Opinion
G060347
12-09-2022
In re Marriage of XINGYA LOU and XIAOYU MA. XINGYA LOU, Respondent, v. XIAOYU MA, Appellant.
Jack W. Chao for Appellant. Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 19D004051, John L. Flynn, Judge.
Jack W. Chao for Appellant.
Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Respondent.
OPINION
BEDSWORTH, ACTING P. J.
INTRODUCTION
This is an appeal from an order imposing discovery sanctions of more than $8,000 on appellant, Xiaoyu Ma, and his counsel, Jack Chao, in a dissolution action, one identified by the family court as the "most acrimonious" matter on its docket. Ma moved to compel the deposition of his wife, Xingya Lou, a motion the family court found improper for several reasons. Having previously warned counsel not to multiply everyone's tasks by filing groundless pleadings, the court imposed sanctions for misuse of the discovery process.
We affirm the order imposing sanctions. Although the court was mistaken about one reason for sanctioning appellant and his counsel, the other grounds are supported by substantial evidence.
FACTS
Lou and Ma had two minor children, both under the age of 10 when Lou filed for divorce on May 17, 2019. They filed requests for domestic violence restraining orders against each other: Lou's on December 16, 2019, and Ma's on December 31, 2019. In addition, Lou filed a request for order (RFO), on November 13, 2019, seeking the return of the children's passports. The trial of the domestic violence orders and the RFO was continued multiple times.
The family court issued a temporary emergency order on December 16, 2019, forbidding either parent from removing the children from Los Angeles County or Orange County. In addition, Ma was ordered to return the older child to Orange County by December 30.
Lou filed another RFO on June 15, 2020. In essence, it was a series of motions to compel discovery and a request for discovery sanctions. She asked that Ma be ordered to appear at a deposition, to produce documents, and to respond to interrogatories. She also asked to have a set of requests for admission deemed admitted, and she asked for discovery sanctions under the various relevant sections of the Code of Civil Procedure.
Trial commenced in September 2020. It was continued to November 3, 2020. After three more days of testimony, the court declared a mistrial because it could not be completed in a timely manner. The court set a new trial setting conference for January 2021, "in hopes of [there] being a long cause setting available at that time."
A trial setting conference was held on January 14, 2021. The issues to be tried as of that date were (1) the two domestic violence restraining orders, (2) Lou's RFO of November 13, 2019, (3) Lou's RFO of July 23, 2020, and (4) the discovery RFO of June 15, 2020.
The July 2020 RFO is not included in the record. We infer from briefs filed in connection with the January 2021 trial setting conference that the RFO involved custody and a report from Orange County Social Services Agency regarding Ma's abuse of the children.
On January 14, 2021, the same day as a trial setting conference, Ma filed an ex parte application of over 100 pages. He asked the family court to strike Lou's request for domestic violence restraining order and her RFO of November 13, 2019, on the ground they were based on "false accusations."
During the trial setting conference, the court asked Ma's counsel, Jack Chao, "What was your intent in filing that sort of ex parte motion that came across my desk this morning?" "[I]s it your intention to have that matter heard today to be able to dismiss that DV and all those other - all those other aspects you suggested in your papers?" "It didn't fit any procedural understandings the Court understood. [¶] I did my best to try to ascertain what was going on here. As best I could determine . . . it was some sort of motion in limine that should be heard at the beginning of the trial just by way of oral motion."
The court then said it had denied the ex parte application. "My concern is that I didn't understand why, on the day of a trial setting conference, I received a motion that I did not receive any procedural or structural or factual basis, suggesting that just because one side sees - disagrees with the other side that the Court should strike it, brought sort of in the form of a motion to strike to be heard on the day in which the ex parte was served, causing not only the Court to have to review the document extensively - because it wasn't a little thing - but also having to review the opposition, which obviously took time and effort. [¶] . . . [¶] . . . I don't want to see any more of this type of stuff. This is just not appropriate. You are fully entitled to follow whatever legal principles or theories or approaches you think are available to you under the statutory law, under the code and under the case law. So you can do whatever you think is appropriate that way. [¶] But if you make a mistake - and this goes for everybody. If you make a mistake of a magnitude and you call it wrong, then it is - it does set your client and yourself up for serious sanctions, all of which have now been triggered on this table - because this motion this morning was just plain wrong." "Let's try to cooperate and not cause anybody any work - because at the rate we're going, we're going to have a huge hearing on sanctions on the backside, based on the conduct of this proceeding to this date. And I'd prefer that maybe we can try to avoid that."
The opposition is not included in the record.
The court reset trial for May 24 through 27, 2021. Trial was continued again to August 2021.
On March 8, 2021, Ma filed his own RFO to compel Lou to attend a deposition. The hearing was set for April 16, 2021.
Lou opposed the motion on several grounds. She noted that Ma had twice failed to attend his deposition, despite an April 28, 2020, stipulation and order to do so. Ma's counsel had refused to meet and confer before filing the motion to compel Lou's deposition motion as required by Code of Civil Procedure section 2025.450, subdivision (b)(2). In addition, the notice of the deposition Ma was seeking to compel had been withdrawn, so there was no basis for a motion to compel.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Ma filed his reply to Lou's opposition on April 8, 2021.
The court heard Ma's RFO on April 16, 2021. Ma had not timely filed a reply to Lou's opposition, and the court declined to consider it. The court's main reason for denying the motion, however, was that discovery had closed 30 days before the initial trial date in 2020 (§ 2024.020), and Ma had not moved to reopen it. (§ 2024.050.) Therefore the RFO was completely improper. And - after the court's prior warnings -sanctionable. The court stated, "The representations and arguments by [Lou's counsel] are correct in all aspects. There is no discovery motion properly before the Court this day. And [Lou's counsel] has been obligated to respond to a motion which he should never have had to respond to in any way, shape or form. [¶] [Lou's counsel] by his response - just by his response, would be entitled to sanctions for the improper utilization of the civil procedure codes by Mr. Chao and his client....[¶] . . . [¶] The Court also at this time, pursuant to my prior orders and warnings to Mr. Chao and his client, will be setting the matter for concurrently heard motions under [sections] 128.5 and 128.7, for gross abuse of the procedures and processes of this Court, in contravention of prior orders of this Court, that they - that the procedures not be misused and that the Court's time not be and [Lou's] time - that their time not be inappropriately injured." The court denied the motion to compel and set a hearing on sanctions, not only pursuant to sections 128.5 and 128.7 but also pursuant to the discovery statutes and Family Code section 271.
The court did not explicitly deny the motion. Nevertheless its ruling made it clear that the motion was either denied or dismissed.
We consider Lou's argument in her respondent's brief that the discovery cut-off is not relevant to be somewhat disingenuous, especially after her trial counsel so vigorously argued at the hearing that discovery was closed. The trial court was clearly focused on its erroneous belief that discovery had closed as of September 2020.
As ordered by the court, Lou served a notice for the sanctions hearing on April 30, 2021. The date of the hearing was May 21, 2021. The notice listed the Code of Civil Procedure sections and the Family Code section under which the sanctions award would be considered. On May 10, Lou filed a memorandum of points and authorities supporting the request for sanctions under all the code sections cited by the court on April 16.
On May 13, Ma filed a memorandum of points and authorities and two declarations, one from himself and one from his counsel, in opposition to the motions for sanctions. To the extent that it addressed discovery sanctions, the opposition argued only that discovery was not closed and that the motion to compel Lou's deposition was still pending. Counsel's declaration mainly concentrated on his argument that discovery had not closed as of the time he filed his motion to compel. The rest of the declaration was taken up with assertions having nothing to do with discovery sanctions, e.g., repetition of the same perjury and TRO violation charges against Lou that had occupied prior pleadings. Ma's declaration mainly concerned his financial situation.
In anticipation of the hearing on sanctions, Lou's counsel filed an additional declaration giving the grounds for sanctions as well as the different amounts that the various misuses of the discovery process had cost his client. Ma filed his reply on May 14, 2021. This was a one-page document that addressed sanctions under sections 128.5 and 128.7 and under Family Code section 271, but did not refer at all to sanctions under the discovery statutes.
The court heard Lou's sanctions request on May 21 and May 24, 2021. At the first session, the court determined that both the discovery notice and the notice on the sanctions motion were adequate and that Ma's opposition was untimely. It also dismissed the court-noticed sanctions under sections 128.5 and 128.7. At the second session, the court ordered the sanctions to be assessed under Family Code section 271 to be continued to the conclusion of trial.
Thus the only issue still before the court in May 2021 was the discovery sanctions to be assessed under sections 2023.010, 2023.020, 2023.030, and 2025.450.The court awarded sanctions against Ma and his counsel of $8,870 for discovery misuse.
Section 2030.010 lists various activities that qualify as misuse of the discovery process. Section 2023.020 requires the court to impose a monetary sanction for failing to meet and confer. Section 2023.030 states the various types of sanctions - monetary, issue, evidence, terminating - that the court may impose for misuse of the discovery process. Section 2025.450 allows a party to move for an order compelling attendance at a deposition after a failure to appear.
DISCUSSION
Ma has identified the following issues as errors requiring reversal of the sanctions award. First, discovery was not closed as of the time he filed his motion to compel Lou's deposition. Second, the court erred in finding Ma's opposition to the motion for discovery sanctions untimely. Finally, he argues that Lou's opposition to the motion to compel lacks merit and his motion to compel was meritorious.
In addition to the arguments about legal errors, Ma's attorney, Jack Chao, mounted a full-scale attack on the integrity of the trial judge, the Honorable John Flynn, in his appellate briefs, accusing him of being biased in Lou's favor. For example, Chao accused Judge Flynn of removing a document from the court file, an accusation that, if proven, could lead to jail time under Government Code sections 6200 or 6201. Chao accused Judge Flynn of declaring a mistrial in November 2020 in order to assist Lou and of refusing to recuse himself for the same reason. These were not the only instances of judicial bias Chao asserted against Judge Flynn. Unfounded accusations such as these against judicial officers, when made in a document filed in this court, can be contemptuous. (See, e.g., In re Mahoney (2021) 65 Cal.App.5th 376; In re Koven (2005) 135 Cal.App.4th 262, 271.) Chao narrowly avoided an order to show cause re contempt as a result of his conduct.
The order of May 24, 2021, imposed sanctions under sections of the Code of Civil Procedure that identify and regulate misuse of the discovery process. We review a trial court's ruling on discovery sanctions for abuse of discretion. (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435 (Doe).) Evidentiary conflicts are resolved in favor of the order. (Padron v. Watchtower Bible &Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1260.)
The sanctions for misuse of discovery process rested on several grounds. Ma does not address most of these grounds.
In the declaration filed pursuant to the court's order, Lou's counsel stated that Ma's counsel had failed to meet and confer before filing the motion to compel Lou's deposition. Section 2025.450, subdivision (b)(2), requires a motion to compel a deposition to include a meet-and-confer declaration. No such declaration accompanied Ma's motion to compel Lou's deposition.
Section 2023.020 requires the imposition of a monetary sanction for failing to meet and confer, regardless of the outcome of a discovery motion. Ma's briefing does not address this aspect of the sanctions award, and we deem the issue waived. (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 554-555.)
Section 2023.020 provides, "Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct."
Lou also objected to the motion to compel her deposition on the ground that Ma had failed to appear for his deposition on two previous occasions, despite an order from the court that he do so. Failing to respond to an authorized method of discovery is a misuse of discovery process. (§ 2023.010, subd. (d).) Having refused to be deposed himself, Ma was obviously trying to gain an advantage by deposing Lou first. Ma addresses this issue only by arguing that failing to show up for a deposition is not unclean hands. He does not explain why it is not discovery misuse.
Finally, Lou's counsel declared under penalty of perjury that Ma had withdrawn the deposition notice on the day before the deposition was scheduled to take place, after learning that Lou was preparing an ex parte application for a protective order. So Lou had not "fail[ed] to appear" at a noticed deposition, the only basis for a motion to compel. (§ 2025.450, subd. (a).) Ma also fails to address this reason for sanctions.
The ways in which Ma's RFO to compel Lou's deposition constitute misuse of the discovery process are myriad. The RFO "[u]s[ed] a discovery method in a manner that does not comply with its specified procedures" (§ 2023.010, subd. (b));
"[e]mploy[ed] a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense" (id., subd. (c)); "[made] . . . unsuccessfully and without substantial justification, a motion to compel . . . discovery" (id., subd. (h)); and "[f]ail[ed] to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made." (Id., subd. (i).) The ways to misuse the discovery process are not limited to those listed in section 2023.010 ["[m]isuses of the discovery process include, but are not limited to, the following"]. Ma's refusal to be deposed, in defiance of a court order, while attempting to depose Lou would certainly qualify as an additional misuse.
As it happens, discovery was not closed as of March 2021. A mistrial, unlike a continuation or a postponement of the trial date, reopens discovery. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 250-251; Hirano v. Hirano (2007) 158 Cal.App.4th 1, 6-7.) After the mistrial, trial was reset for May 2021. That is the new "initial trial date," from which discovery closure is calculated. Ma is right about that.
The court, however, based its discovery sanctions award on "all aspects" of Lou's opposition. "All aspects" would encompass the withdrawal of the deposition notice, the failure to meet and confer, and the effort to gain an unfair advantage by refusing to attend Ma's own deposition.
Ma also argues that the court erred by failing to consider his opposition to the imposition of sanctions. Section 1005 requires opposition papers to be served and filed nine days before the hearing. (§ 1005, subd. (b).) May 21, 2021, the hearing date, was a Friday. To serve and file his papers on time, Ma had to serve and file them no later than Monday, May 10. He did not file them until May 13. They were untimely.
As provided by section 12, the first day of a prescribed period is excluded and the last day is included.
In addition, Ma fails to address the issue of prejudice. Even if a court was mistaken, we cannot reverse a trial court's order unless the appellant can demonstrate that the error prejudiced him or her, that is, that without the error, the outcome would have been more favorable. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525 1548-1549.) Ma's opposition hardly touched on discovery sanctions and did not address any of the specific misuses of discovery process referred to in Lou's motion. We cannot distill error from the wide-ranging amalgam of complaints in Ma's briefing.
Ma also makes a rather incoherent claim that the notice of the sanction hearing was defective. He cites section 2023.040, which provides, "A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought."
But the discovery sanctions hearing in this case was not set pursuant to a "request." Lou's opposition to Ma's motion to compel Lou's deposition did not include a motion for discovery sanctions. The court set the hearing on its own motion and on different grounds from the grounds asserted in Lou's original RFO motion to compel of June 2020. (See Peat, Marwick, Mitchell &Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287 [court's inherent power to control and prevent abuses of process].) As both Ma and his counsel were present when the court did this, Ma can hardly assert that he was not aware of the grounds and the persons involved. And once again, Ma has failed to address prejudice. He has failed to explain how a notice pursuant to section 2023.040 would have altered his behavior and improved the outcome.
Lou's sole request for sanctions in her opposition to the motion to compel her deposition was for sanctions under Family Code section 271.
Ma's last discovery issue is twofold: his motion to compel Lou's deposition was justified, and Lou's opposition to his motion to compel her deposition lacks merit. We cannot review either issue. The court's ruling on a discovery matter, other than sanctions of a certain amount, is not an appealable order. (Doe, supra, 200 Cal.App.4th at pp. 1432-1433.) The order denying the motion to compel is therefore not before us. We can review only the merits of the order awarding sanctions against Ma and his counsel.
We have already discussed the various misuses of the discovery process that the court found to be accurately described "in all aspects." The court believed that (1) Ma's counsel had not met and conferred before filing his motion to compel Lou's deposition, (2) the deposition notice had been withdrawn before the motion was filed, and (3) Ma had refused to sit for previously noticed depositions and was nevertheless trying to compel Lou to sit for hers. Regardless of the merits of Ma's motion to compel, the court could impose discovery sanctions for his refusal to follow the procedures laid down by the discovery statutes for making such a motion. He cannot say he was not warned.
DISPOSITION
The sanctions order is affirmed. The matter is remanded to allow the trial court to decide whether its error regarding discovery being closed affected its computation of the amount of sanctions. If it did, the court need only order a new amount. If it did not, no further action is required. Respondent Lou is to recover her costs on appeal.
WE CONCUR: MOORE, J., MARKS, J. [*]
[*]Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.