Opinion
A145100
01-09-2018
SCOTT VARENA, Plaintiff and Appellant, v. JOHN CHRISTOPHER DUBA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 City & County Super. Ct. No. CGC14542041)
This appeal of a civil discovery sanctions award arises from litigation following an allision between two charter vessels on October 5, 2013. One of the boat owners, Scott Varena, filed a complaint against the other boat owner, John Christopher Duba, alleging negligence and intentional infliction of emotional distress. Duba filed a cross-complaint alleging breach of contract and fraud (intentional deceit and negligent misrepresentation), for Varena's alleged failure to abide by an oral agreement to accept $400 "as full and final compensation for any and all damages sustained by [Varena] as a result of the October 5, 2013 allision," including for loss of tour business and hull damage. Varena filed 10 motions to compel responses and further responses to his written discovery requests. The trial court denied all 10 motions and imposed monetary sanctions of $6,331.60 against Varena and his counsel, Ilson W. New. Varena appealed. We affirm the sanctions orders and award Duba costs on appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Varena, proceeding pro se, served a total of 10 sets of written discovery on December 1, 2014 (two sets of form interrogatories, two sets of specially prepared interrogatories, four sets of requests for admission, and two sets of requests for production of documents), with five of those sets directed to Duba in his capacity as defendant and an identical five directed to Duba in his capacity as cross-complainant. Duba, on December 31, 2014, answered the five sets directed to him as defendant, but did not answer any of the discovery directed to him as cross-complainant.
Varena retained counsel on January 2, 2015. Duba supplemented his original answers on February 4, 2015. A dispute arose regarding Duba's failure to attach verifications to his supplemental responses and his failure to provide any responses to discovery directed to him as cross-complainant. Duba insisted he was not required to serve responses to identical sets of discovery requests as both defendant and cross-complainant. As a result of these disagreements, on March 9, 2015, Varena served 10 motions to compel responses and further responses to all 10 of his discovery requests. Though the superior court docket shows these motions were not filed with the court, Varena asserts—with no support in the record—that he did attempt to file the motions to compel electronically on March 9, 2015, and was never informed of their rejection. It was not, however, the unsuccessful attempt to file the motions to compel on March 9 that was at the root of the sanctions order. The real problem, which Varena does not acknowledge or address, is that he refiled his motions on March 23, after Duba had provided the verifications that Varena claimed in his motions had never been provided.
On March 18, 2015, Duba served verifications on Varena for the five sets of supplemental discovery responses he had previously provided, as part of a document production of approximately 1,100 pages. Included in the document production was a letter addressed to New, calling his attention to the newly provided verifications. Duba attempted to file an opposition to the motions to compel on March 23, 2015, but the clerk rejected the filing because Varena had not filed his motions to compel with the court, in addition to other technical deficiencies. Varena proceeded to file his 10 motions to compel on March 23, 2015, after learning that his March 9 motions were not on file.
On April 17, 2015, the court held a hearing on the discovery motions, with a judge pro tem presiding; Varena declined to stipulate to the tentative ruling by the pro tem. The trial court held another hearing on April 29, 2015, in which the court denied Varena's discovery motions and sanctioned Varena and his counsel $6,331.60. It found "that moving party Varena filed [his] discovery motions even after substantial, verified responses had been served by defendant/cross-complainant Duba, and that Mr. Varena's counsel Ilson New did not make a reasonable effort to meet and confer to resolve the perceived discovery disputes. In addition, the moving party has failed to comply with [Cal. Rules of Court, rule] 3.1345(c), which requires that for each discovery request, there must be 'a statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute.' The moving papers" did not provide an "individualized argument for further response as to each request. This failure is inadequate under [rule] 3.1145(c), and is by itself grounds for denial of the motion."
Citations to rules are to the California Rules of Court unless otherwise specified.
II. DISCUSSION
A. Appealability and Standard of Review
Because this is not a limited civil case and Varena was sanctioned for more than $5,000, he can appeal the award prior to entry of judgment under Code of Civil Procedure section 904.1, subdivision (a)(12): "An appeal, other than in a limited civil case, may be taken from any of the following: [¶] (12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000)." We review the trial court's ruling on a discovery motion for abuse of discretion. (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.)
B. The Court Is Not Responsible for Varena's Mistimed and Unnecessary Filings
Varena insists he actually did file his motions to compel by electronic filing agent before Duba served his verifications. He argues that if the March 9, 2015 motions to compel discovery had been accepted for filing with the court, his motions would have been meritorious because they would have been filed before Duba provided the verifications. Varena claims the trial court did not notify him that the motions were rejected, thereby violating rule 2.259. The court, he contends, is therefore responsible for his late filing of the motions, and thus the sanctions order was an abuse of discretion. Varena further asserts that because of the court's violation of rule 2.259, he has been unable to prove his attempt to file the motions on March 9.
Rule 2.259(b) reads: "If the clerk does not file a document because it does not comply with applicable filing requirements or because the required filing fee has not been paid, the court must promptly send notice of the rejection of the document for filing to the electronic filer. The notice must state the reasons that the document was rejected for filing."
His argument ignores rule 2.259(a)(4), which unequivocally imposes upon Varena the obligation to ascertain the status of his attempted filing: "In the absence of the court's confirmation of receipt and filing, there is no presumption that the court received and filed the document. The electronic filer is responsible for verifying that the court received and filed any document that the electronic filer submitted to the court electronically." If Varena had consulted the court's online docket promptly after the filing attempt, he would have had ample time to refile his motions to compel. Moreover, if, as he claims, Varena attempted to file motions on March 9, 2015, which, for some reason the court did not accept for filing, he should have sought to correct the error.
In addition, the meet and confer requirements necessarily imposed some responsibility on Varena to review the materials produced by Duba on March 18, 2015, before filing any motions to compel, at least sufficiently to determine whether they obviated the need to file (or refile) the motions. There is no evidence that Varena made any attempt to ascertain, between March 18 and March 23, 2015, whether the documents produced by Duba on March 18 contained the verifications that were a subject of Varena's motions to compel. This was a document production of only 1,100 pages, a volume easily skimmed for the presence or absence of the verifications in fewer than five days. Even more telling, Duba's counsel included a hand-delivered letter specifically calling New's attention to the verifications. Varena cannot shift responsibility to the court for his attorney's own dereliction.
C. The Court's Award of Sanctions Was Not an Abuse of Discretion
Conduct subject to sanctions under Code of Civil Procedure section 2023.010 includes "[e]mploying a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense" and failing to reasonably meet and confer in good faith when required. (Code Civ. Proc., § 2023.010, subds. (c) & (i).) To that end, the Civil Discovery Act authorizes sanctions in the event a party brings an unsuccessful motion to compel discovery responses or further responses. (Id. §§ 2023.010, subd. (h), 2023.030, subd. (a), 2030.290, subd. (c), 2030.300, subd. (d), 2031.300, subd. (c), 2031.310, subd. (h), 2033.290, subd. (d).)
Under the Civil Discovery Act, whenever "a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Code Civ. Proc., § 2023.030, subd. (a), italics added; see id. §§ 2030.290, subd. (c), 2030.300, subd. (d), 2031.300, subd. (c), 2031.310, subd. (h), 2033.290, subd. (d).) "An award of attorney fees . . . cannot be made unless the trial court finds that the refusal or failure to answer (or the motion) was without substantial justification. . . . If an award of expenses is made, the assessment is limited to those fees and expenses from a particular abuse of the discovery process." (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 790; see also Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403-405.) To avoid sanctions, it was therefore incumbent on Varena to show substantial justification. (Doe v. United States Swimming, Inc., supra, 200 Cal.App.4th at p. 1435; Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.) That required him to show his motions were "well grounded in both law and fact." (Doe, at p. 1434.) His motions do not meet this standard.
The trial court ordered sanctions against Varena and his counsel in several part because counsel did not make a reasonable effort to meet and confer; filed the motions after Duba provided substantial, verified responses; and failed to comply with rule 3.1345(c), by not providing individualized arguments for further response as to each discovery request. Varena contends he did attempt to meet and confer on various dates prior to the attempt to file his motions to compel on March 9, 2015. He misses the point. The meet and confer requirement must be met before a motion to compel is filed. (See Code Civ. Proc., §§ 2016.040, 2030.300, subds. (b)-(c), 2031.310, subds. (b)(2) & (c), 2033.290, subds. (b)-(c).) Before filing a motion to compel after Duba provided verified responses, it was mandatory for Varena to meet and confer. His failure to meet and confer between March 18 and March 23 resulted in the filing of 10 meritless and unnecessary motions premised on false statements that Duba had not provided verified responses, including to five duplicate sets of identical discovery requests also propounded to Duba.
Varena points to his attempts to meet and confer on "January 6, January 14th, January 28th and January 29th. On January 30th Duba's counsel allowed a thirty-day extension for the filing of discovery motions." Then "on February 22nd [all dates in 2015] Varena warned Duba of upcoming discovery motions in the absence of verifications." These meet and confer attempts, however, do not remedy the fact he made no effort to meet and confer between the time the verifications were provided and the time he filed his March 23 motions to compel.
The record indicates that after Duba served Varena with verifications on March 18, 2015, there was no effort to meet and confer regarding any outstanding discovery concerns before Varena filed the motions to compel on March 23, 2015. In fact, there is nothing in the record showing a declaration of a reasonable effort to meet and confer by Varena to resolve the issues presented by the motions to compel as is required under the Code of Civil Procedure. (See Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b), 2031.310, subd. (b)(2), 2033.290, subd. (b).) Hence, there was substantial evidence to support the trial court's finding that Varena refused to meet and confer in good faith.
Regarding the separate statement requirement under rule 3.1345(c), Varena contends that no separate statement is required when there has been no reply from opposing counsel, under rule 3.1345(b). Varena cites Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914, for the contention that no separate statements were needed because unverified responses are tantamount to no responses at all. This argument, too, is misdirected. Varena still was required to file a separate statement under rule 3.1345(c), because after March 18, 2015, Duba's responses were verified.
Rule 3.1345(c) states in part: "A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include—for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested—the following: [¶] (3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute[.]"
Concerning the motions themselves and their failure to meet rule 3.1345's requirements for separate statements, there is substantial evidence in the record to support the trial court's finding that Varena failed to provide an "individualized argument for further response as to each request" because, as the court found, "[t]he moving papers reiterated the discovery requests and responses as required, but then at the end provided an omnibus statement of legal and factual reasons for compelling further responses to the requests . . . ." (See rule 3.1345(c).) Accordingly, the trial court did not abuse its discretion in finding Varena's separate statements inadequate for being out of compliance with rule 3.1345(c), which is "by itself grounds for denial of the motion[s]." (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 [affirming the denial of a motion to compel for failing to comply with former rule 335, now 3.1345].)
D. Varena's Objections to Duba's Attachments to His Brief
Attached to Duba's respondent's brief were two documents referred to as exhibits: (1) five verifications for the supplements of the discovery responses; and (2) an email from the judge pro tem describing the background of the case and his tentative rulings on the motions to compel. Varena filed with this court his "Objections to Respondent's Designating Exhibits to Be Considered on Appeal," and we agreed to address his concerns with the merits. Varena argues that the first exhibit is already in the clerk's transcript and the second exhibit should not be included because Varena refused to stipulate to the judge pro tem and the tentative ruling was never filed in superior court. The attachment of exhibit 1 appears to comply with rule 8.204(d), since those same verifications appear in the appellate record. The second exhibit, however, does not appear as filed in the superior court's docket, and rule 8.204(d), does not authorize its inclusion. Additionally, Duba did not file any opposition to Varena's objections. Rule 8.54(c), explains, "A failure to oppose a motion may be deemed a consent to the granting of the motion." We may simply ignore portions of the brief that reference materials outside of the record. (Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 813, fn. 2; Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365, 372, fn. 1.) Thus, we have disregarded the second exhibit attached to Duba's brief in resolving this appeal.
Rule 8.204(d), states: "A party filing a brief may attach copies of exhibits or other materials in the appellate record or copies of relevant local, state, or federal regulations or rules, out-of-state statutes, or other similar citable materials that are not readily accessible. These attachments must not exceed a combined total of 10 pages, but on application the presiding justice may permit additional pages of attachments for good cause. A copy of an opinion required to be attached to the brief under rule 8.1115(c) does not count toward this 10-page limit." --------
III. DISPOSITION
We affirm the trial court's sanctions orders in the total amount of $6,331.60. Duba shall recover his costs on appeal. The clerk of this court shall send a copy of this opinion to the State Bar in compliance with Business and Professions Code section 6086.7, subdivision (a)(3), and attorney Ilson New shall report the sanctions to the State Bar pursuant to Business and Professions Code section 6068, subdivision (o)(3).
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Rivera, J.