Opinion
B164144. B165372.
7-10-2003
KENNETH ZIFFREN, Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent; MARCIA ZIFFREN, Real Party in Interest.
Kaufman, Young, Spiegel, Robinson & Kenerson LLP, Lance S. Spiegel, Scott K. Robinson, Morrison & Foerster LLP, and Seth M. Hufstedler, for Petitioner. No appearance, for Respondent. Law Offices of Bernard N. Wolf, Bernard N. Wolf, Jaffe and Clemens, Bruce A. Clemens, and David M. Luboff, for Real Party in Interest.
INTRODUCTION
This case concerns a discovery dispute that arose in the context of a marital dissolution action between Marcia and Kenneth Ziffren. The trial court imposed substantial issue, evidence, and monetary sanctions against Kenneth after finding he had willfully violated a previous discovery order. We conclude there is no substantial evidence to support the courts imposition of issue and evidence sanctions. We further conclude the evidence before the trial court cannot support the amount of the monetary sanction. Thus, we grant Kenneths petition and direct the trial court to vacate that part of its order imposing issue and evidence sanctions, and reconsider the amount of the monetary sanction.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Motion to Compel.
In June 2001, Marcia filed a petition seeking dissolution of her marriage to Kenneth. Several months later, she served Kenneth with a request for production of documents concerning Kenneths businesses, investments, and other assets, including his interest in the law firm of Ziffren, Brittenham, Branca, Fischer Gilbert-Lurie & Stiffelman LLP (the law firm). Kenneth is a member of the law firm. Including subparts, Marcias document request asked for the production of over 200 categories of documents.
Contending Kenneth had failed to produce the requested documents, Marcia moved to compel further responses. Marcia argued, among other things, that despite Kenneths written response that documents would be produced, and a subsequent "meet-and-confer" meeting, Kenneth had not produced any of the requested documents.
On March 13, 2002, the trial court orally granted Marcias motion, overruled all objections, and ordered further written responses within 20 days (except as to privilege-which required a privilege log). The trial court also ordered the documents be produced within the 20 days. Marcias counsel prepared a written order, which was issued on May 2, 2002. The order recited the trial courts ruling from the bench, and granted Marcias request for $ 8,455 as a monetary sanction.
2. The Motion for Sanctions.
On May 7, 2002, Marcia filed a motion for issue, evidence and monetary sanctions. Marcia identified nine areas where Kenneth had allegedly failed to comply with the trial courts discovery order, including failure to provide a privilege log, failure to label and organize documents, and failure to provide some of the requested documents. Kenneth opposed the motion, arguing the privilege log and many of the requested documents had already been produced.
On June 24, 2002, the trial court continued the hearing until September 23, 2002 to enable the parties to continue the meet-and-confer process and resolve their dispute regarding the production of documents. Between June 24 and September 23, Kenneth produced numerous boxes of documents. Also, the parties had meetings and exchanged correspondence in an attempt to resolve their dispute. Marcia also resolved a dispute with the law firm, which on April 19, 2002 had filed a motion for a protective order regarding the potentially privileged law firm documents Marcia had sought from Kenneth. Pursuant to a July 15, 2002 stipulation, the law firm agreed to produce certain redacted documents and make others available for inspection by Marcias representatives. Marcias representatives reviewed documents at the law firm from July 15 to July 22, but then refused to continue their review.
At the September 23 hearing (which was also held on September 25), Marcias counsel represented to the trial court that eight of the nine discovery issues identified in her sanctions motion had been substantially resolved. The remaining area of controversy that Marcias counsel identified for the trial court concerned the production of law firm "documents that relate to income, potentially to be received from work already done . . . ." Marcias counsel represented that this information was contained in the law firms "normal reports," responsible billing officer (RBO) reports, and "borrowing projections." He further argued these documents fell within the categories of documents requested and that they had been purposefully withheld. Kenneths counsel represented that the documents that existed had already been produced or made available for inspection at the law firm.
The trial court took the matter under submission without comment, and issued a minute order granting the motion on November 14, 2002. Marcias counsel prepared an order, which the court executed and filed on December 17, 2002. The trial court found Kenneth had willfully violated the trial courts previous discovery order, and imposed expansive evidence sanctions, as well as a monetary sanction of $ 225,000. The court also imposed the following issue sanction-"[Kenneth] is prohibited from supporting or opposing [Marcias] claims regarding the nature, extent, and value of the community property interest in [the law firm], and all predecessors thereto . . . ." The evidence sanctions prohibited Kenneth from introducing any evidence concerning his income from the law firm, the value of the law firm, his net worth, and 13 other issues.
Kenneth timely appealed that part of the trial courts order awarding the monetary sanction. He also filed a writ petition in this court challenging the trial courts imposition of all the discovery sanctions.
3. The Motion Modifying Spousal Support.
While the writ petition was pending, Kenneth filed a motion in the trial court to modify spousal support. Kenneth asked for a reduction in spousal support based upon recent evidence of a decrease in his income. On March 3, 2003, prior to the hearing on Kenneths motion, the trial court granted Marcias request to strike the financial evidence attached to and supporting Kenneths motion. The courts ruling was based upon the previously imposed issue and evidence sanctions. Marcias counsel prepared the final order, which the trial court executed and filed on March 10, 2003.
Kenneth filed another writ petition challenging the trial courts March 10, 2003 strike order. Kenneth argued the strike order was invalid because it was based upon the erroneous sanctions order. We stayed the hearing on the spousal support motion and consolidated both writ petitions. We also issued an alternative writ of mandate and heard oral argument.
Kenneth has filed motions to augment the record to include: (1) a September 13, 2002 declaration of Jeffrey H. Kinrich, CPA, that was not before the trial court on either the motion for sanctions or the motion to strike; (2) the trial courts March 10, 2003 strike order and the reporters transcript of that hearing; and (3) the trial courts April 8, 2003 order responding to our alternative writ by electing not to vacate its orders. Kenneth also filed a motion in case number B165372 requesting that we take judicial notice of the petition and exhibits in case number B164144. Because we have consolidated these two cases, there is no need for us to take judicial notice. We grant the motions to augment, with the exception of the September 13, 2002 declaration. (See Russi v. Bank of America (1945) 69 Cal. App. 2d 100, 102, 158 P.2d 252.)
CONTENTIONS
Kenneth raises a number of arguments challenging the order imposing discovery sanctions. His central contentions are: (1) that there was no factual basis for the severe issue and evidence sanctions because he did not withhold the requested documents; (2) that, even if sanctions were appropriate, the issue and evidence sanctions were out of proportion to the alleged discovery misuse; and (3) that the amount of the monetary sanction was arbitrary because there was no documentation supporting the amount awarded. Kenneth also contends the March 10, 2003 strike order must be vacated because it is based upon the erroneous imposition of issue and evidence sanctions.
We hold the issue and evidence sanctions must be vacated because there is no substantial evidence supporting the imposition of such drastic sanctions. Because the strike order was based upon the previously imposed issue and evidence sanctions, it too must be vacated. Finally, we hold that while the trial court acted within its discretion in granting the monetary sanction, the evidence before the trial court cannot support the amount awarded. Thus, we direct the trial court to reconsider the amount of the monetary sanction.
DISCUSSION
1.
Basis for Writ Review
"Although discovery rulings are generally not reviewed by prerogative writ [citation], they can be if an order prevents a party from having a fair opportunity to litigate his or her case [citation]." (Waicis v. Superior Court (1990) 226 Cal. App. 3d 283, 286-287, 276 Cal. Rptr. 45 (Waicis) [review of evidence sanction imposed for discovery misuse]; see Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1060-1061.)
Writ review is appropriate in this case because the trial courts orders prevent Kenneth from having a fair opportunity to litigate his case. While the portion of the trial courts order awarding the monetary sanction is appealable (see Code Civ. Proc., § 904.1, subd. (a)(12)), the facts underlying all of the discovery sanctions are the same. Because we must review those facts in deciding whether the trial court erred by imposing issue and evidence sanctions, judicial economy dictates that we consider the appropriateness of the monetary sanction at the same time.
All statutory references are to the Code of Civil Procedure, unless stated otherwise.
2. Standard of Review
A trial courts discretion in granting discovery sanctions will be upheld only if it is based upon substantial evidence. (Waicis , supra, 226 Cal. App. 3d at pp. 286-287 [factual determinations made by trial court in imposing evidence sanction reviewed for substantial evidence]; Rangel v. Graybar Electric Co. (1977) 70 Cal. App. 3d 943, 947-948, 139 Cal. Rptr. 191 [trial court abused its discretion based upon lack of substantial evidence in imposing evidence sanction]; see also Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430.) "A reviewing court must therefore first determine whether substantial evidence supports the factual basis on which the trial court acted, and then determine whether the orders made by the trial court were an abuse of discretion in light of those facts." (Id., at p. 430.)
The substantial evidence standard of review requires us to determine whether the record as a whole demonstrates substantial evidence in support of the challenged order. (Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 872-873, 197 Cal. Rptr. 925.) In order to be "substantial, the evidence must be of ponderable legal significance, reasonable in nature, credible, and of solid value. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) Evidentiary conflicts are resolved in favor of the order, as long as the evidence is sufficient to support it. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544, 138 Cal. Rptr. 705, 564 P.2d 857.)
3. The Issue and Evidence Sanctions.
If a party disobeys an order compelling the production of documents, "the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Section 2023." ( § 2031, subd. (n).) Section 2023, subdivision (b), authorizes the trial court to impose issue, evidence, or monetary sanctions for disobedience of a prior discovery order. (See § 2023, subd. (a)(7).)
While a trial court has broad discretion to impose discovery sanctions, the parties in this case agree that two facts are absolutely prerequisite to the imposition of the non-monetary sanctions: (1) there must be a failure to comply, and (2) the failure must be willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496 [terminating sanctions]; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [evidence and issue sanctions]; Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36 (Do It Urself) [evidence sanctions]; Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal. App. 3d 481, 488, 282 Cal. Rptr. 530 (Laguna Auto Body) [terminating sanctions]; In re Marriage of Economou (1990) 224 Cal. App. 3d 1466, 1475-1476, 274 Cal. Rptr. 473 (Economou) [issue sanctions].)
Such sanctions "`"should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." [Citations.] . . . [P]" The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment. [Citations.] "[Citations.]" (Do it Urself, supra, 7 Cal.App.4th at p. 35, quoting Laguna Auto Body, supra, 231 Cal. App. 3d at pp. 487-488.)
In its order imposing issue and evidence sanctions, the trial court specifically found Kenneth willfully violated the courts previous order compelling the production of documents. But nowhere in its 12-page order did the trial court identify any specific violation of the previous discovery order, which simply ordered Kenneth to produce all the categories of documents listed in Marcias request. While a discovery order imposing sanctions need not recite any findings justifying the sanctions (Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261 (Ghanooni )), there are instances when, in the interest of providing the aggrieved party with meaningful appellate review, express findings supporting the order imposing sanctions are desirable. (See Smith v. Circle P Ranch Co. (1978) 87 Cal. App. 3d 267, 278-279, 150 Cal. Rptr. 828.) This is especially true in this case where (1) Kenneth was ordered to produce over 200 categories of documents, some of which covered a 13-year time span, (2) the trial court continued the sanctions motion and allowed the parties five months to resolve their discovery dispute, and (3) the discovery issues had substantially changed from the time of the filing of the March 2002 motion for sanctions and the September 2002 hearing. Under such circumstances, trial court findings detailing the categories of documents that were not produced, or the specific manner in which the discovery process was misused, would have been helpful in reviewing whether the imposition of issue and evidence sanctions was appropriate under the circumstances.
Nonetheless, at the September 23, 2002 hearing, Marcias counsel represented to the trial court that Kenneth had withheld the production of law firm documents identifying future income to be received from clients for work already performed-the normal reports, RBO reports, and borrowing projections. We have reviewed the entire record and conclude there is no substantial evidence to support a finding that Kenneth willfully withheld these documents, or any other document showing amounts identifying future income to the firm. As we discuss, the evidence before the trial court indicated these documents either did not exist, had already been produced, or were made available to Marcias representatives during the meet-and-confer period.
The Normal Reports . The controversy over the so-called normal reports arose from a conversation between Terry M. Hargrave, one of Marcias forensic accountants, and Tara Flynn, the law firms controller, during the on-site inspection of the law firms documents. According to Hargrave and Flynns declarations, the two briefly discussed how the law firms lawyers keep track of fees due to the firm from "percentage" clients (i.e., fees that are based on a percentage of a clients income). Flynn said the attorneys use normal reports, without further describing them. Assuming normal reports were used to track percentage fees due the law firm, Marcias counsel wrote to the law firms counsel stating such documents had been withheld. In two separate letters, the law firms counsel explained that documents showing percentage fees to be received by the law firm in the future do not exist, and that the normal reports described by Flynn were the law firms account receivable reports, balance sheets, and income statements, all of which had already been produced.
Still believing normal reports described percentage fees due to the law firm and that these reports had been withheld from discovery, Marcias counsel wrote to Kenneths counsel stating such documents were being withheld. During a transcribed meet-and-confer meeting, Kenneths counsel represented the law firm had no accountings of future income stream from percentage clients, and there were no normal reports other than those already produced. Kenneths counsel repeated the representation in a subsequent letter and promised declarations from Kenneth and Flynn stating the documents did not exist.
In her declaration filed in opposition to the sanctions motion, Flynn explained, "The `normal reports to which I referred to in my conversation with Ms. Hargrave were made available to [Marcias] representatives during their review of documents at my office between July 15, 2002 and July 22, 2002. . . . [P] The [law firm] does not have a written methodology to track the receipt of fees from `percentage clients, or to segregate payments received from `multi-purpose clients (e.g., clients of the [law firm] for whom the [law firm] receives payments from such clients on various projects). The [law firm] has no systematic way of tracking receivables from its clients other than the account receivable reports, balance sheets, income statements and `RBO reports, and the individual attorneys memory."
In his declaration, Kenneth also explained, "The [law firm] does not have a written methodology to track the receipt of fees due from clients other than [the law firms] accounts receivable reports, balance sheets, income statements and RBO reports. . . . The [law firm] does not track the receipt of fees from `percentage clients or segregate payments received from `multi-purpose clients (e.g., clients of the [law firm] for whom the [law firm] receives payments from such clients on various projects), other than in the memory of the individual attorneys and in the accounts receivable reports, balance sheets, income statements, and RBO reports. [P] There are no writings of the [law firm] which exist which reflect the receivables due from the clients of the [law firm] which have not been made available for review by [Marcias] representatives."
In sum, the overwhelming evidence before the trial court showed that the term normal reports was a reference to the law firms account receivable reports, balance sheets, and income statements, all of which had been produced to Marcias representatives. There was no substantial evidence that the normal reports were a separate category of unproduced documents that Kenneth willfully withheld.
The RBO Reports & Borrowing Projections . Believing the RBO reports and certain borrowing projections contained information about law firm income potentially to be received from work already done, Marcias counsel represented to the trial court at the September 23 hearing that such reports and projections were withheld. Counsel further argued the failure to produce these documents was "smoking gun" evidence of Kenneths willful noncompliance with the trial courts discovery order. But there simply is no substantial evidence the RBO reports or borrowing projections were willfully withheld.
In an August 9, 2002 letter to Kenneths counsel, Marcias counsel asked a series of 20 detailed questions about the operation of the law firm. On August 30, 2002, Kenneths counsel voluntarily responded to each question and stated, "The RBO lawyer is aware of the fee arrangement regarding each of their clients where there are no written fee agreements. Accordingly, the most efficient way to gain an understanding of the fee arrangement with particular clients where there is no fee agreement, is to speak to the RBO lawyer for such client." The letter further stated, "`The normal reports include the account receivable reports, balance sheets and income statements. The attorneys are given monthly and bimonthly reports, in addition to the income statements and account receivable reports, along with an `RBO report. All of such reports remain available for your review at the firm."
Furthermore, in the August 9 letter, Marcias counsel asked, "What other reports [other than the normal reports] does management use in the operation of the firm?" In the same August 30 letter, Kenneths counsel responded, "The equity partners use the account receivable reports, balance sheets, income statements and RBO reports. [P] In addition to the foregoing, on an annual basis towards the beginning of each year, Mr. Ziffren and Tara Flynn prepare a borrowing projection for use in determining borrowing capacity/needs for that year. The analysis includes a generalized cost and revenue projection. The borrowing projections are available for your review at the firm."
In short, the substantial evidence before the trial court showed that Kenneths counsel informed Marcias counsel about the RBO reports and borrowing projections and made them available for inspection and copying. Such conduct not only fails to support a finding that Kenneth willfully disobeyed the trial courts discovery order by withholding the documents, but it also cannot support the imposed issue and evidence sanctions because Marcia was not deprived of the documents she sought. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 614 [discovery sanctions cannot go further than is necessary to accomplish the purpose of discovery]; Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 794, 149 Cal. Rptr. 499 [discovery sanction should not place the prevailing party in a better position she would have been if she would have obtained the discovery sought].) Because Kenneth made the requested documents available for review by Marcias representatives, imposing the issue and evidence sanctions had the effect of bestowing an unwarranted windfall. (See Economou, supra, 224 Cal.App.4th at p. 1475.)
In her return to the writ petition, Marcia argues the issue and evidence sanctions were proper because Kenneth withheld other documents, which are identified as (1) documents concerning the law firms annual retreats, and (2) monthly balance sheets used by the law firms equity partners. Just as in the case of the other documents we have discussed, there is no substantial evidence Kenneth willfully withheld these documents. The evidence before the trial court showed Kenneths counsel had made these law firm documents available for inspection and copying.
Based upon the evidence before the trial court and the severe nature of the issue and evidence sanctions, we conclude the trial court abused its discretion in imposing such sanctions.
3. The Monetary Sanction.
As noted, while we hold the trial court abused its discretion in imposing the issue and evidence sanctions, we conclude it did not similarly err by imposing the monetary sanction. But, because there is insufficient evidence to support the amount awarded, we direct the trial court to reconsider the amount.
Section 2031 provides that if a party disobeys an order to compel production of documents, the trial court may impose a monetary sanction under section 2023 in lieu of or in addition to issue and evidence sanctions. ( § 2031, subd. (n).) Section 2023 authorizes the trial court to "impose a monetary sanction ordering that one engaging in the misuse of the discovery process, . . . pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct." ( § 2023, subd. (b)(1).) A monetary sanction is mandatory "unless [the trial court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Ibid.) A request for a monetary sanction "shall be . . . accompanied by a declaration setting forth facts supporting the amount" sought. ( § 2023, subd. (c), italics added.)
Even when mandatory, a monetary sanction is limited to the actual reasonable expenses incurred that are directly attributable to the discovery misuse. (See Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1179; Ghanooni, supra, 20 Cal.App.4th at p. 262; In re Marriage of Niklas (1989) 211 Cal. App. 3d 28, 37-38, 258 Cal. Rptr. 921 (Niklas).) The evidence before the trial court must be sufficient to support the amount awarded. (Id., at p. 38.)
The trial courts March 13, 2002 order required Kenneth to produce a further written response to Marcias document request, a privilege log, and the requested documents within 20 days, i.e., by April 2, 2002. The evidence before the trial court indicated the documents were not produced until April 17, 2002. The privilege log and further documents were not provided until June 7, 2002, after Marcia had filed her motion for sanctions. Kenneth made no attempt to justify his untimeliness, and the trial court made no findings that Kenneth acted with substantial justification. Thus, we must conclude Marcias motion for sanctions was necessary to obtain full compliance with the trial courts previous discovery order.
Nevertheless, the amount of the award-$ 225,000-cannot stand. There are at least two problems with this amount. First, the declarations submitted by Marcias counsel and her forensic accountants indicate Marcia incurred, at most, $ 172,244.75, not $ 225,000. Thus, the additional $ 52,755.25 awarded is clearly arbitrary and punitive. (See Ghanooni, supra, 20 Cal.App.4th at p. 262.)
Second, the attorney and accountant declarations do not adequately describe the services provided or work performed, and disclose that Marcia sought reimbursement for expenses that were unrelated to any discovery misuse. For example, in his May 6, 2002 declaration asking for $ 28,375.50, Marcias counsel (David M. Luboff) states that attorney Bruce Clemens spent 4.75 hours "in connection with review of documents produced by [Kenneth]," as well as other unitemized tasks. Luboff further states he spent 43.50 hours reviewing a total of 40 boxes of documents Kenneth produced on March 12 and April 17, 2002, as well as other unitemized tasks. Likewise, in her May 3, 2002 declaration, Hargrave states she (and her staff) reviewed the same 40 boxes and spent many hours "in connection with the document issue," including 33.45 hours inspecting, organizing, and creating an inventory of the documents.
Hargrave also stated in her June 12, 2002 declaration that she (and her staff) reviewed 14 boxes of documents produced on June 5, 2002, and spent 76.45 hours "in connection with the document issue." In his June 17, 2002 declaration asking for a total of $ 73,032.50, Clemens said he and Luboff had spent an additional 69.50 hours "in services relating to the motion for discovery sanctions." In his August 30, 2002 declaration, Clemens asked for $ 107,405 in attorneys fees and $ 52,222.25 in forensic accounting fees from Hargrave and her staff, all incurred "in connection with efforts to obtain compliance with discovery." An additional $ 12,617.50 was requested for "forensic accounting fees with Analysis Group Economics."
The above evidence indicates the monetary sanction included the cost for the many hours Marcias representatives spent initially reviewing the documents Kenneth and the law firm produced, costs that are unrelated to the motion for sanctions. A monetary sanction under section 2023 is meant to reimburse a party for expenses incurred as a result of discovery misuse, not finance an opponents litigation costs. (See Niklas,supra , 211 Cal. App. 3d at pp. 37-38.) It is impossible for us to differentiate between the specific amount of unrelated expenses and the expenses that were directly attributable to the discovery misuse because none of the declarations supporting the sanctions motion provide the necessary facts to make that determination. (See § 2023, subd. (c).)
Accordingly, the trial court is directed to reconsider the amount of the monetary sanction by determining the amount necessary to reimburse Marcia for the reasonable expenses, including attorneys fees, she incurred that were directly attributable to the discovery misuse. In doing so, the trial court shall: (1) direct Marcia to file new declarations itemizing only those expenses incurred that are directly related to the motion for sanctions; (2) allow Kenneth to oppose the amount of the requested expenses; and (3) determine whether the requested amount is reasonable.
Finally, Marcia argues the full amount of the monetary sanction is appropriate under Family Code section 271. That section authorizes a trial court in a marital dissolution action to base a sanction of attorneys 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 . . . ." (Fam. Code, § 271, subd. (a).) But that section requires notice to the opposing party that a sanction is being sought under that section. (See Fam. Code, § 271, subd. (b).) Marcia based her motion for sanctions upon section 2023, and nowhere in its order did the trial court indicate the monetary sanction was imposed pursuant to Family Code section 271. Thus, Marcias contention has no merit.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue, directing the trial court to: (1) vacate that part of its December 17, 2002 order imposing issue and evidence sanctions; (2) vacate its order of March 10, 2003 striking Kenneths evidence supporting his motion for modification of spousal support; and (3) reconsider that part of its December 17, 2002 order imposing a monetary sanction by determining the appropriate amount to be awarded, as we have directed. Our stay of the hearing on Kenneths spousal support motion is dissolved.
The parties are to bear their own costs in these writ proceedings.
We concur: BOLAND, J., and VOGEL (MIRIAM A.), J.