broke into her apartment while she was a student at San Diego State University. At their depositions defendants refused to provide any information concerning Lewis’s biological father or “Mr. S.,” prompting plaintiffs to file a motion to compel discovery and a request for monetary sanctions. Defendants opposed the motion and filed their own motion for a protective order under Code of Civil Procedure sections 2017.020 and 2025.420. In their motion for a protective order, defendants said they did not want to divulge the identity of the alleged stalker because plaintiffs’ counsel would not agree not to contact the stalker and defendants were afraid that such contact would encourage the stalker to resume harassing them. Defendants proposed presenting the requested documents and information to the trial court for an in camera review to verify that the stalking incident actually occurred.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Plaintiffs opposed the motion for a protective order. In support of their opposition, plaintiffs submitted the declaration of their counsel, attesting to plaintiffs’ efforts to accommodate defendants’ concerns. These efforts included an agreement by plaintiffs that only their counsel would review information concerning the stalker and an agreement by plaintiffs’ counsel that he would give defendants’ counsel advance notice if, after reviewing the produced documents, he believed that contacting the alleged stalker was warranted.
At the May 16, 2008 hearing on the parties’ respective motions, the trial court noted that defendants had not raised any concerns about their personal safety and security at the previous hearings on the temporary restraining order and preliminary injunction, but had instead argued that they needed a wall for privacy reasons. The trial court then invited defendants to eliminate the issue by abandoning their argument that they needed a wall for security purposes. After hearing argument from both sides, the trial court denied defendants’ motion for a protective order and granted plaintiffs’ motion to compel, giving defendants 10 days to produce the information and documents sought by plaintiffs. The trial court took under submission plaintiffs’ motion for monetary sanctions.
On May 29, 2008, defendants filed a document captioned “Notice of Withdrawal of Claim of Stalking as a Defense and Compliance with Ruling on Plaintiff’s Motion to Compel Answers and Request for Production of Documents and Request for Sanctions,” in which they withdrew their claims of stalking by “Mr. S.” as a defense to plaintiffs’ equitable easement claim. Defendants’ notice further stated: “Regarding the claims by Defendant Lewis concerning the incident in her childhood in Georgia, the incidents regarding the ‘Pacific Beach Rapist,’ and the incident of her biological father trying to contact her, all documents in her possession or within her custody or control will be included with this Notice and provided to Plaintiffs and their counsel by the May 30, 2008 deadline.”
On June 30, 2008, plaintiffs’ counsel sent defendants’ attorney a “meet and confer” letter that stated: “The Notice of Withdrawal is neither a complete and unequivocal withdrawal of the stalking defense nor full compliance with the Court’s order. Rather, it is an obvious ploy to keep the issue alive while taking one portion of the defense off the table. Thus, both Defendants are in violation of the Court’s order.” The letter further stated: “[P]lease explain to your clients that they cannot have it both ways. Either the need for added security based on these past incidents is off the table, or otherwise I am entitled to receive all relevant information to test the accuracy and veracity of this claim. That includes ‘Mr. S.’ and any other alleged stalker, and all e mails, documents and website identifications as demanded in our written discovery and at the depositions. We already discussed this so I assume that you have shared my thoughts with your clients. Please advise them that I expect to have either a complete and unequivocal withdrawal of this defense, or full compliance with the Court’s Order no later than Monday, July 7th.”
On July 11, 2008, plaintiffs filed a second motion to compel and request for monetary sanctions, which defendants opposed. At an August 8, 2008 hearing, the trial court granted plaintiffs’ motion to compel and ordered monetary sanctions against defendants and their counsel, jointly and severally, in the amount of $6,987.50 for opposing plaintiffs’ motion for a protective order and in the amount of $3,012.50 for bringing the second motion to compel.
On August 21, 2008, defendants filed a motion under section 1008 for reconsideration and clarification of the trial court’s discovery orders and sanctions award. In support of that motion, defendants’ counsel submitted a declaration stating, among other things, that before plaintiffs filed their original motion to compel, he had asked defendants to comply with plaintiffs’ request for documents and information concerning the alleged stalker, but that defendants had refused to do so out of fear that the stalker would start harassing them again.
On October 8, 2008, the trial court issued a modified sanctions order stating that $6,612.50 of the sanctions were against defendants only and $3,387.50 were against defendants and their counsel jointly and severally. This appeal followed.
DISCUSSION
I. Standard of Review
The abuse of discretion standard of review applies to an order on a motion to compel discovery (2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1387 (2,022 Ranch) and to an order imposing sanctions for discovery abuse. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) “In addition, if the trial court reached its decision after resolving conflicts in the evidence, or inferences that could be drawn from the evidence, we review those factual findings to determine whether they are supported by substantial evidence.” (County of Los Angeles v. Superior Court (2006) 139 Cal.App.4th 8, 12.) Under the substantial evidence standard, an “appellate court may not weigh the evidence, resolve conflicts in the evidence, or resolve conflicts in the inferences that can be drawn from the evidence. If there is substantial evidence in favor of the finding, no matter how slight it may appear in comparison with the contradictory evidence, the finding must be affirmed. [Citation.]” (2,022 Ranch, supra, at p. 1387.)
II. Discovery Orders
A. Plaintiffs’ Original Motion to Compel
Section 2017.010 provides that unless the court imposes limits, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The scope of permissible discovery is very broad. (Tien v. Superior Court (2006) 139 Cal.App.4th 528, 535.) “‘Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter....’ [Citations.] [¶]... More specifically, the identity of witnesses must be disclosed if the witness has ‘knowledge of any discoverable matter,’ including fact, opinion and any information regarding the credibility of a witness (including bias and other grounds for impeachment). [Citations.]” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)
As a defense to plaintiffs’ equitable easement claim, defendants contended they needed a wall for security purposes because they were victims of a stalker. The discovery sought by plaintiffs, including the identity of the alleged stalker, was relevant to this defense. Defendants do not contend the information withheld was privileged, nor does the information come under any recognized constitutional or statutory privilege. Defendants cannot legitimately claim a privacy right to this information, since they themselves put the matter at issue. (See Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1492 [no reason to provide heightened protection for information which is relevant, not confidential and concerning a condition directly at issue].) The trial court did not abuse its discretion by granting the motion to compel.
“As used in [section] 2017, subdivision (a), ‘privileged’ means the constitutional and statutory privileges (self-incrimination [Evid. Code, § 940], attorney-client [id., § 950 et seq.], spousal communication [id., § 980], doctor-patient [id., §§ 990 et seq., 1010 et seq.], clergyman-penitent (id., § 1030 et seq.), sexual assault victim-counselor [id., § 1035 et seq.], and official information [id., § 1040]) and the ‘qualified privileges’ for such things as trade secrets (id., § 1060 et seq.), police personnel files (id., § 1043) and tax returns (Webb v. Standard Oil Co. (1957) 49 Cal.2d 509.)...” (Gonzalez v. Superior Court, supra, 33 Cal.App.4th at p. 1547.)
B. Defendants’ Motion for a Protective Order
Section 2025.420, subdivision (b), allows the court, “for good cause shown” to “make any order that justice requires to protect any party... [or] deponent... from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” In moving for a protective order pursuant to this statute, defendants argued that plaintiffs’ sole purpose in obtaining the requested discovery was to intimidate and harass them. In support of their motion, defendants submitted declarations attesting to their fears of “Mr. S.,” the anxiety that the instant lawsuit had caused them, and plaintiffs’ purportedly harassing conduct, which included making loud noises outside defendants’ bedroom window, photographing defendants, and interfering with contractors hired to work on defendants’ property. The trial court considered this evidence and denied defendants’ motion for a protective order, implicitly rejecting their claims of harassment by plaintiffs. We may not reweigh the evidence to come to a different conclusion. (2,022 Ranch, supra, 113 Cal.App.4th at p. 1387.)
The sole reason offered to support defendants’ request for in camera review of the withheld information was that plaintiffs would contact the alleged stalker for the purpose of harassing them. Plaintiffs offered, however, to allow only their counsel to review information concerning the alleged stalker, and plaintiffs’ counsel had agreed to contact defendants’ counsel if, after reviewing the information, he believed that contacting the alleged stalker was warranted. The trial court’s denial of the motion for a protective order was not an abuse of discretion.
During oral argument, defendants’ attorney stated that plaintiffs’ counsel had refused to agree to a proposed compromise allowing only plaintiffs’ counsel, and not plaintiffs themselves, to review information concerning the alleged stalker. That representation is contradicted by the declaration of plaintiffs’ counsel, submitted in opposition to the motion for a protective order, in which plaintiff’s counsel stated: “I told Defendant’s counsel that my client had agreed for only me to view Defendants’ ‘stalker’ material. Additionally, I agreed to give Defendants’ counsel advance notice if after his review of the information, he believed that contacting the alleged ‘stalker’ was warranted. Both of these offers were flatly rejected....”
C. Plaintiffs’ Second Motion to Compel
Plaintiffs’ second motion to compel discovery was necessitated by defendants’ violation of the trial court’s order granting the original motion to compel. At the hearing on plaintiffs’ original motion to compel, the trial court made clear that it was granting the motion “unconditionally” and that defendants had 10 days in which to produce all relevant documents. The trial court also made clear that if defendants were willing to abandon their security argument in its entirety, the information and documents sought by plaintiffs would no longer be relevant and would not have to be produced. Defendants neither abandoned their security defense nor complied with the trial court’s order to produce documents and information. The trial court did not abuse its discretion by granting plaintiffs’ second motion to compel.
III. Sanctions
A. Sanctions Against Defendants
Section 2023.030 gives the trial court power to impose sanctions against a party engaging in discovery abuse. Subsection (a) of section 2023.030 makes the imposition of monetary sanctions mandatory under certain circumstances: “If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” “[T]he plain language of the statute requires the trial court to impose a monetary sanction even for the first [discovery] offense. The only exception to this requirement is for a circumstance constituting a ‘substantial justification’ for failing to respond. The trial court must make a finding this exception exists. The court need not make an explicit finding the exception does not exist as this is implied in the order awarding sanctions.” (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 294 (Parker).)
The trial court did not abuse its discretion in awarding monetary sanctions against defendants when it made discovery rulings against them. The court was required to award monetary sanctions to plaintiffs unless it explicitly found that defendants’ discovery abuses were substantially justified; no such findings were made.
As to the amount of sanctions awarded, section 2023.030, subdivision (a), authorizes the trial court to impose an amount representing “the reasonable expenses, including attorney’s fees, incurred by anyone as a result” of a party’s misuse of the discovery process. In support of the request for sanctions, plaintiffs’ counsel submitted declarations specifying the amount of sanctions requested and an itemization of the number of attorney hours spent in bringing or opposing the various discovery motions and the billing rates of the attorneys involved. In light of this showing, the amount of monetary sanctions awarded was not an abuse of discretion. (Parker, supra, 149 Cal.App.4th at p. 294.)
B. Sanctions Against Defendants’ Counsel
Defendants’ counsel challenges the $3,387.50 in monetary sanctions imposed against them and their clients jointly and severally. That amount represented the expenses plaintiffs incurred in bringing their original motion to compel.
Monetary sanctions against a party’s attorney require a finding that the attorney advised the party to engage in the conduct resulting in sanctions. (Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261.) The burden in such cases is on the attorney to prove he had not advised the client to engage in the conduct resulting in sanctions. (Ibid.) Here, defendants’ attorneys presented evidence that their clients were solely responsible for the conduct that necessitated plaintiffs’ original motion to compel, and there was no evidence to the contrary. In light of the evidence, the imposition of sanctions against defendants’ attorneys was an abuse of discretion.
DISPOSITION
The orders granting plaintiffs’ motion to compel answers and production of documents and motion to compel supplemental discovery responses and denying defendants’ motion for protective order are affirmed. The October 8, 2008 order imposing $6,612.50 in sanctions against defendants only and $3,387.50 in sanctions against defendants and their counsel of record, jointly and severally, is reversed in part and modified to impose $3,387.50 in sanctions against defendants only. The order of $6,612.50 in sanctions against defendants only is unchanged. As modified, the October 8, 2008 order is affirmed. Defendants to bear the costs of appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.