Opinion
A146919
06-19-2018
In re the Marriage of MONAZ MEHTA and VISHAL GROVER. MONAZ MEHTA, Petitioner, v. VISHAL GROVER, Respondent; LORIE S. NACHLIS, Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. FDI-12-778004)
Lorie S. Nachlis (Nachlis) represented petitioner Monaz Mehta (Mehta) in divorce proceedings against respondent Vishal Grover (Grover). During that case, Mehta filed a motion to compel discovery, with a request that Grover be ordered to pay sanctions. Grover opposed the motion, and requested that Mehta be ordered to pay sanctions. While Mehta's discovery motion was pending, the trial court granted Nachlis's motion to be relieved as Mehta's attorney. Mehta, Grover, and Grover's counsel—but not Nachlis—then attended a hearing, after which the trial court entered an order denying Mehta's discovery motion, granting Grover's sanctions application, and directing Nachlis to personally pay Grover $5,500 in sanctions. Nachlis challenges the sanctions order, contending the court violated statutory and constitutional notice requirements. We agree and will reverse the order.
I. BACKGROUND
On October 9, 2012, Mehta filed a petition seeking a divorce from Grover. About a year later, on November 1, 2013, at the parties' request, retired superior court judge Patrick Mahoney was appointed as a temporary judge to preside over the case through a final resolution. (Cal. Const., art. VI, § 21; Cal. Rules of Court, rule 2.831.)
On December 4, 2014, Nachlis, acting as counsel for Mehta, filed a motion to compel discovery. The motion sought orders directing Grover to: provide further responses to Mehta's previously served demand for production of documents; produce additional documents; produce a privilege log; and pay sanctions reimbursing Mehta for the expenses she incurred in filing the motion. Grover opposed Mehta's motion in a brief filed on January 21, 2015. The opposition included a request that the court sanction Mehta, ordering her to reimburse expenses Grover incurred in responding to her motion. Mehta filed a reply on January 26, 2015. Mehta's motion to compel and other pending issues in the case were set to be heard on February 2, 2015.
On January 27, 2015, Nachlis filed a motion to be relieved as Mehta's counsel, advising that a conflict had arisen between the two regarding Nachlis's fees, which Mehta was unable to pay, and that the conflict affected Nachlis's ability to represent Mehta at the February 2, 2015 hearing. The same day (January 27, 2015), acting on behalf of Mehta, Nachlis filed a request for an emergency order scheduling a hearing on January 28, 2015, to consider an ex parte application to stay the proceedings. The application explained that the conflict precluded Nachlis from performing further work on Mehta's behalf.
On January 28, 2015, Judge Mahoney held a telephone hearing on Nachlis's motion to be relieved as counsel and the related stay application. At the hearing, Judge Mahoney issued an order shortening time, set Nachlis's motion to be relieved as counsel to be heard before other issues on February 2, 2015, and continued the ex parte stay application to be heard on February 2, 2015 as well. In the interim, Judge Mahoney advised, to assist any attorney who might be stepping in to represent Mehta going forward, he would issue a tentative decision "spelling out" his thinking on the issues that were then pending before him.
The following day (January 29, 2015), Judge Mahoney issued a tentative order (the tentative order) listing and addressing seven subjects to be considered at the February 2, 2015 hearing. The tentative order confirmed that Nachlis's motion to be relieved as counsel and related stay application would be heard first on February 2. The tentative order also listed five other then-pending issues, including Mehta's motion to compel discovery. Regarding the latter, the tentative order stated: "[The] motion to compel is denied and the Court shall consider an award of sanctions upon receipt of [Grover's] legal fees to respond to the motion."
The tentative order was not filed with the superior court until December 16, 2015, although an attached proof of service indicates that copies were served on counsel on January 29, 2015 by email and by regular mail.
At the February 2, 2015 hearing, Judge Mahoney first heard argument regarding Nachlis's motion to be relieved as counsel, and then granted the motion. Nachlis thereafter remained "as an observer" for about a quarter of the hearing, exiting without comment during a recess. For the reminder of the hearing, Judge Mahoney spoke with Mehta, Grover, and Grover's counsel about other topics, including Mehta's plans for retaining another attorney, the propriety and length of a stay, several immediate financial issues, and visitation with the couple's children. The parties did not argue the merits of Mehta's motion to compel discovery and Judge Mahoney made no ruling on that topic. At the conclusion of the hearing, Judge Mahoney scheduled a status conference for February 23, advising that he would make some rulings in the interim. Later the same day (February 2, 2015), the judge issued an order confirming that Nachlis had been relieved as Mehta's counsel of record, and addressing additional issues unrelated to Mehta's pending discovery motion.
The record on appeal does not include a reporter's transcript for the subsequent February 23, 2015 status conference. But Judge Mahoney issued a written order afterward, on February 25, 2015 (the February 25 order), confirming that Mehta, Grover, and Grover's counsel had attended and that Judge Mahoney had considered "the parties['] submissions and argument" in making his included rulings. The February 25 order addressed a number of outstanding issues in the case, beginning with Mehta's request for a further 60-day continuance of all pending issues while she sought new counsel, a request that Judge Mahoney denied.
In paragraph 12, the February 25 order addressed "Sanctions." It stated: "The Court previously determined that [Grover] is entitled to sanctions for the ill conceived motion to compel filed while [Mehta] was represented by her former counsel [Nachlis]. See Tentative Order Re Matters Pending on February 2, 2015. The Court requested and has received an outline of fees incurred by [Grover] in connection with this discovery. It includes $10,406.50 for responding to the request and $6,745 for the meet and confer process and opposition to the motion. [Grover] contends that the entire sum should be awarded because the parties were providing the information informally. Although the Court agrees that it is in the best interest of the parties to provide the information informally, the Court determines to focus only on the costs incurred in addressing the motion since [Grover] did not raise this concern until the fee request was submitted. The sanctions may be awarded against counsel and the party or one or the other. There is nothing that has come before the Court to suggest that it was [Mehta]'s idea to file the motion. In fact, all of communications and pleadings reflect only the counsel's involvement in the motion. Accordingly, the sanctions are awarded against [Mehta]'s former counsel, the firm of Nachlis & Fink, in the sum of $5,500." (Italics added.)
Proofs of service attached to the February 25 order indicate that a copy was served on Mehta and on Grover's counsel on February 26, 2015, and on Nachlis and her firm on March 11, 2015. The February 25 order was filed with the superior court on November 2, 2015, and Nachlis filed a notice of appeal on November 20, 2015. The record on appeal does not include the "outline" of Grover's fees that the February 25 order referenced, nor any indication such an outline ever was served on Mehta or Nachlis.
We refer to Nachlis and her law firm, Nachlis & Fink, collectively as "Nachlis" herein.
In an earlier order, this court denied Grover's motion to dismiss Nachlis's appeal as untimely. In doing so, the court observed that a notice of appeal must be filed before the earliest of 60 days after service of " 'a document entitled "Notice of Entry" of judgment or a file-[endorsed] copy of the judgment,' or '180 days after entry of judgment.' " (Cal. Rules of Court, rule 8.104(a)(1)); see also, id., rule 8.104(e) [As used in this subdivision, " 'judgment' includes an appealable order if the appeal is from an appealable order"]; Code Civ. Proc., § 904.1, subd. (a)(12) [a sanctions order is an appealable order].) The court further noted that the entry date of an appealable order not entered in the court's minutes is the date the signed order is filed (Cal. Rules of Court, rule 8.104(c)(3)), and that the February 25 order here was filed by the superior court clerk on November 2, 2015. Because Nachlis filed her notice of appeal less than 60 days after the entry date of the February 25 order, her appeal was timely.
II. DISCUSSION
A. Legal Principles
Under Code of Civil Procedure section 2023.030, "the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [¶] (a) . . . 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. . . . If a monetary sanction is authorized by any provision of this title [the Civil Discovery Act, §§ 2016.010-2036.050], 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."
All unspecified statutory references in this decision are to the Code of Civil Procedure.
"A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought." (§ 2023.040.)
It is a misuse of the discovery process to "unsuccessfully and without substantial justification, [make] a motion to compel . . . discovery." (§ 2023.010, subd. (h).) Under section 2031.320, subdivision (b), a court may impose a monetary sanction "against any party, person, or attorney who unsuccessfully makes . . . a motion to compel compliance with a demand [for production of documents], 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."
We review a trial court's ruling on a discovery sanction " 'under the deferential abuse of discretion standard. [Citation.]' [Citation.]" (Does v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.) To the extent that reviewing a sanction order requires us to construe the applicable discovery statutes or to consider a question of constitutional interpretation, however, we do so de novo, without regard to the trial court's ruling or reasoning. (See Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286; In re Conservatorship of John L. (2010) 48 Cal.4th 131, 142.)
B. Analysis
Nachlis contends the February 25 order requiring her to pay monetary sanctions is void because—in violation of the requirements of the Civil Discovery Act and of her due process rights under the federal and state constitutions (Cal. Const., art. I, § 7; U.S. Const., 14th Amend.)—she was not notified the court was considering imposing a sanction on her personally, and she had no opportunity for a hearing to oppose that order.
Nachlis cites the following facts as supporting her position, none of which Grover disputes: Grover requested sanctions against Mehta, not her counsel. The court issued a tentative order on January 29, 2015, denying the motion to compel and stating that it would "consider an award of sanctions upon receipt of [Grover's] legal fees to respond to the motion." The tentative order did not explicitly state that Mehta's counsel might be sanctioned. Nachlis was granted leave to withdraw as Mehta's counsel at the February 2, 2015 proceeding. The court did not hear argument on the motion to compel or on the related sanctions request at that proceeding. Grover, his counsel, and Mehta—but not Nachlis—then attended a further proceeding on February 23, 2015, after which the court issued the February 25 order, directing Nachlis to pay $5,500 in sanctions. The February 25 order stated that the court relied, in setting the sanctions amount, on "an outline of fees incurred by Mr. Grover." There is no record that the outline, if written, was filed with the court, or that a copy of any such document was served on Mehta or Nachlis.
Referring to his wife by her first name, Grover asserted, for example, that "Monaz's obstreperous pattern of behavior should result in sanctions against Monaz."
On these facts, we agree with Nachlis that the February 25 order directing her to pay sanctions violated the Civil Discovery Act. As previously noted, sanctions are only authorized under the act "after notice to any affected party, person, or attorney, and after opportunity for hearing." (§ 2023.030, italics added.) Further, the act directs, "[a] request for a [discovery] sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought." (§ 2023.040.) Grover incorporated his motion for monetary sanctions into his opposition to Mehta's motion to compel. (See, e.g., § 1003 ["An application for an order is a motion"].) In those papers, Grover did not identify Nachlis as a person against whom he was seeking sanctions. Grover now contends, citing no authority, that he was not required to file a notice of motion, and that the notice (and other) requirements stated in section 2023.040, therefore, did not apply to him. We disagree.
"[A] motion for discovery monetary sanctions may be filed separately from a motion to compel [discovery]," or as part of such a motion. (London v. Dri-Honing Corp. (2004) 117 Cal.App.4th 999, 1007 (London); see also, id. at pp. 1008-1009.) A party who successfully opposes a motion to compel discovery may also seek monetary sanctions (see, e.g., §§ 2023.010, subd. (h), 2023.030, subd. (a), 2031.320, subd. (b)), and nothing suggests a different procedure applies in that context. (London, supra, at p. 1005.) A party opposing a motion to compel presumably might file a separate motion for monetary sanctions, or might incorporate a motion for monetary sanctions into the opposing papers, as Grover did. Either way, however, notice is required (§ 2023.030), and the notice must "identify every person, party, and attorney against whom the sanction is sought." (§ 2023.040; see London, supra, at p. 1008 [however the motion is presented, the notice requirement applies].)
"The purpose of the notice requirements 'is to cause the moving party to "sufficiently define the issues for the information and attention of the adverse party and the court." ' [Citations.]" (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) Sometimes this purpose is met even if a notice contains an omission. This may be true, for example, where the supporting papers provide the information that was omitted from the notice. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 ["An omission in the notice [of motion] may be overlooked if the supporting papers make clear the grounds for the relief sought"].)
Applying the same logic, if a party opposing a motion to compel discovery includes a motion (or application) for sanctions in his or her opposing brief, without filing and serving a separate notice of motion and motion for sanctions, it may suffice for the party to provide the statutorily required information in his or her opposition papers. The opposition papers may identify the "person, party, and attorney against whom the sanction is sought." (§ 2023.040.) We reject Grover's assertion, however, that he might elude the notice requirements enumerated in section 2023.040 by simply incorporating his sanctions motion into his opposition to the motion to compel. In interpreting a statute, " ' " ' "[w]e must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." ' " ' " (Corley v. San Bernardino County Fire Protection District (2018) 21 Cal.App.5th 390, 397.) The language of section 2023.040 unambiguously reflects an intent that any person against whom sanctions are sought must be afforded notice specifically identifying the person as the intended target of the request. This intent is also reflected in section 2023.030, which, as noted, provides that a court may only impose sanctions "after notice to any affected party, person, or attorney, and after opportunity for hearing." (Italics added; see, e.g., People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [In interpreting a statute, we " 'consider the language of the entire scheme and related statutes' "].) To interpret section 2023.040 as imposing a notice obligation only on those who elect to include a sanctions motion in moving papers (i.e., in a discovery motion or in a separate sanctions motion), and not on those who include a sanctions motion in opposition papers, would defeat the obvious purpose of the statute and would lead to absurd consequences.
Additionally, if opposition papers incorporate a motion for sanctions, they must include "points and authorities" supporting entitlement to sanctions, and "a declaration setting forth facts supporting the amount of any monetary sanction sought." (§ 2023.040.) The declaration filed with Grover's opposition brief did not include the required information and, on appeal, Grover mistakenly contends he was not obligated to provide it.
Further, as Nachlis points out, " '[a]dequate notice prior to imposition of sanctions is mandated not only by statute, but also by due process clauses of both the state and federal Constitutions.' " (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 208 (Sole Energy).) " '[D]ue process requires fair warning and an opportunity to respond before penalties can be imposed.' " (Ibid.) Monetary sanctions cannot be awarded against an attorney consistent with these due process requirements "where the moving papers seek sanctions only against [the attorney's] clients." (Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 318, 320.) In such circumstances, the attorney is not properly "placed on notice of possible sanctions against him [or her] and the need to prove blamelessness." (In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1076-1078; see also, Corralejo v. Quiroga (1984) 152 Cal.App.3d 871, 873-874 [plaintiff's notice of intention to move for sanctions "did not clearly provide that sanctions were being sought against [defendants'] attorney"; the ensuing sanctions order therefore violated due process requiring reversal]; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 652 [Constitutional due process principles were offended when appellate court sanctioned counsel, without prior notice, for prosecuting a frivolous appeal].)
By issuing an order sanctioning Nachlis—without first giving her notice that she might be personally ordered to pay sanctions, and that she needed to prove her own blamelessness, when Grover had requested sanctions against Nachlis's client, Mehta—the trial court violated statutory and constitutional due process notice requirements and, in so doing, abused its discretion. (See, e.g., Sole Energy, supra, 128 Cal.App.4th at pp. 207-208; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 6.) We, therefore, reverse the order.
Grover urges us to affirm instead, raising a number of arguments to support the order. As noted, he mistakenly asserts that he was not obligated to comply with the notice requirements stated in sections 2023.030 and 2023.040. Additionally, as a practical matter, he asserts, the tentative order should have placed Nachlis on notice because it warned that the court was considering an award of sanctions based on her conduct. We are unpersuaded. Because Grover specifically requested sanctions against Mehta (not her counsel), the tentative order stating that the court was "consider[ing] an award of sanctions" was most reasonably interpreted as a tentative ruling granting that request, i.e., by imposing sanctions on Mehta (not her counsel). The tentative order did not explicitly state that the court was sua sponte considering granting a motion Grover did not make, i.e., a motion to sanction Nachlis. Therefore, the tentative order—entered after briefing on Grover's sanctions motion was completed—did not satisfy the statutory or constitutional due process notice requirements by providing Nachlis fair warning and an opportunity to respond. (§§ 2023.030, 2023.040; see, e.g., Sole Energy, supra, 128 Cal.App.4th at p. 208.)
Grover cites one of six bullet points listed in the tentative order, below the ruling on Mehta's motion to compel and Grover's sanctions motion. The bullet referenced the parties' agreement, in the stipulation to Judge Mahoney's appointment, that counsel would confer with Judge Mahoney before filing any motions. If "[Mehta]'s counsel" had complied with the provision, the tentative order stated, there would have been no need for the motion to compel, because Grover then could have provided the only piece of information the court concluded was owing.
Further, this problem of deficient notice was compounded by the trial court's reliance, in setting the amount of the sanctions award, on information never filed with the court or shared with Nachlis, i.e., information that the court received ex parte. (See Black's Law Dict. (10th ed. 2014) p. 697, col. 1 ["Ex parte" means "[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest"].) In its February 25 order awarding sanctions, the court cited and relied on "an outline of fees incurred by [Grover]," which the court stated it had "requested and . . . received." The record on appeal does not include this outline or any record of the court's having requested it; nor do we find record of the outline or the request for it either in the trial court's register of actions or in the reporter's transcript of the February 2, 2015 hearing, part of which Nachlis attended. In his respondent's brief, Grover does not explain how or when he provided the outline to the court or assert that he ever shared a copy of it with Nachlis.
Grover nonetheless denies the sanctions were issued ex parte, disingenuously pointing out that the trial court issued them "in the course of a noticed motion." He then attempts to distinguish Sole Energy, supra, on that basis. While our analysis does not rely solely on that decision, we are unconvinced by Grover's argument on this point. In Sole Energy, as here, the sanctioned parties had notice of a hearing but the notice did not adequately advise them of the possible sanctions. (Sole Energy, supra, 128 Cal.App.4th at pp. 203-204, 208.) The defendants there were notified that the plaintiffs would seek monetary sanctions related to a discovery dispute, but the notice did not advise them the court might impose terminating sanctions and enter their defaults. (Id. at pp. 204, 208.) Here, similarly, Grover served Nachlis with his opposing papers, and those papers incorporated a motion for sanctions against Mehta, but they did not include a request for sanctions against Nachlis personally. The tentative order did not satisfy the notice requirement, as discussed. The court here then compounded the problem by relying on information it received ex parte in setting the amount of the sanctions imposed on Nachlis.
The point is disingenuous because, as discussed, Grover did not himself file a separately noticed motion seeking sanctions, but only incorporated his sanctions motion into the brief he filed opposing Mehta's motion to compel. The noticed motion Grover here references, therefore, is Mehta's motion. Grover does not explain how Mehta's notice of the filing of a motion to compel discovery satisfied his or the court's obligation to provide notice to Nachlis that sanctions might be imposed against her personally.
Citing Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, Grover also asserts that Nachlis invited the error by failing to argue sanctions at the February 2, 2015 hearing or to request a different hearing date. Grover misstates the relevant facts in that case, however; it does not support his position. Grover describes Yield Dynamics, Inc. as affirming terminating sanctions—over an objection that the trial court did not first hold a hearing—reasoning that the sanctioned party invited the error by failing to request a hearing. In fact, however, the Court of Appeal there affirmed a ruling denying sanctions because the party seeking sanctions presented no evidence it took any steps to secure a formal hearing during trial. (Id. at p. 584.) The case does not address the primary issue here, namely, the sufficiency of the notice afforded to Nachlis that she might be sanctioned personally. As we conclude Nachlis did not receive proper notice on this point, we cannot agree that she invited sanctions by failing to argue the issue at the February 2, 2015 hearing or request another hearing date.
We are similarly unpersuaded by Grover's suggestion that Nachlis must have known she could be personally sanctioned under section 2031.310, subdivision (h), because the provision requires sanctions against an attorney who unsuccessfully moves to compel further responses to a document demand, absent specified circumstances. If we were to interpret section 2031.310, and other similar discovery statutes authorizing sanctions (see §§ 2025.450, subd. (g)(1) [depositions], 2030.300, subd. (d) [interrogatories], 2033.290, subd. (d) [requests for admissions]), as providing adequate notice to those who might be sanctioned, there would be no need for the specific notice requirements stated in sections 2023.030 and 2023.040. We decline Grover's invitation to adopt an interpretation rendering those provisions surplusage. (See, e.g., Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1087 ["the Legislature does not engage in idle acts, and no part of its enactments should be rendered surplusage if a construction is available that avoids doing so"].)
Finally, Grover contends that Nachlis's appeal fails because she has not shown any prejudice resulted from the deficient notice and, therefore, any error was harmless. Not so. When a person does not receive the requisite notice that sanctions may be imposed, the resulting order is void. (See, e.g., Sole Energy, supra, 128 Cal.App.4th at p. 210; Lovato v. Santa Fe Internat. Corp. (1984) 151 Cal.App.3d 549, 553.) The lack of notice itself is prejudice.
Because our conclusion here does not require remand, we do not address Nachlis's request for an order requiring that a different judge hear any further sanctions proceedings against her in this case.
III. DISPOSITION
The order dated February 25, 2015, that was filed in the trial court on November 2, 2015, directing the firm of Nachlis & Fink to pay $5,500 in sanctions to Grover, is reversed. Nachlis & Fink are to recover their costs on appeal.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------