Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV030842
SCOTLAND, P.J.
In this case, we decide narrow procedural issues based on a limited record. Theresa Messick appeals from the superior court’s order denying her motion to quash deposition subpoenas issued by the Ripon Unified School District (the District) and/or to issue a protective order limiting discovery (Code Civ. Proc., §§ 2025.410, 2025.420) in the District’s administrative action to terminate her employment. The California Teachers Association (CTA), Barbara Kerr, and Vicki Marien (collectively CTA), who are the nonparty witnesses subpoenaed by the District, also challenge the court’s ruling.
Education Code section 44944, subdivision (a)(1) provides that in a teacher dismissal proceeding where the employee requests an administrative hearing, the parties shall have the same duties and right to discovery as parties in a civil action in the superior court. Pursuant to subdivision (a)(2), if this right of discovery is denied by either party, the discovery remedies set forth in the Code of Civil Procedure shall be available to the party seeking discovery, and any discovery motion shall be heard by the superior court.
In addition, Messick’s attorney, Thomas Driscoll, appeals from the superior court’s imposition of $1,000 in discovery sanctions against Driscoll.
For reasons that follow, we shall affirm the order denying the motion and imposing sanctions.
FACTS
In May 2002, the California State Department of Education conducted a “Coordinated Compliance Review” and found that the District was out of compliance for the 2001-02 school year because students with designated English Learner (EL) needs were placed in classrooms where teachers lacked EL certification. (See Educ. Code, § 44253.1.) The District responded by developing an EL Plan, which included an agreement with the Ripon Unified School District Teachers Association (RUSDTA) that all certificated staff obtain EL certification by December 30, 2005, or face the possibility of termination. The agreement was negotiated by a team that included Chuck Carley and Rod Wright, two teachers at Ripon High School where Messick is employed as a permanent certificated teacher with a “Life Single Subject Teaching Credential in Music.” Vicki Marien, a CTA representative, was also involved in the contract negotiations.
In September 2002, the District’s director of curriculum and instruction sent a memorandum to all certificated staff about the need to obtain EL certification. The District sent another memorandum in November 2002, asking individual teachers to sign a written commitment to receive the training. When Messick did not return the commitment form, the District advised her that it risked losing state and federal funding if it did not have properly trained EL teachers, and it warned her that she risked losing her job if she did not obtain EL certification as agreed upon by RUSDTA.
After Messick, who is the only music teacher at Ripon High School, refused to obtain EL certification, the District began proceedings to terminate her employment. (Educ. Code, § 44934.) It charged her with unprofessional conduct, evident unfitness for service, and persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed by the Board of Education or the governing board of the District. (Educ. Code, § 44932, subd. (a)(1), (5), (7).)
Messick disputed the charges on various grounds, asserting among other things that no statute, regulation, or written District policy adopted by the board required her to obtain EL certification. She argued that in light of her lifetime teaching credential, the District could not require her to obtain further credentialing, and the contract between the union and the District was void.
On October 5, 2006, the District issued to the following persons deposition subpoenas and notices to appear and produce documents: Rod Wright and Chuck Carley, who were involved in negotiating the contract between RUSDTA and the District; Vicki Marien, who was a CTA representative involved in the contract negotiations; and Barbara Kerr, who was the president of CTA and had authored a memorandum advising teachers they had an obligation to obtain EL certification. The notices sought the production of (1) all documents relating to the RUSDTA agreement with the District requiring teachers to obtain certification by December 31, 2005, or to resign after the 2005-2006 school year; (2) all documents relating to complaints from parents or students regarding placement in classes where teachers lack EL certification or the inability to be placed in classes because of the lack of certification; and (3) all documents or correspondence from CTA or its local affiliates (a) taking the position that teachers may be or are required to obtain EL certification, (b) regarding California teachers’ obligations to comply with statutes or official state directives to comply with EL certification and/or become “highly qualified” under the federal No Child Left Behind Act, and (c) taking the position that Education Code section 45033 precludes school districts from requiring teachers to obtain EL certification or any other qualification imposed by law after the teacher achieves tenured status.
On October 26, 2006, Messick’s attorney, Thomas Driscoll, Jr., wrote a meet and confer letter asking the District to withdraw its deposition notices and subpoenas on the ground that there was no basis to depose Kerr, Marien, Wright, or Carley. When the District disagreed with Driscoll’s assessment of the case, Messick filed a motion to quash the deposition notices and subpoenas, and to obtain a protective order on October 30, 2006, a few days before the scheduled depositions. Messick also filed numerous objections based primarily on the lack of relevance of the evidence sought by the District, although a few of her objections were based on the burden imposed by the discovery requests. Driscoll instructed the deponents not to appear as scheduled.
In support of her motion, Messick presented the District’s responses to her requests to admit, asserting the District admitted (1) Messick’s credential to teach music is valid for life; (2) she is not legally required to obtain any “professional growth hours” to retain her teaching credential; (3) she is not legally required to obtain EL certification to retain her teaching credential; (4) the District was requiring her to obtain EL certification and was terminating her because she failed to do so; (5) Messick never signed an agreement to obtain EL certification; (6) the District did not commence a grievance alleging that Messick violated the collective bargaining agreement concerning EL certification; (7) pursuant to Education Code section 45033, Messick cannot be compelled to obtain the supplemental EL certification; and (8) since 2001-2002 school year, no EL student at Ripon High School has been denied access to music education. According to Messick, the District’s responses established that the disagreement between the parties was based solely on a question of law involving the interpretation of statutes, and that the proposed depositions sought irrelevant evidence or inadmissible legal opinions from lay people.
CTA joined in Messick’s motion.
Opposing the motion, the District argued it was procedurally deficient and, in any event, the District permissibly sought to discover relevant evidence and/or information reasonably likely to lead to the discovery of admissible evidence. The District, in disputing that it was seeking to discover inadmissible legal opinions, said that Messick or CTA could object if the District asked an impermissible question, but they could not preclude all discovery on this basis. The District also disputed that it had admitted Messick’s interpretation of the governing law was valid or the negotiated contract was void and, as a result, no issues remained to be investigated. And it disputed that the discovery request was unduly burdensome, noting Messick’s motion--which CTA had joined--was conclusory and did not provide a factual basis for the claim. The District sought discovery sanctions, pointing out that Messick had conducted her own extensive discovery and depositions of nonparties--pursuing avenues she now characterizes as irrelevant--and there was no substantial justification for denying the District reciprocal discovery.
As to the alleged burdensome nature of the District’s document, CTA filed a reply brief and declaration from its attorney who said that the requests would require CTA to review and produce “tens of thousands, even hundreds of thousands, of pages of documents” and “could take months of full-time work.”
The District objected to the declaration, pointing out that CTA’s attorney never sought to meet and confer with the District in an attempt to demonstrate the extent of the burden resulting from the document request or to narrow the scope of the request; CTA’s first particularized argument about the burden of production was in its reply brief in support of the motion to quash or obtain a protective order. The District argued that by failing to meet and confer, CTA waived its objections to the depositions and the document requests and that, in any event, the specific volume of responsive documents could have been determined by CTA by the simple expedient of sending out an email to its affiliates. Therefore, the District asserted, at this juncture CTA’s claim that the request is burdensome was speculative and not based on actual facts.
At the discovery hearing, the superior court noted: Messick’s motion to quash or limit discovery was premised in large part upon her claim she had legally established that she could not be fired for failing to obtain EL certification under the relevant statutes. However, because the District had not had an opportunity to explore and investigate all avenues and theories of rebuttal, it was too early for Messick to claim the District’s case was statutorily precluded. Furthermore, her position depended upon a determination that her interpretation of the relevant statutes was correct, which was a determination that could not be made at a discovery hearing.
Thus, the superior court denied Messick’s motion joined by CTA. In doing so, the court specifically declined to make any findings of fact on the merits of the underlying action. It also overruled the objections filed with the motion. Observing it had “never seen a case before where one side did discovery and said now there are no possible other issues that may arise, and I’m going to move to deny the other side all discovery,” the court imposed sanctions of $1,000 against Attorney Driscoll.
LEGAL FRAMEWORK
“[A]ny 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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Code Civ. Proc., § 2017.010; further section references are to the Code of Civil Procedure unless otherwise specified.) “[C]ourts have given the words ‘subject matter’ a definition which is ‘broader than the issues’ and is not limited to admissible evidence.” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 711; Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172-173.)
Accordingly, “‘[f]or discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement . . . .” [Citation.] Admissibility is not the test and information[,] unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.’” (Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8; see also Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 253, fn. 2; Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385.)
The procedure to obtain documents from nonparties is through a “records only” or “records and testimony” deposition subpoena. (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1287.) This is the only mechanism provided for discovery from a nonparty; the distinction in treatment reflects the notion that nonparties, who are less likely to have counsel, be familiar with the issues, or be able to timely react before responses are due, “‘should be somewhat protected from the burdensome demands of litigation.’” (Id. at p. 1290, italics omitted, quoting 1 Cal. Civil Discovery Practice (Cont.Ed.Bar 1999) § 2.14, p. 55.) Nonparty discovery is subject to restriction if it is “unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.” (§ 2019.030, subd. (a)(1); see, e.g., Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1062.)
We review the superior court’s discovery orders for abuse of discretion. (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533.) Its determination will be set aside only if it is shown there was “no legal justification” for the order granting or denying the discovery in question. (Ibid.; see also Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612.) And “[a]bsent a showing that substantial interests will be impaired by allowing discovery, liberal policies of discovery rules will generally counsel against overturning a trial court’s decision granting discovery [citation] and militate in favor of overturning a decision to deny discovery.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987, italics omitted.)
DISCUSSION
I
Messick and CTA claim the superior court abused its discretion in denying their motion to quash or limit discovery. In their view, the information sought by the District was not relevant or likely to lead to the discovery of admissible evidence.
They argue: Pursuant to Education Code section 45033, the District cannot reduce Messick’s salary for failing to obtain EL certification, and it logically follows the District cannot fire her for this reason either. To the extent that the union agreement requires Messick to obtain EL certification, the agreement is void pursuant to Education Code section 44924. Thus, further discovery necessarily concerns irrelevant matters because the only issues that remain involve questions of law and statutory interpretation. Because lay people cannot proffer admissible opinions on those issues, the District has no reason to depose Kerr, Marien, Wright, and Carley, or to obtain the requested documents concerning the RUSDTA contract negotiations, complaints regarding the lack of available EL teachers, and CTA’s positions regarding the obligation of teachers to obtain EL certification or the lack of such obligation for tenured teachers. Thus, they contend, the court had a duty to control the District’s abusive and burdensome discovery requests.
Education Code section 45033 states: “The governing board of any school district shall not decrease the annual salary of a person employed by the district in a position requiring certification qualifications for failure to meet any requirement of the district that such person complete additional educational units, course of study, or work in any college or university or any equivalent thereof.”
Education Code section 44924 states in pertinent part: “Except as provided in Sections 44937 and 44956, any contract or agreement, express or implied, made by any employee to waive the benefits of this chapter or any part thereof is null and void. . . .”
The flaw in their argument is it is dependent upon a resolution of the ultimate question being tried in the underlying administrative hearing--can the District terminate Messick based on her refusal to obtain EL certification, or is such a disciplinary action precluded under the relevant statutes despite the RUSDTA contract obligating teachers to obtain EL certification? Messick and CTA presume their interpretation of the applicable law is necessarily correct; but this cannot be resolved in a discovery hearing. After discovery is done, the District may be able to show their statutory interpretation is incorrect or other factors preclude the application of the statutes upon which Messick and CTA rely. But a discovery motion cannot be used as a de facto motion for summary judgment in an effort to preclude full discovery by one’s opponent.
Moreover, Messick fails to explain why, if the sole issues were resolved as a matter of law by the District’s answers to her requests to admissions, Messick nonetheless deposed two persons from the District and four people from the California Commission on Teacher Credentialing, the California Department of Education, and the San Joaquin County Office of Education. It is disingenuous to seek to preclude the opposing side from conducting discovery on the ground that no issues relevant to the subject matter remain, when it did not deter Messick from deposing several witnesses.
Messick’s claim that the depositions should be precluded because lay people cannot render opinions regarding the law is similarly unavailing. It, too, is premised on her premature assertion that only legal issues remain, and on an unwarranted conclusion that the District’s deposition questions will be limited to such matters. As pointed out by the District’s counsel at the discovery hearing, she has no intention of asking the deponents an inappropriate question of legal interpretation. And if she does ask an inappropriate question, then Messick is free to object. However, this is an insufficient ground to preclude the District from deposing any witnesses at all.
In any event, while it is improper to ask a party deponent to state or explain his or her legal contentions in the case (Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1259), asking Kerr why and on what basis she promulgated a memorandum indicating teachers were obligated to obtain EL certification does not violate this rule. Nor does asking Carley, Wright, and Marien questions about the RUSDTA contract negotiations. Such questions are relevant to the subject matter and are reasonably calculated to lead to the discovery of admissible evidence.
We emphasize that the superior court’s ruling on a discovery motion is reviewed for abuse of discretion, and it is appellants’ burden to establish such an abuse. (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366.) “‘[T]he showing on appeal is wholly insufficient if it presents a state of facts . . . which . . . merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’” (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)
Messick and CTA have not shown anything more than a difference of opinion; they fail to establish that the superior court abused its discretion in denying the discovery motion because the District sought to discover relevant evidence reasonably calculated to lead to the discovery of admissible evidence.
II
Messick and CTA contend there is only a small likelihood of the District discovering admissible evidence from its deposition document requests, and this likelihood is outweighed by the burden placed on them to find and retrieve these documents. We are not persuaded.
A party or nonparty deponent objecting to particular discovery requests as unduly burdensome or oppressive may seek a protective order (§ 2025.420, subd. (b)), but they must demonstrate the burden or expense in producing the requested material “clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (§ 2017.020, subd. (a), italics added; Fairmont Ins. Co. v. Superior Court, supra, 22 Cal.4th at p. 255.)
Here, Messick provided no evidence in support of her claim of burden; she simply asserted she would be burdened by the cost of the deposition transcripts and by missing work to attend the depositions. But “some burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418; cf., § 2017.020.) Given that Messick has freely engaged in her right to discovery, it is not unjust to allow the District to exercise its reciprocal discovery rights by deposing, and obtaining documents from, witnesses who have or are likely to have information relevant to the underlying litigation.
In support of its claim of burden, CTA filed a declaration of its attorney, who said that the requests would require CTA to review and produce “tens of thousands, even hundreds of thousands, of pages of documents” and “could take months of full-time work.” However, this assertion is conclusory, without any factual support, and speculative given there is no evidence that the attorney is familiar with CTA’s methods of recordkeeping or responsible for maintaining CTA’s records.
And there is no evidence that CTA met and conferred with the District, either seeking to limit the document request or showing the request was unreasonable because it could not be satisfied in a non-intrusive or less burdensome manner. (§ 2025.420, subd. (a) [a deponent’s motion for a protective order must be accompanied by a meet and confer declaration under section 2016.040]; § 2016.040 [“[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion”].)
Under the circumstances, and in light of the liberal policy in favor of permitting discovery, the superior court did not abuse its discretion in determining that the minimal evidentiary support for the claim of burden did not clearly outweigh the likelihood the information sought would lead to the discovery of admissible evidence.
III
CTA also argues the superior court was wrong in overruling Messick’s objections that the District’s deposition notices did not meet the requirements of section 2025.220, subdivision (a)(4), which provides the deposition notice shall state: “The specification with reasonable particularity of any materials or category of materials to be produced by the deponent.” In the CTA’s opinion, the notices were not sufficiently specific and particular.
Assuming that by joining in Messick’s motion to quash, CTA also joined in her objections for purposes of preserving appellate review, this contention borders on being frivolous.
For example, CTA alleges that “Document Requests No. 1 and 3 demand documents that ‘refer, relate to or constitute any position or opinion held or taken by you on behalf of [CTA]’ and its local affiliates regarding teacher certifications for specialized training,” which “could encompass any documented remark or thought process [by CTA or Kerr] regarding obtaining teacher certification.”
This exaggerates the breadth of the District’s requests, which specifically were limited to all documents “that refer, relate to, or constitute correspondence from you on behalf of CTA, or its local affiliates,” “that teachers may be or are required to obtain specialized training and/or certification to instruct ‘English Learners’” or “that provisions of the Education Code, including, but not limited to, Education Code section 45033, preclude school districts from requiring teachers to obtain EL certification, or any other certification or qualification imposed by law after the teacher achieves tenured status.” This language cannot reasonably be interpreted as encompassing “any documented remark or thought process” by CTA or Kerr regarding obtaining teacher certification.
CTA claims that “Demand No. 2 also lacked the specificity needed” as it “could encompass any mention of [EL] certification or the ‘No Child Left Behind Act’” and calls for a legal conclusion. This is an unreasonable interpretation of the District’s document request, which expressly asked for all documents “that refer, relate to, or constitute correspondence from you on behalf of CTA[,] or its local affiliates[,] to CTA members, officers[,] or employees regarding California teachers’ obligation to comply with statutes, regulations, other official state directives regarding compliance with EL certification and/or becoming ‘highly qualified’ under the federal No Child Left Behind Act.” Viewed in context, this does not encompass “any mention” of EL certification or the No Child Left Behind Act. Rather, the District seeks documents concerning correspondence from CTA regarding the obligation of teachers to comply with the Act or to obtain EL certification. The request is not vague or lacking in specificity.
According to CTA, “Demand No. 4 sets forth another vague description of materials,” demanding “all complaints against teachers who do not have [EL] certification, whether or not the complaint related to a teacher’s certification status.” Not so. The District requested all documents involving “complaints from parents and/or students regarding placement or lack of placement in teachers’ classes, where the teachers lack appropriate [EL] certification, including, but not limited to, complaints to or from the Office of Civil Rights or other agencies with authority to investigate complaints of discrimination.” In other words, the District seeks documents concerning complaints from students, parents, or agencies that investigate discrimination regarding placement in a classroom where the teacher lacks EL certification or the failure to place the student in a class where the teacher lacks EL certification. The District’s request cannot reasonably be interpreted as covering complaints unrelated to a teacher’s certification status.
CTA also challenges the superior court’s refusal to issue a favorable ruling on Messick’s objections to Kerr’s deposition. In CTA’s view, Kerr is a high level officer within a statewide organization and “taking her away from her duties to testify regarding matters to which she does not have personal knowledge would be harassing and burdensome.” But the District presented undisputed evidence that Kerr issued a memorandum saying teachers were obligated to obtain EL certification. Thus, we presume that she had personal knowledge regarding the contents of the memorandum she promulgated. Furthermore, because the theme of her memorandum is relevant to the subject matter of the underlying dispute, the District is entitled to question her regarding the information expressed therein.
CTA also complains about the superior court’s failure to rule on Messick’s objection to the location of Kerr’s deposition, claiming it did not comport with the limitations set forth in section 2025.250, subdivision (a). Because this objection comprised a mere three lines of Messick’s 37-page statement of objections, we cannot fault the court if it failed to notice the objection. Besides, Kerr did not seek to meet and confer on this issue, and it is not mentioned in Messick’s meet and confer letters. (§ 2025.410, subds. (a) & (c).) It suffices to say that when the District renotices Kerr’s deposition, she can file a written objection on the basis of section 2025.250, subdivision (a) at least three days before her scheduled deposition if the chosen location exceeds the geographical limitations provided by statute. (§ 2025.410, subd. (a).)
Section 2025.250, subdivision (a) states: “Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.”
Section 2025.410 states: “(a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served. [¶] . . . [¶] (c) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.” (Italics added.)
In sum, CTA has not met its burden of establishing that the superior court abused its discretion in overruling any of the numerous objections interposed with respect to the deposition notices and/or subpoenas.
IV
Lastly, Driscoll and CTA challenge the superior court’s decision to sanction Driscoll $1,000 for bringing the unsuccessful motion to quash and/or for a protective order. Because CTA fails to establish that it is aggrieved in any way by the court’s order, our response is limited to Driscoll’s challenge. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 181, pp. 237-238 [only an aggrieved party may appeal]; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342 [one is aggrieved when the judgment has “an immediate, pecuniary, and substantial effect” on his or her interests or rights].)
The pertinent discovery statutes provide that the court “shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice,” or “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.” (§§ 2025.410, subd. (d), 2025.420, subd. (d).)
The court must impose monetary sanctions “unless the losing party convinces that court that [the party] acted with ‘substantial justification.’” (California Shellfish, Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 25, italics in original.) “‘[T]he discovery statutes do not require the court’s order to “recite in detail” the circumstances justifying the award. . . . Indeed, the trial court is not required to make any findings at all.’ [Citations.]” (Id. at p. 26.)
“The propriety of a discovery sanction award is reviewed using the abuse of discretion standard. [Citation.]” (Foothill Properties v. Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542, 1557.) Under this deferential standard, we will uphold the award unless it exceeds the bounds of reason under all the circumstances. (Ibid.; see also Estate of Ruchti (1993) 12 Cal.App.4th 1593, 1601 [discovery sanctions subject to reversal only if arbitrary, capricious, or whimsical].) In applying the standard, “each case must be decided on its own facts, with the appellant having the burden of showing an abuse. [Citations.]” (Kaplan v. Eldorado Ins. Co. (1976) 55 Cal.App.3d 587, 591-592; see also Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at pp. 382-383.)
Simply put, Driscoll fails to demonstrate that the superior court abused its discretion in concluding there was no substantial justification for him to have in effect moved to deny all discovery to the District after he conducted discovery on similar issues on behalf of Messick.
V
Asserting the appeal is frivolous, the District asks us to impose appellate sanctions of $9,000 against Driscoll, Messick, and CTA. (§ 907; Cal. Rules of Court, rule 8.276(e).)
To the extent the District says that the superior court erred in not awarding the full amount of sanctions sought by the District, the issue is not cognizable because the District did not appeal from the order. As a general rule, an appellate court will not review an error committed against a nonappealing party. (Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 779; 9 Witkin, Cal. Procedure, supra, Appeal, § 323, p. 361.)
Unlike an award of discovery sanctions, which must be imposed unless the losing party shows it acted with substantial justification (§§ 2025.410, subd. (d), 2025.420, subd. (d)), sanctions on appeal are governed by a more stringent standard. “[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or when it indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) “An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals.” (Ibid.) Sanctions should be used “most sparingly to deter only the most egregious conduct.” (Id. at p. 651.)
Under this stringent standard the appeal is not frivolous, even though it lacks merit, and the request for appellate sanctions is denied.
DISPOSITION
The superior court’s order denying the discovery motions is affirmed. Messick and CTA shall reimburse the District for its costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)
We concur: BLEASE, J., RAYE, J.