Marriage of Moses and MacCallum

Filed 8/13/09 Marriage of Moses and MacCallum CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Paul Moses and his attorney Gary Kauffman (Appellants) were jointly sanctioned by the trial court in the amount of $2,000 for abuse of the discovery process. They contend that they did not have adequate notice of the sanctions hearing, that the court abused its discretion in electing to impose sanctions, and that the court should have accepted recusal under Code of Civil Procedure sections 1701.1 and 170.6 prior to the sanctions hearing. We affirm.

Background

The proceedings below began as a pro se petition filed by Moses on June 21, 2007 to dissolve a marriage lasting all of one week. Moses and respondent Melanie MacCallum were married on May 14, 2007, and separated on May 21, 2007.

Moses and MacCallum apparently had a tumultuous history before, during, and after the marriage. On July 10, 2007, MacCallum filed an application for a Domestic Violence Protective Order in the dissolution action.[1] On July 31, 2007, both parties entered into a written stipulation that all pre-trial, trial, and post-trial hearings in the dissolution action would be heard by Commissioner Beverly Wood, sitting as a Temporary Judge. On that same date, an evidentiary hearing was held before Commissioner Wood on MacCallums petition for a restraining order against Moses. MacCallum was represented by counsel and Moses was represented by Kauffman and attorney Paul Burglin. MacCallum testified to incidents of physical and verbal abuse by Moses including an incident occurring on July 4, 2007, resulting in Mosess arrest, and was extensively cross-examined by Kauffman. The court found MacCallums testimony credible and issued a restraining order against Moses.

Felony criminal charges were filed against Moses on August 15, 2007, as a result of the July 4, 2007 arrest (Marin County Case No. SC154388). On September 27, 2007, while the criminal charges were pending, Moses, represented by Kauffman, attempted to obtain his own restraining order against MacCallum. This application was summarily denied by written order issued by Commissioner Wood on September 30, 2007, finding no credible evidence of recent acts of violence or threats of violence sufficient to issue a restraining order.[2] When rebuffed, Kauffman attempted to refile the same petition as a civil injunction, but this effort was also denied. On September 24, 2007, Kauffman issued a subpoena duces tecum to MacCallum in the pending criminal case demanding that she produce personal medical, employment, and telephone records at the preliminary hearing.[3] MacCallum retained attorney Michael Biggs to represent her, and Biggs filed objections and a motion to quash the subpoena on her behalf. Kauffman also noticed her deposition for October 11, 2007, but later agreed to cancel the deposition after discussions with Biggs. In the interim, a judgment of dissolution was entered at Mosess request on October 18, 2007, effective December 22, 2007.

On November 19, 2007, Kauffman issued a second subpoena duces tecum to MacCallum in connection with Mosess criminal case, demanding that she produce a variety of items at a November 26, 2007 hearing, including an extensive and graphic list of sex toys, MacCallums personal medical records, and her telephone records. On December 5, 2007, Kauffman noticed a video-taped deposition of MacCallum, under the family law case number, to take place on December 20, 2007, two days before the dissolution judgment was to be effective and final. Kauffman filed the deposition notice as Attorney for Plaintiff Paul Moses, Who Appears in Propria Persona. He did not notify Biggs.

On December 18, 2007, Biggs filed an ex parte motion for a protective order to prevent the deposition. The motion also requested sanctions against both Moses and Kauffman under Code of Civil Procedure sections 2025.420 and 2023.030[4] for abuse of the discovery process. Kauffman then cancelled the deposition, but both Kauffman and Biggs appeared before Commissioner Wood on the ex parte motion on December 19, 2007. Commissioner Wood was advised of Kauffmans earlier subpoena attempts in the criminal case and directly asked Kauffman the purpose of his deposition notice, in light of the fact that there appeared to be no unresolved issues in the dissolution proceeding. He asserted that his purpose was to determine the disposition of a ring that had been, a $2,600 ring, that was the simple purpose. The court expressed its concern that the actual intent was to harass MacCallum, and that it was considering an award of sanctions, including sanctions under sections 128.5 and 128.7. Over Kauffmans objections, the matter was calendared for hearing on January 15, 2008, to consider the sanctions issues.

Contrary to Kauffmans contention, the court did not set the hearing solely for consideration of sanctions pursuant to sections 128.5 and 128.7. Commissioner Wood advised Kauffman that she would consider both sanctions pursuant to those sections and the then pending request for fees and sanctions at the noticed hearing. Biggs was told that additional pleadings would not be required, and Kauffman was given the opportunity to submit a response. Commissioner Wood confirmed the purpose of the hearing at the commencement of proceedings on January 15, 2008, when she stated, after agreeing that sections 128.5 and 128.7 were inapplicable, So we therefore are looking at whether sanctions are appropriate under the discovery statute originally posed by Mr. Biggs, CCP 2025.420.

Kauffmans initial response when the hearing was set was to file, on December 31, 2007, a motion to disqualify Commissioner Wood under both sections 170.1 and 170.6. By order dated January 2, 2008, Commissioner Wood struck the section 170.1 challenge on the basis that it was both untimely and disclosed no legal grounds for disqualification. ( 170.4, subd. (b).)[5] The challenge pursuant to section 170.6 was denied as untimely since the matter had been assigned to Commissioner Wood for all purposes on June 21, 2007, and further on the grounds that Commissioner Wood had already conducted evidentiary hearings in the case. ( 170.6, subd. (a)(2).) Kauffman then filed a Petition for Writ of Mandate in this court, seeking review of these orders and a stay of the hearing. (Moses v. Superior Court, Appeal No. A120263.) The petition was denied by order of January 14, 2008.

Kauffman, through counsel David Picchi, filed a responsive pleading on January 2, 2008. For the first time, in his declaration supporting his disqualification motions, and then again in his opposition to the sanctions request, Kauffman asserted that the purpose of deposing MacCallum was to discover evidence of violence by MacCallum to support a re-application by Moses for a TRO/OSC under the Domestic Violence Prevention Act (DVPA) (Fam. Code, 6200 et seq.).[6]

At the hearing on January 15, 2008, both Moses and Kauffman appeared, with attorney Picchi. Counsel argued that the deposition notice was proper, contending that remaining property issues may exist in the dissolution proceeding, and that discovery was necessary for Mosess anticipated DVPA re-application. Commissioner Wood noted Kauffmans previous representation to the court that the purpose of the deposition was regarding a ring, and observed that his claims regarding domestic violence predated the hearing on MacCallums application for a restraining order, and were made only after criminal charges were filed against him. Commissioner Wood found the deposition notice to be an attempt to intimidate MacCallum as a witness in the pending criminal case, and that the contention that domestic violence concerns necessitated discovery was backfill. Attorney Biggs was sworn and testified as to the basis for his fee claim. The court awarded sanctions in the amount of $2,000 jointly against Moses and Kauffman.

On March 14, 2008, a Notice of Appeal was filed, purporting to appeal from the January 15, 2008 order granting respondents motion for a protective order against respondents deposition and imposing sanctions in the amount of $2,000 on attorney for appellant Gary Kauffman and upon Appellant. By order of June 24, 2009, we directed the parties to submit additional briefs addressed to the appealability of the trial court orders in light of the fact that protective orders are not appealable (Bartschi v. Chico Community Memorial Hospital (1982) 137 Cal.App.3d 502, 507) and sanctions orders less than $5,000 are reviewable only by petition for extraordinary writ, or on appeal from a final judgment in the underlying action ( 904.1, subds. (a)(12) & (b)).

Discussion

I. Appealability

The Notice of Appeal filed by Appellants purports, on its face, to seek review of non-appealable orders. In a supplemental brief, submitted in response to our order, they reference California Rules of Court, rule 8.204 (a)(2)(B), but failed to comply with it in the opening brief. That rule requires that an appellants opening brief must [s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable. . . . (Ibid.)

Appellants now assert that they are not appealing from a protective order after all, because as they correctly observe, the trial court issued no protective order. Section 904.1, subdivision (b), provides that sanction orders or judgments of $5,000 or less against a party or an attorney for a party are reviewable on appeal only after entry of final judgment in the main action. Appellants contend that a judgment was entered in the underlying dissolution action which became final as of December 22, 2007, and that they may therefore appeal under the provisions of section 904.1, subdivision (b), ignoring the fact that a notice of an appeal from that judgment, filed on March 14, 2008, would be untimely. Appellants also fail to acknowledge that they took a directly contrary position before the trial court, asserting that proceedings in the dissolution action were not yet final due to remaining unresolved property issues.

Appellants finally contend that this is an appeal from an order after judgment, appealable under section 904.1, subdivision (a)(2). Although not cited by Appellants, and despite their inconsistent position below, Family Code section 2337 permits separate appeal under some circumstances from a marital status judgment.[7] (In re Marriage of Fink (1976) 54 Cal.App.3d 357, 360366.) To avoid further waste of judicial resources we will assume, without deciding, appealability under section 904.1, subdivision (a)(2), and proceed to the merits of Appellants claims, or lack thereof.

II. Appellants Contentions

Appellants take a scattershot approach in challenging the sanctions order, asserting a variety of grounds, all of which miss the mark. They allege: 1) violation of due process in lack of adequate notice of the basis for award of sanctions; 2) lack of jurisdiction by the trial court in that a default was entered against MacCallum, and that she therefore lacked standing to contest discovery by Moses; 3) inadequate notice of a hearing to determine the amount of the sanctions; 4) denial of an opportunity to present evidence and witnesses to justify the deposition notice; and 5) lack of evidentiary support for the courts sanctions order. Appellants further contend that the disqualification motions filed against Commissioner Wood were improperly denied.

III. The Disqualification Motions are not Appealable

We first address the judicial disqualification issues Appellants attempted to raise. Litigants challenging denial of a judicial disqualification motion, whether a peremptory challenge under section 170.6 or a challenge for cause, are required to seek mandate as provided in section 170.3, subdivision (d).[8] This expedited procedure is the exclusive means for reviewing an unsuccessful challenge. (People v. Webb (1993) 6 Cal.4th 494, 522523; People v. Hull (1991) 1 Cal.4th 266, 268.) As previously noted, Kauffmans Petition for Writ of Mandate in this court was denied. (Moses v. Superior Court, Appeal No. A120263, Order, January 14, 2008.) Those issues cannot be relitigated in this appeal. (County of San Diego v. State of California (1997) 15 Cal.4th 68, 110.) Appellants now concede that they may not appeal these orders.

IV. Appellants Received Adequate Notice of the Sanctions Hearing

Appellants assert that the court set the January 15, 2008 hearing solely for consideration of sanctions pursuant to sections 128.5 and 128.7, and solely to consider sanctions against Kauffman, not Moses. They contend that they were denied due process when the court awarded sanctions under the discovery statutes against them both. They misstate the record.

As the court commented to counsel during the proceedings on December 19, 2007, No, Mr. Kauffman, you havent listened to me. Commissioner Wood advised Kauffman that she would consider both sanctions pursuant sections 128.5 and 128.7 and would also consider at that hearing the pending request by MacCallum for fees and sanctions against both Moses and Kauffman. Kauffman was given the opportunity to submit a responsive pleading and did so. Commissioner Wood confirmed the purpose of the hearing at the commencement of proceedings on January 15, 2008 when she stated, after agreeing that sections 128.5 and 128.7 were inapplicable, So we therefore are looking at whether sanctions are appropriate under the discovery statute originally posed by Mr. Biggs, CCP 2025.420.

Further, [i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective. (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) The issue is waived even when there is objection to the notice in opposition papers if a party appears at the hearing and opposes the motion on the merits without making any request for a continuance or demonstrating prejudice. (Carlton v. Quint (2000) 77 Cal.App.4th 690.) Appellants appeared at the hearing in the trial court, made no request for continuance, and argued the motion on the merits. No prejudice is claimed or shown. Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1289 [citing Lever v. Garoogian (1974) 41 Cal.App.3d 37, 40; 475].)

V. Denial of an Evidentiary Hearing

Appellants contend that they were entitled to an evidentiary hearing on the sanctions motion. They are wrong.

Appellants only inquiry regarding presentation of live testimony was Kauffmans question to the court on December 19, 2007, regarding the January 15 hearing, asking So I assume its evidentiary. I will have witnesses here, et cetera. The court responded No, its not. Its on the law and motion calendar, sir. No request was made for presentation of live testimony in appellants opposition pleadings and no request was made by counsel at the time of the hearing to present any witnesses.

Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown. (Cal. Rules of Court, rule 3.1306(a).) A party seeking permission to introduce oral evidence . . . must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. (Cal. Rules of Court, rule 3.1306(b).) Appellants made no such request.

VI. The Sanctions Order

The Discovery Act provides for application for protective orders in response to abusive deposition notices ( 2025.420, subd. (a)), and further provides that [t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. ( 2025.420, subd. (d), italics added.)[9] We review the trial courts ruling imposing discovery sanctions under the abuse of discretion standard, resolving all evidentiary conflicts in favor of that ruling. (Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350.)

The court found that Kauffman exhibited a pattern of intimidating and harassing Ms. MacCallum, that he had been less than candid with the Court in his various representations, and that he acted without substantial justification. We have no difficulty determining that the findings made are amply supported by the record, and no abuse of discretion is shown.

Appellants tactics below also raise at least the suspicion that this appeal is prosecuted for the purpose of further harassing the respondent or to delay the effect of the adverse order, meriting further sanctions. If the sanction provisions of the Discovery Act are to be a credible deterrent to discovery abuses, they must be applied to prevent a losing party from accomplishing indirectly that which it is expressly prohibited from doing directlyforcing a party who deals fairly to pay for the abusive tactics of one who does not. [Citation.] (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1441.) We cannot say, however, that this appeal was completely without merit, and we therefore decline to take further action.[10] (Id. at pp. 14421443.)

DISPOSITION

The order is affirmed. Respondent to recover costs on appeal.

_________________________

Bruiniers, J.

We concur:

_________________________

Jones, P. J.

_________________________

Needham, J.

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[1] The Rules of Court of the Marin County Superior Court apparently require that any application for restraining orders between parties to a pending dissolution action be filed in that proceeding. (Super. Ct. Marin County, Local Rules, rule 6.8.)

[2] The propriety of this ruling is not before us, and we need not decide whether, in a case where at least some of the allegations had previously been presented to the same judicial officer in a prior proceeding, a further formal hearing was required before issuing this order. (See Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)

[3] Following the preliminary hearing some felony charges were dismissed, but a criminal information charging Moses with three felonies and two misdemeanors was filed on December 13, 2007, and trial was set for February 4, 2008.

[4] All further code references are to the Code of Civil Procedure unless otherwise indicated.

[5] . . . if a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against whom it was filed may order it stricken. The order erroneously references CCP 170.4(a)(6)(b).

[6] In addressing the issues presented in this appeal we assume, without deciding, that the Civil Discovery Act would apply to a DVPA proceeding as a special proceeding of a civil nature. ( 2016.020, subd. (a); see People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 988.)

[7] Family Code section 2337 anticipates, however, that a party will first seek bifurcation of marital status from other issues, and that adjudication of remaining issues will be reserved. Moses did not seek bifurcation or reservation of issues when submitting his default judgment, claiming that there were no other issues.

[8] The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought . . . within 10 days of notice to the parties of the decision and only by the parties to the proceeding. (170.3, subd. (d).)

[9] See also section 2023.030, subdivision (a), which provides that [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. . . . If 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.

[10] We also have not given Appellants notice of potential sanctions under California Rules of Court, rule 8.276.