Opinion
A146301 A148051
05-30-2018
In re the Marriage of STEVEN STUPP and ANNEMARIE SCHILDERS. STEVEN STUPP, Respondent, v. ANNEMARIE SCHILDERS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mateo County Super. Ct. No. FAM0110799)
In these consolidated appeals, Annemarie Schilders (Annemarie) asks us to vacate postjudgment orders issued by the family court in the protracted and highly contested dissolution of her marriage to Steven Stupp (Steven). The origin of both appeals is a request for order filed by Steven, asking the family court to compel further responses to discovery, to impose discovery sanctions on Annemarie and her attorney, Ester Adut, and to impose sanctions under Family Code section 271 on Annemarie. At a hearing in June 2015, the family court granted the request and ordered Steven's counsel to prepare the written order. In September of that year, as the result of a clerical error, two conflicting written orders were signed and entered, one prepared by Steven's counsel granting his motion and accurately reflecting the orders pronounced at the June hearing, and one prepared by Adut, continuing the hearing "to __________, 2015."
We refer to the parties by their first names, following the convention adopted by the appellant. Steven filed for dissolution of marriage in September 2010. Since the entry of a stipulated judgment in March 2014, Annemarie has initiated 16 appeals and filed 6 writ petitions. The appeals decided here were consolidated for purposes of oral argument and decision in response to an unopposed motion filed by Steven after both appeals were fully briefed.
Statutory references are to the Family Code unless otherwise stated. Section 271 authorizes the family court to "base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." (§ 271, subd. (a).)
In appeal A146301, Annemarie challenges the September 2015 order granting Steven's motion and awarding Steven discovery sanctions as well as sanctions under Family Code section 271. We shall affirm the order except that we shall reverse the award of sanctions under section 271. In appeal A148051, Annemarie challenges a February 2016 order correcting the obvious clerical error that occurred when the conflicting orders were filed in September 2015. We shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2015, Steven filed a request for order compelling Annemarie to provide further discovery responses, imposing discovery sanctions on Annemarie ($6,316) and Adut ($2,655), and imposing sanctions under Family Code section 271 on Annemarie in the amount of $2,500. The request for order stated that a hearing was scheduled for June 23, and was supported by a declaration from Steven's attorney with exhibits, a memorandum of points and authorities, and a Separate Statement that set forth the seven discovery requests at issue, the objections and responses that Annemarie had provided to them, and Steven's arguments for ordering further responses. Steven argued that the discovery requests sought information relevant to several requests for attorney's fees that Annemarie had filed under section 2030. In addition, Steven argued that the court should impose discovery sanctions to allow him to recover the attorney's fees he incurred in bringing the motion to compel, as documented in his attorney's declaration. And he argued that Annemarie should be "punished for her failure to comply with basic statutory requirements, such as responding to discovery on an issue that was raised by her own motion," and that therefore the court should also impose sanctions of $2,500 under section 271.
Steven sought to compel responses to six requests for production and one special interrogatory. The requests for production demand "[a]ll invoices, bills, receipts or other requests for payment, for all legal and professional fees and costs you have incurred arising from this action from August 1, 2013, through the date of production"; "[a]ll records of payment, including , but not limited to, receipts, invoice deductions, cancelled checks, for all legal and professional fees that have been paid by you or by another person on your behalf from August 1, 2013 through date of production"; "[a]ny and all documents concerning any monetary loans made to you, whether personal or from a financial institution, including but not limited to, agreements, promissory notes, correspondence, records, ledgers, journals, memoranda, contracts, etc. for the period commencing August 1, 2013, to the date of production"; "[a]ny and all documents evidencing any expenses or costs paid by others, whether individuals or corporate entities, on your behalf or for which you received the benefit, during the period from August 1, 2013, to the date of production"; "[a]ny and all credit card statements for all credit card accounts in your name from August 1, 2013, through date of production"; and "[a]ny and all credit card statements for all credit cards that you have used to make payments of any kind from August 1, 2013 through date of production." The interrogatory states, "Identify any and all treatment(s) that you have received for your medical condition(s) from August 1, 2013, through the date of response."
Section 2030 authorizes the award of attorney's fees in family law proceedings based on need and equity. (§§ 2030-2031.) According to the family court, two days of trial, one in October 2015 and one in November, had been set on four separate requests for fees filed on Annemarie's behalf. The trial, which had previously been set for June 11, 2015, was continued to later in the year because Annemarie failed to comply with the local rules as to filing and serving exhibit and witness lists.
Annemarie did not file a response to the request for order. Instead, two court days before the hearing, she submitted and served a 40-page ex parte application requesting that the hearing be continued. The application also sought modification of child and spousal support orders and an award of attorney's fees for representation in connection with three appeals and with several upcoming hearings in the trial court, including hearings scheduled in late July 2015 and later, as well as the hearing scheduled for June 23, 2015. Steven opposed the ex parte application, and the family court denied it in an order signed the day before the hearing and filed the day of the hearing, June 23.
In appeal A145598, Annemarie challenged the denial of her ex parte motion with respect to support modifications and attorney's fees, but not with respect to the request for continuance. (Stupp v. Schilders (June 14, 2017, A145598) [nonpub. opn.], pp. 10, 12, 14.) We affirmed the family court's denial of the ex parte application (see id.), and therefore we disregard Annemarie's extended arguments in this appeal that the family court abused its discretion in denying her ex parte request for attorney's fees.
At the beginning of the June 23 hearing, the family court judge, the Honorable Susan Greenberg, said she had read the pleadings and requests that Steven filed in May with his motion to compel, but she had not seen any response to the motion to compel. She then asked Adut whether she had filed a response on behalf of Annemarie. Adut responded that she had not, and asked why her ex parte request for a continuance was denied. Judge Greenberg responded that the request for continuance "was not timely and good cause was not shown." She then stated that in view of the lack of any response to Steven's motion, it was granted in its entirety.
Adut urged that even though Annemarie had not filed a response to the motion, the court should still hear argument in opposition, and then proceeded to argue that the motion should be continued and to address the merits of the motion to compel.
As to the continuance, Adut claimed that the motion was served at a time when she had informed Steven's counsel she would be unavailable. In response, Judge Greenberg reviewed documents in the court file and documents handed up by Adut, heard argument from Adut and from Steven's counsel as to the issue of unavailability, and then determined that the motion was not served during a period of unavailability. Adut then argued that she was unavailable for so many days after the motion was served that she did not have time to respond. Judge Greenberg determined that despite her unavailability, Adut "had plenty of opportunity . . . to file a response," and noted that Adut could have filed a response instead of "an inappropriate, unwarranted ex-parte petition."
As to the merits, Adut argued that the discovery requests sought documents that are privileged and irrelevant "to anything that was pending at the time." She argued that one of the requests was for Annemarie's written fee agreement with her, which was protected under Business and Professions Code section 6149 and Evidence Code section 952. She also argued that the requests were overbroad in seeking billing statements from before she represented Annemarie and that requests for "documents going back years," including credit-card statements, that would reveal information having nothing to do with Annemarie's income or attorney fees. And she claimed that Steven's counsel refused to meet and confer with her in good faith. Judge Greenberg then asked Steven's counsel to respond to the arguments regarding overbreadth. Steven's counsel argued that in view of Annemarie's section 2030 request for fees, Steven has the right to review Annemarie's attorney's bills to be sure the fees are legitimate, and noted that Annemarie could redact any privileged information that appeared on the bills. Steven's counsel also argued that when reviewing Annemarie's credit card statements earlier in the case, "we found there were some expenditures that were pretty excessive and unnecessary," and that if a party can pay $600 for sunglasses, there should be funds available to pay attorney's fees.
Annemarie does not raise this issue on appeal.
Judge Greenberg said, "The court is mindful that [Annemarie] is currently receiving at least $7,000 a month of spousal support and certainly has the ability to make her every day living expenses as well as pay some of her attorney fees and costs," and authorized Annemarie to redact her attorney fee invoices "as appropriate."
Adut then reiterated Annemarie's request for a continuance, asking the court to continue Steven's motion "for a hearing by which the court can look at each and every request and determine what is reasonable and what is necessary and what is appropriate for discovery." Judge Greenberg denied that request, ordered Annemarie to produce the requested materials within 30 days, ordered fees and sanctions as requested by Steven payable within 90 days, and asked Steven's counsel to prepare the orders. When Steven's counsel's proposed order, designated "Findings and Order After Hearing," was submitted to the family court for signature, it was accompanied by a letter from Adut to Steven's counsel attaching objections and Adut's alternate proposed order. We discuss the alternate proposed order in the portion of this opinion addressing appeal A148051, below.
The objections, which run to 10 pages, were served on Steven's counsel on July 13, 2015. There is no indication in the record that they were filed with the court, except as an attachment to Steven's proposed order. The objections address the substance of the family court's rulings at the June 23 hearing, inaccurately characterized as "tentative decisions announced at the hearing on June 23." The objections amount to an informal and procedurally improper motion for reconsideration. (See Code Civ. Proc., § 1008.) We do not consider them further.
In September 2015, Judge Greenberg signed and entered the proposed order that Steven's counsel prepared (Order), which reflects the rulings pronounced at the June 23, 2015 hearing and recorded in the register of actions for that day. The Order grants Steven's motion to compel; requires Annemarie to provide "further and complete responses containing all of the requested information in each demand for production and special interrogatory as set forth in [Steven's Separate Statement]"; authorizes Annemarie to redact bills "as appropriate"; and grants Steven's requests for sanctions. The Order requires Annemarie to pay Steven $6,316 as a discovery sanction, Adut to pay Steven $2,655 as a discovery sanction, and Annemarie to pay Steven $2,500 as sanctions under section 271. Annemarie timely appealed (appeal A146301).
DISCUSSION
A. Appeal A146301
1. Challenges to the Entirety of the Order
Annemarie argues that the family court lacked jurisdiction to grant Steven's request for order and that therefore the Order is "void and reversible per se." She argues that because Steven served notice of his postjudgment motion on Adut, but not on Annemarie herself, he failed to comply with the service requirement of section 215, subdivision (a), and in the absence of proper notice to her that the motion was before the court, the Order is invalid. The argument lacks merit.
When Steven served his motion, section 215, subdivision (a) provided that, apart from exceptions not applicable here, "after entry of a judgment of dissolution of marriage, . . . no subsequent order in the proceeding, is valid unless any prior notice otherwise required to be given to a party to the proceeding is served . . . upon the party. For the purposes of this section, service upon the attorney of record is not sufficient." The subsequent amendment of section 215 has no bearing on our analysis. (Stats. 2016, ch. 67, § 1.)
Annemarie has forfeited her claim of defective service by Adut's appearing on her behalf to contest Steven's motion and failing to raise the issue of service in the family court. " '[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.' . . . 'Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]' " (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11.) "It is settled that any defect in the form of notice is waived by an appearance to contest the matter involved." (In re Marriage of Askren (1984) 157 Cal.App.3d 205, 211 [discussing predecessor statute Civ. Code, § 4809, which was a restatement of former Civ. Code, § 147, enacted in 1963, as stated in Gortner v. Gortner (1976) 60 Cal.App.3d 996, 999].) And, when a party's attorney of record is directly contacted and represents that he or she is still the attorney of record, the requirement of section 215, subdivision (a) is complied with. (See Ruszovan v. Ruszovan (1969) 268 Cal.App.2d 902, 907 [discussing predecessor statute Civ. Code, § 147].) Here, in addition to appearing on Annemarie's behalf at the hearing, Adut also submitted a declaration to the court verifying that Annemarie was her client. Finally, it is clear that Annemarie had actual notice of Steven's motion, as evidenced by her signature on the ex parte application requesting a continuance of the hearing. When a party has actual notice of proceedings, a "technical failure to comply" with section 215 does not invalidate an order. (Gorter v. Gortner, supra, 60 Cal.App.3d at p. 1001 [discussing predecessor statute].)
Annemarie also argues that the family court "lacked subject matter jurisdiction to grant [Steven's] motion" because the motion to compel was not served on her (as required by § 215) within 45 days of April 24, 2015, the day on which she served her supplemental verified response (as required by Code Civ. Proc., § 2030.300, subd. (c).) But because the motion was served on Annemarie's counsel within the required time, and because Annemarie waived any objection to defects in service, as discussed above, the argument lacks merit. We are not persuaded that Steven's failure to personally serve Annemarie with the motion to compel raises a question of fundamental jurisdiction such that Annemarie can raise her objections to notice for the first time on appeal. (Compare In re Marriage of Oddino (1997) 16 Cal.4th 67, 73 [whether state court has jurisdiction to determine that a domestic relations order is "qualified" under ERISA is a matter of "fundamental jurisdiction" that is properly addressed for the first time on appeal].)
In addition to arguing that the Order is void because the family court lacked jurisdiction to hear Steven's motion, Annemarie argues that the Order must be reversed because Judge Greenberg was biased against her, and therefore her constitutional due process rights were violated. This argument, too, lacks merit. Annemarie's argument rests primarily on Judge Greenberg's denials of her ex parte application for attorney's fees and her request for a hearing on the issues raised in the ex parte application. We have previously ruled that the family court did not err in denying the ex parte application and the accompanying request for a hearing (Stupp v. Schilders (June 14, 2017, A145598) [nonpub. opn.]), and we do not revisit that ruling here. Annemarie provides no authority to suggest that a trial court's nonerroneous ruling denying a party's ex parte request could constitute evidence that the court "harbored bias and prejudice" against that party.
Further, we are not persuaded by Annemarie's unsupported assertion that Judge Greenberg showed that she was predisposed against her by telling Adut that she had veered "way off issue" at the hearing after Adut moved from addressing the motion to compel to arguing the issues raised by the ex parte application that the court had already denied. Nor are we persuaded that Judge Greenberg demonstrated bias by saying, purportedly by way of expressing disapproval of Adut, that in the nine months she presided over the case, "the vast majority of the litigation has been propounded by [Annemarie] and not [Steven]." We will not take it upon ourselves to count the number of papers or motions filed by each party to determine the accuracy of Judge Greenberg's statement, which was apparently a response to Adut's claim that Annemarie needed attorney's fees because she was "strictly defending herself against the onslaught" of motions by Steven.
In sum, we conclude that Annemarie's challenges to the entirety of the Order lack merit.
2. Further Responses to Discovery Requests
In response to Steven's argument in his brief on appeal that postjudgment discovery orders are interlocutory and non-appealable, Annemarie invites us to exercise our discretion to treat her appeal as a writ petition. (See Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1216-1217 [where postjudgment discovery order not appealable, court can treat purported appeal as petition for writ of mandate].) Annemarie, who as appellant has the burden to show error, asserts that the discovery issue has been thoroughly briefed and that the brief and record are adequate for writ review, and we take her at her word insofar as her side of the case is concerned. Steven, for his part, has fully briefed the merits of the discovery order in addition to arguing the issue of appealability. The trial court would be only a nominal party to such a writ proceeding. We have the power to treat a purported appeal as a petition for writ of mandate where the record and briefs include the elements necessary for a writ proceeding, and where the trial court would be only a nominal party, but should exercise that power only in "unusual circumstances." (Olson v. Cory (1983) 35 Cal.3d 390, 401.) We will exercise that power here, where the substantive discovery issues and the sanctions issues are intertwined, and requiring review by petition for writ of mandate could unnecessarily postpone a ruling in an already prolonged appeal in a prolonged dissolution proceeding.
a. Applicable Law and Standard of Review
As a general matter, a party to litigation "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." (Code Civ. Proc., § 2017.010.)
We review the trial court's ruling on Steven's motion to compel for abuse of discretion. "[T]he trial court is vested with wide statutory discretion to manage discovery. [Citation.] '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. [Citation.]' [Citation.]" (Pomona Valley Hosp. Medical Center v Superior Court (2012) 209 Cal.App.4th 687, 692-693.) In reviewing a decision granting discovery, we "must keep liberal policies of discovery statutes in mind." (Forthman v. Boyer (2002) 97 Cal.App.4th 977, 987.) "Absent 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." (Ibid.)
b. Analysis
Annemarie's primary argument is that the family court erred by granting the motion to compel solely on the basis that she had not filed a response. She contends that the family court did not consider any of her objections to the discovery, and instead treated the motion as a "default matter," to be granted in full in the absence of a responsive declaration. Annemarie rests her argument on the trial court's statement near the beginning of the June 23 hearing, "There being no response filed, the motion is granted in its entirety." Annemarie's argument ignores important parts of the record, which flatly contradict her claim that the family court treated the motion as a default. Even before Judge Greenberg made the remark on which Annemarie relies, she said twice that she had read the motion and supporting papers. Furthermore, the family court heard argument from counsel on the merits of the motion. We presume that the family court considered Annemarie's written objections to the discovery requests, which were included in Steven's moving papers, and we presume the court considered the arguments made by counsel at the hearing. Consequently, we reject Annemarie's contention that the family court based its ruling solely on her failure to respond to the motion.
Annemarie argues that the family court abused its discretion in denying her ex parte request for fees to defend Steven's motion to compel and her request for a continuance, made initially in her ex parte application and then repeated at the June 23, 2015 hearing. We have already addressed and rejected her claim that the court abused its discretion in denying her request for fees. (Stupp v. Schilders (June 14, 2017, A145598) [nonpub. opn.]). The claim regarding the requests for continuance similarly lack merit. At an extensive status conference on June 11, 2015, more than two weeks after Steven's motion had been filed, and almost two weeks before the scheduled hearing on the motion to compel, Annemarie could have informed the court that she would need or seek a continuance of the June 23 hearing, but she did not. (See id. at pp. 6, 16.) At the June 23 hearing, Adut represented that the motion to compel had been served during a time when she was unavailable; the family court found that was not the case. The court also rejected Adut's contention at the June 23 hearing that she "essentially had no time" to respond to the motion. In these circumstances we will not conclude that the denial of Annemarie's request for continuance constitutes an abuse of discretion.
3. Discovery Sanctions
Annemarie challenges the provisions in the Order requiring her and Adut to pay discovery sanctions. Steven argues that the provision requiring Adut to pay discovery sanctions is not reviewable in this proceeding because Annemarie lacks standing to raise the issue. He relies on Calhoun v. Vallejo City Unified School District (1993) 20 Cal.App.4th 39, 42 and Taylor v. Varga (1995) 37 Cal.App.4th 750, 761, footnote 12, for the proposition that the appellate court lacks jurisdiction to review a sanctions order against appellant's counsel unless the attorney is included as an appellant in the notice of appeal filed by the client or by the client and the attorney, which is not the case here. We agree with Steven's analysis, and Annemarie concedes the point, so we will not address the issue further. We address only the provision requiring Annemarie to pay discovery sanctions of $6,316.
a. Applicable Law and Standard of Review
The Code of Civil Procedure provides that the trial court "shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully . . . opposes a motion to compel a further response to interrogatories, 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." (Code Civ. Proc., § 2030.300, subd. (d).) The same applies to motions to compel the production of documents. (Code. Civ. Proc., § 2031.310, subd. (h); see also Code Civ. Proc., § 2023.010, subd. (h) ["opposing, unsuccessfully and without substantial justification, a motion to compel" is a misuse of the discovery process].
We review orders imposing discovery sanctions for abuse of discretion, and reverse them only for arbitrary, capricious, or whimsical action on the part of the trial court. (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1560.)
b. Analysis
Annemarie advances several arguments to support her claim that the family court abused its discretion by ordering discovery sanctions against her. It is only in this context that she purports to address the merits of Steven's motion to compel. To the extent she has not forfeited the issues for appeal, we address them here.
Annemarie first argues that the family court abused its discretion by ordering discovery sanctions against her without first considering the merits of her request for need-based attorney's fees to oppose the motion, but this is essentially a repetition of arguments that we have already rejected. (Stupp v. Schilders (June 14, 2017, A145598) [nonpub. opn.].) The gravamen of Annemarie's argument appears to be that because her requests for attorney fees were denied she was unrepresented in opposing Steven's motion to compel, but that is contradicted by the record, which shows that she was represented at the June 23, 2015 hearing by Adut, who argued the merits of the motion.
Under the heading, "Steven did not show good cause for his discovery motion and each demand," Annemarie raises several arguments, none of which persuade us that the family court abused its discretion in ordering Annemarie to respond to the requests or in imposing discovery sanctions. For example, Annemarie argues that in requesting documents that concern the payment of professional fees, Steven's requests for production call for documents protected by the physician-patient privilege. The argument is meritless: Annemarie did not raise it below, and in any event the actual requests seek only documents concerning Annemarie's legal fees. This limitation is reflected in the objections Annemarie made below, which assert attorney-client, but not physician-patient privilege; in Steven's counsel's justification of the request at the June 23 hearing; and in the family court's ruling that information in attorney invoices that is protected by the attorney-client privilege could be redacted. Annemarie also argues that the interrogatory requiring her to identify medical treatments she received seeks irrelevant information that is protected by the physician-patient privilege and her right to privacy. Annemarie did not raise these issues below, except in her written objections to Steven's discovery requests, and therefore she has forfeited this argument on appeal. Even if she had not forfeited it, we would find no abuse of discretion here, where Steven's motion to compel argues that Annemarie tendered the issue of her medical conditions in claiming that her need for attorney's fees arises from her being too ill to work. Annemarie further argues that Steven's requests for documents related to loans, expenses paid by others on her behalf, and credit card statements are irrelevant, protected by her right to privacy, and burdensome and oppressive to produce. At the June 23 hearing she raised these issues only with respect to credit card statements, and therefore she has forfeited her arguments as to the other requests; in the absence of a written response to the motion to compel, we will not consider factual issues concerning the other documents for the first time on appeal. In response to Annemarie's argument as to the credit card statements, Steven argued that the information is relevant to Annemarie's need-based request for fees, as they bear on sources of income she may have beyond spousal support. Apart from restating her objections, Annemarie's only argument before us is that, just as information about her expenses would be irrelevant to determinations of child support, it is irrelevant to determinations of need-based attorney's fees. She cites no authority to support her argument, and disregards contrary authority: Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 253, explains that even though expenses are for the most part irrelevant to child support, they are relevant in other contexts, including the award of need-based fees. Accordingly, we will not conclude that the family court abused its discretion in ordering Annemarie to provide responses to Steven's requests.
Annemarie's opening brief contains a conclusory claim that, because of a June 28, 2016 order, the Order is moot insofar as it requires her to produce medical information or medical records. She does not explain the relevance of the June 28, 2016 order or present any argument or authority to support her claim of mootness, and therefore we disregard the claim. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Separately, Annemarie argues in very general terms that Steven did not make the showing that is required to justify access to confidential information. The argument lacks merit. Annemarie discusses general principles of the right to privacy, the requirement that confidential information sought in discovery be relevant to a disputed issue, and the balancing of interests required in ordering the disclosure of confidential information, but she provides no citations to the record, discusses no specific facts in the case, and does not explain how the family court's order here, which we presume to be correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 566), is erroneous.
Annemarie also argues that Steven failed to show a good-faith effort to meet and confer and that the family court abused its discretion in failing to consider that before imposing sanctions. She concludes that in the absence of a good-faith effort by Steven, the parties had legitimate differences of opinion about discoverability "so that there was substantial justification" for her to not respond fully to his demands. The argument lacks merit. At the June 23, 2015 hearing, Annemarie raised the issue of whether Steven's counsel properly met and conferred. We presume that the family court considered the argument and concluded that Steven had shown a good-faith effort, and the record before us includes substantial evidence to support this conclusion, in the form of a declaration and supporting exhibits from Steven's counsel: Steven's counsel sent Adut a letter setting out alleged deficiencies in Annemarie's responses to seven special interrogatories and 11 requests for production; in response to a subsequent inquiry from Steven's counsel, Adut simply served supplemental responses; Steven's counsel viewed the supplemental responses as unsatisfactory, in at least some respects; and in the absence of further communication from Adut regarding the issues that had been raised in the meet-and-confer letter, Steven filed a motion to compel responses to one of the seven interrogatories discussed in the letter and six of the seven requests for production. In these circumstances, we see no abuse of discretion in the family court's implied determination that Steven's counsel made a good-faith effort to meet and confer.
At the hearing before the family court, Annemarie did not address the issues of discovery sanctions, except indirectly when she accused Steven of "misus[ing] discovery." On appeal, she argues generally that she acted with "substantial justification" and that circumstances make the award of sanctions unjust under Code of Civil Procedure section 2023.030, subdivision (a). She contends that an award of sanctions is unjust because Steven violated certain local rules and standing orders in filing his motion to compel; because his requests for production seek information about legal fees she incurred since August 2013, rather than November 2013; and because the family court denied her requests for a continuance and attorney's fees. These contentions, if they had been accepted by the family court, might have justified a decision not to award sanctions, but the question before us is not whether the family court might have reasonably made a different decision. Our task is to determine whether Annemarie has shown us that the family court's order represents an abuse of discretion. In imposing discovery sanctions here, the family court impliedly found that there was not substantial justification for Annemarie's conduct and that the circumstances did not make the imposition of sanctions unjust. Annemarie does not persuade us that the family court abused its discretion in making those implied findings and in awarding discovery sanctions to Steven.
We disregard Annemarie's argument that "[t]here was no substantial justification to sanction [her]," which misstates the standard for imposing sanctions.
Finally, Annemarie argues that the discovery sanctions are intended to punish her, and not to accomplish the objects of discovery. Annemarie's argument rests on her contentions that she has debt, that her income is insufficient for her living expenses, and that her income in the month before she filed her ex parte request was $1,000 less than her average monthly income over the past 12 months. Annemarie ignores the family court's finding that she "is currently receiving at least $7,000 per month and certainly has the ability to make her every day living expenses as well as pay some of her attorney fees and costs." Annemarie offers no evidence that the family court intended the discovery sanctions to be punitive, and no authority to support a claim that the discovery sanctions awarded here, which represent a portion of the fees Steven incurred in meeting and conferring with Annemarie's counsel as to the discovery requests and in moving to compel responses, are punitive.
In sum, we are not persuaded that the family court abused its discretion in awarding discovery sanctions against Annemarie, and we shall therefore affirm the award.
4. Section 271 Sanctions
We review a sanctions order under section 271 for abuse of discretion. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.
In her opening brief on appeal, Annemarie raises a host of arguments challenging the family court's imposition of $2,500 in section 271 sanctions, but because she did not file a written opposition to Steven's request for section 271 sanctions and because she did not argue the issue at the June 23 hearing, under the general rule of forfeiture, she cannot raise these issues for the first time on appeal. (Newton v. Clemons, supra, 110 Cal.App.4th at p. 11.) We have discretion, however, to consider arguments presented for the first time on appeal if they involve only legal questions on undisputed facts. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.)
We agree with Annemarie that one of her arguments raises such a question: specifically, her claim that on the record here, the $2,500 sanction is for an arbitrary amount, imposed for discovery conduct for which fees and costs were separately awarded, and as such is not authorized under section 271, which permits only an award of fees and costs (§ 271, subd. (a)). And we agree that in awarding section 271 sanctions in the circumstances here, the family court abused its discretion.
Steven's request for order offered no justification for awarding $2,500 under section 271. His attorney submitted a detailed declaration explaining why discovery sanctions should be awarded in the total amount of $8,971, but in support of section 271 sanctions she says only, "I also request the Court order [Annemarie] to pay sanctions [under] § 271 in the amount of $2,500." She offers no explanation of how that amount was determined, and does not identify any conduct for which the sanction should be imposed, apart from the discovery conduct that gave rise to the discovery sanctions.
Section 271 does not require a precise correlation between the sanctioned conduct and specific attorney's fees, but section 271 does not allow sanctions outside of attorney's fees and costs. (Saganowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1154.) Steven points only to argument, and not to evidence, in contending that the section 271 sanction here is tied to fees incurred. And although he argues that the section 271 sanctions were not sought or imposed for bad discovery conduct, he does not point to any evidence that identifies other conduct for which they supposedly were sought and imposed.
In the absence of evidence that the section 271 sanctions represented Steven's attorney's fees and costs, and in the absence of evidence that they were imposed for anything other than discovery conduct, for which Annemarie had separately been ordered to pay Steven's attorney's fees and costs, we conclude that the family court erred in imposing section 271 sanctions here. B. Appeal A148051
We now address Annemarie's separately filed appeal challenging the family court's correction of a clerical error.
1. A Series of Unfortunate Events
We piece together the background facts from the register of actions, the brief appendices filed by the parties, and our review of the records in two related appeals, A146301 and A148382, which were argued before us and submitted on the same day as this one.
We take judicial notice of the records of those appeals on our own motion. In appeal A148051 Annemarie elected to proceed with a very short appendix. As a result of apparent omissions in Annemarie's appendix, Steven filed his own abbreviated appendix, which was followed by Annemarie's motion to strike material in that appendix and her request that we take judicial notice of additional family court records. The motion and request were opposed and taken under submission for decision with the merits. We now deny the motion to strike and grant the request for judicial notice.
On September 11, 2015, the day Judge Greenberg signed and entered the Order, which we have just addressed in appeal A146301, she signed and entered a second order, also purporting to be an order after the June 23, 2015 hearing. This second order was a proposed order that Adut had prepared (Alternate Order), which was submitted to the court along with Steven's proposed order and Adut's objections, and which states that the June 23 "Hearing on Petitioner's Motion to Compel, filed May 21, 2015, is continued to __________, 2015."
Annemarie's appeal suffers from an inadequate record and an incomplete statement of facts. She does not include the two conflicting September 2015 orders in her appendix for appeal A148051, nor does she discuss the facts surrounding those orders in her appellate briefs. It is Annemarie's burden as appellant to provide us with an adequate record for appeal (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141), and to state all the evidence fairly in her brief. (Cal. Rules of Court, rule 8.204(a)(2)(C).)
We know the entry of the Alternate Order was a clerical error, because the family court did not continue the hearing. (Estate of Remick (1946) 75 Cal.App.2d 24, 28 [a clerical error may be made by a clerk or a judge] (Remick).) The Alternate Order contradicts the family court's on-the-record rulings and the register of actions. Nothing in the record indicates that Annemarie, Adut, or anyone else understood the Alternate Order to reflect the family court's ruling or to have any other effect: the court never scheduled a continued hearing, and it seems that no party filed papers in the court asking it to set one.
In appeal A146301, Annemarie says nothing about the Alternate Order except that it was filed simultaneously with the Order, and is not being appealed.
In December 2015, Steven's counsel sent an email to Judge Greenberg informing her of the clerical error. We do not know whether Steven's counsel had previously attempted to contact Adut about the error; we do not know why the parties did not file a stipulation asking the court to correct the clerical error; and we do not know why Steven's counsel made the request by email, or why the request was made to Judge Greenberg, who had previously recused herself from the matter.
A member of the superior court staff advised Steven's counsel to refer her request to the Honorable Richard DuBois, the judge to whom the case had been assigned. She did so, copying Adut, and Judge DuBois responded in an email addressed to both parties' counsel, suggesting that the parties schedule a status conference "so that I can get up to date on what is going on with this case and what, if anything needs to be scheduled. I am not inclined to sign any orders without some discussion with all parties." Email correspondence ensued between Steven's counsel's office and Adut, but they could not coordinate a date, so Steven's counsel emailed Judge DuBois to set a date. Judge DuBois suggested that if the parties could not agree upon a date, they should set up a telephone conference call "so we can select a date or see what, if anything, needs to be done." Steven's counsel asked to set a telephone conference for the next day, December 22, and Judge DuBois agreed. We do not know whether the call took place, but on January 3, 2016, Steven filed a "Stipulation and Order request to set Status Conference." That stipulation is not part of the record.
Apparently, through a combination of emails and telephone calls an "appearance" was scheduled for January 29, 2016. We know that on January 7, 2016, a hearing was set for January 29 on a request for order that Annemarie had submitted to the court. We also know that on January 11, Steven's counsel sent an email to Judge DuBois to clarify that January 29 would be only a status conference, and not a hearing on any requests for orders filed by Annemarie. Judge DuBois responded to both parties' counsel: "As my clerk explained to Ms. Adut on the telephone last Friday, it was my intent to set the status conference and all outstanding motions for January 29. (Apparently there was a considerable delay between my signing and setting motions and the entry of those orders by the clerk's office[.]) She explained to Ms. Adut that if both parties agreed that there was insufficient time to serve or respond to the outstanding motions, I would have no problem continuing the motions. It looks like you both agree that the motions are not ready to be heard. Why don't both sides appear for the status conference so that we can coordinate the new dates for hearings and see what else needs to be done in this matter." We do not know if there were any responses to that email, and nothing in the record or the register of actions sheds any further light on scheduling for January 29.
The request had been submitted to the court on December 31, 2015. Judge DuBois signed the order setting the hearing on January 4, 2016, and the order was entered three days later. At the January 29, 2016 status conference, the court continued the hearing to March 4.
On January 29, 2016, a status conference was held before Judge DuBois at which neither Annemarie nor her counsel was present. Steven's counsel raised the issue of the two September 2015 orders, and Judge DuBois suggested that Steven's counsel prepare an order correcting the problem. Steven's counsel did so, and Judge DuBois signed and entered the order in February 2016. The order vacated the Alternate Order (described as an order prepared by Annemarie, "which did not accurately reflect the Court's orders made on June 23, 2015"), and "replaced" it with the terms of the Order, which did.
The following colloquy opened the conference: "THE COURT: So that brings us to the Stupp and Schilders matter. [¶] MS. FIELD [counsel for Steven]: Good morning your honor. Jamie Field, who is present with [Steven]. It appears we're the only people present this morning. [¶] THE COURT: No word from Ms. Adut? [¶] MS. FIELD: No."
In purporting to "replace" the vacated order with the terms of an order that had already been signed, entered, and appealed, the February 2016 order is awkwardly phrased. In context, the "replacement" of the Alternate Order with the terms of the Order merely emphasizes that the Order (which was then under appeal) was not affected by the February 2016 order. We disregard Annemarie's contention that the February 2016 order is a new, substantive order that addresses discovery issues and orders sanctions. It plainly was not.
Annemarie timely appealed the February 2016 order (appeal A148501).
2. Analysis
Relying on section 215, subdivision (a), Annemarie argues that the order is invalid because she was not given the requisite prior notice. No one suggests that Annemarie received the personal notice required by section 215. There is evidence in the record to suggest that Adut, as Annemarie's counsel of record, had been informed about the status conference and the subjects to be addressed. But there is no dispute that Adut was not served with proper notice, either. Steven argues that the family court was authorized to correct its own clerical error without notice to Annemarie, and that the February 2016 order is valid. He also argues that even if the family court erred in entering the order without giving prior notice to Annemarie, there is no miscarriage of justice.
Adut does not address the issue in the briefs, and at oral argument she conceded that she had received the emails that Steven submitted to us in his appendix.
At some point, Steven sought sanctions under section 271 for Annemarie's failure to appear at the January 29 status conference. At a later hearing, Judge DuBois asked Adut why she hadn't appeared on January 29, and Adut responded that she had not received notice of the status conference. Judge DuBois stated that he signed an order setting the status conference, and asked Steven's counsel to provide proof that it had been served. Apparently there was no such proof. At a hearing in May 2016, Judge DuBois addressed the issue of sanctions and stated that he had been unable to locate anything showing that Annemarie or Adut had received notice of the status conference and that therefore he did not believe that failure to appear was intentional. After giving the parties the opportunity to comment, Judge DuBois found that failure to attend the status conference was not sanctionable conduct because of lack of notice.
Steven has the stronger position. "[A] court may, at any time, and with or without notice, or on its own motion, correct a judgment by a nunc pro tunc order so as to make the judgment as entered conform to the judicial decision actually made." (Remick, supra, 75 Cal.App.2d at p. 27.) "[A] court may not correct a judicial error by an order so entered, [but] errors due to the failure of a record to speak the truth or to conform to the decision rendered and clerical misprisions generally of which the record affords the evidence, may be corrected at any time by the court upon its own motion or upon motion of an interested party, with or without notice." (Id. at p. 28.) Thus, a trial court judge can correct a clerical error made by the court without giving notice, but cannot correct a decisional order unless proper notice is provided. On the evidence in the record before us, which includes a transcript of the June 23, 2015 hearing, the September 2015 orders, and the court's register of actions, the entry of the Alternate Order was an obvious clerical error. Accordingly, the family court was within its authority to vacate the Alternate Order, even without providing notice to Annemarie.
Annemarie argues that because Judge DuBois, who signed the February 2016 order, did not preside over the June 23, 2015 hearing or sign the Order and Alternate Order, he could not properly determine that the entry of the Alternate Order was a clerical error. She argues that the reason judges can determine that their own errors are clerical errors is that they remember their own decisions and can therefore decide whether an error is a clerical error or a decisional error. But the fact that judges can determine that their own actions are clerical error by relying on their memories does not prevent judges from determining from the court's record that actions by others, including other judges, are also clerical error.
We do not condone the manner in which the family court proceeded here. The family court apparently failed to assure that proper notice was provided and documented before holding a status conference. Then, although the family court had earlier expressed in an email its disinclination to sign orders without discussions with all parties, it signed Steven's proposed order correcting the clerical error without hearing from Annemarie. The better course was to make certain that appropriate procedures had been followed to give Annemarie the opportunity to be heard on the issue. All that said, because the February 2016 order simply corrects a clerical error, prior notice to Annemarie was not required. And in the circumstances here, even if prior notice was required there was no miscarriage of justice and no prejudice to Annemarie; the February 2016 order simply vacates the erroneously filed Alternate Order, which no one had ever viewed as having any effect. Therefore, we shall affirm the family court's order.
The February 2016 order did not decide the discovery issues that the family court heard on June 23, 2015: those issues had already been decided, and the family court's decision was on appeal. Similarly, the February 2016 order did not impose any sanctions beyond those that had been imposed at the June 23 hearing. --------
DISPOSITION
The Order challenged in appeal A146301 is affirmed, except that the portion of the order awarding Steven sanctions of $2,500 from Annemarie under section 271 is reversed.
In appeal A148051, Annemarie's opposed request for judicial notice is granted, her opposed motion to strike is denied, and the challenged order is affirmed.
The parties shall bear their own costs on both appeals.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.