nSight v. Oracle

Filed 5/14/08 nSight v. Oracle CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. Introduction

What began as a simple effort to collect moneys due and owing under computer software contracts burgeoned into an acrimonious dispute in both state and federal court. Plaintiff nSight, Inc. eventually got its money from Oracle USA, Inc. (successor in interest to PeopleSoft, Inc.), but by then matters were spiraling out of control. nSight and its attorney were repeatedly assessed monetary sanctions for failure to provide discovery. Finally, although the trial court declined to impose a terminating sanction, it did impose the lesser sanction of deeming a large number of factual issues to be admitted by nSight. With no material issues of fact remaining, when the case was sent to trial the court granted Oracles motion for judgment on the pleadings. After entering a net judgment of slightly less than $12,000 for nSight, the trial court awarded nSight slightly more than $30,000 in contractual attorney fees. Prior to entry of the judgment, nSight filed a notice of appeal from three of the sanction orders.

As we explain, only the final judgment is properly before us. nSights appeal from the judgment permits review of mostbut not allof the sanction orders. We conclude that none of the intermediate sanction orders can be reversed as an abuse of the trial courts discretion to adopt sanctions for a partys failure to provide discovery. We affirm the judgment, and dismiss a purported appeal from a nonappealable order.

II. Background

A concise summary of the origins of the dispute between nSight and Oracle is set out in Oracles trial brief: Plaintiff nSight, Inc. was a software implementation consultant that helped companies install and configure enterprise software provided by PeopleSoft. In some cases, companies engaged PeopleSoft as the lead implementation provider, and PeopleSoft subcontracted portions of the work to nSight. [] nSight brought this action to recover on invoices for work it allegedly performed as a subcontractor to PeopleSoft on projects for three PeopleSoft customers: Analogic Corporation, Radiant Systems, Inc., and East Bay MUD. nSight sought a total recovery of $61,462.40, comprised of $26,117.79 for the Analogic project, $34,313.74 for the Radiant Systems project, and $1,030.87 for the East Bay MUD project.^[1] In addition to PeopleSoft, nSight named each of PeopleSofts customers as defendants.

This litigation began in May 2002, when nSight filed a complaint against Oracle for breach of contract or unjust enrichment. By September 2003, nSight had filed its third amended complaint against Oracle and the three customers. This pleading had causes of action for breach of contract; restitution; fraud; violation of Cal. Bus. & Prof. Code,  17200 (hereafter the section 17200 count); and; a common count for the value of goods and services received. nSight sought $34,313.74 for the Radiant project; $26,117.79 for the Analogic project; and $1,030.87 for the East Bay MUD project. For the fraud and the section 17200 counts, nSight prayed for punitive damages from Oracle.

On June 21, 2006, Judge Winifred Smith ruled on three pending discovery-related motions. Two of the motions sought to quash a subpoena duces tecum generated by nSight. Judge Smith granted this relief, and Oracles request for sanctions. The only record of the ruling is the minute order, which states that nSight and . . . counsel Naren Chaganti, are ordered to pay $690 as reasonable sanctions to . . . Oracle and its counsel, on the ground that nSights position was not substantially justified. The third motion was Oracles motion to compel further responses from nSight. Judge Smith granted this motion, and ordered nSight and Mr. Chaganti to pay additional sanctions of $1,240.

Oracle deemed nSights responses so inadequate that, on July 7, 2006, two weeks before the scheduled trial date, Oracle filed a motion for terminating or preclusive sanctions. As Oracle explained in its moving papers, if termination was deemed too severe a sanction, nSight asked that 18 following facts be taken as established against Plaintiff in the action.^[2]

Judge Smith heard argument on Oracles motion at an unreported hearing conducted on July 20. Judge Smiths ruling, as stated in the minutes, is sufficiently important that it warrants quotation at length:

The motion by Defendant . . . Oracle USA, Inc. for terminating sanctions is DENIED. Sanctions for failure to respond to discovery should not place the moving party in a better position that it would have enjoyed if the opposing party had responded to the discovery.

The motion, in the alternative, for issue sanctions is GRANTED. The following facts are taken as established in this action:

1. Radiant Systems, Inc. paid Plaintiff . . . $6,000 in settlement of this action.

2. Analogic Corporation paid Plaintiff $12,500 in settlement of this action.

3. nSight, Inc. invoices Nos. L3373-IN and L3394-IN have been paid in full by PeopleSoft, Inc.

4. nSight, Inc. invoices Nos. L3373-IN and L3394-IN include all of the services provided by nSight, Inc. to PeopleSoft, Inc. for the benefit of Radiant Systems, Inc.

5. nSight, Inc. invoices [N]os. L3373-IN and L3394-IN represent the entire amount billed by nSight, Inc. to PeopleSoft, Inc. for services rendered for the benefit of Radiant Systems, Inc.

6. The original of PeopleSoft check No. 192994, dated March 1, 2001, in the amount of $67,335.94, is genuine.

7. The original of PeopleSoft check No. 192994, dated March 1, 2001, in the amount of $67,335.94, paid nSight, Inc. invoices Nos. L3373-IN and L3394-IN in full.

8. nSight, Inc. negotiated the original of PeopleSoft check [N]o. 192994, dated March 1, 2001, in the amount of $67,335.94.

9. The original of the document entitled Statement of Work Exhibit A, dated as of November 28, 2000, by and between nSight . . . and PeopleSoft . . . is genuine.

10. The original of the document entitled Statement of Work Exhibit A, dated as of November 28, 2000 by and between nSight . . . and PeopleSoft . . . defined the scope of subcontract consulting services provided by nSight, Inc. to PeopleSoft, Inc. for the benefit of Radiant Systems, Inc.

11. nSight, Inc. invoices Nos. L3373-IN and L3394-IN represent the entire amount billed by nSight, Inc. to PeopleSoft, Inc. for services rendered pursuant to the Statement of Work Exhibit A, dated as of November 28, 2000 by and between nSight . . . and PeopleSoft USA, Inc.

12. nSight, Inc. has been fully compensated for all subcontract consulting services provided to PeopleSoft, Inc. for the benefit of Radiant Systems, Inc.

13. Radiant Systems, Inc. engaged nSight, Inc. to provide consulting services directly to Radiant Systems, Inc.

14. PeopleSoft, Inc. had no responsibility for payment of consulting services that nSight, Inc. provided directly to Radiant Systems, Inc.

15. nSight, Inc. invoices [N]os. L3415-IN, L3416-IN, and L3421-IN were for work that nSight, Inc. provided directly to Radiant Systems, Inc.

16. PeopleSoft, Inc. had no responsibility for payment of nSight, Inc. invoices [N]os. L3415-IN, L3416-IN, and L3421-IN.

[] . . . [] The [c]ourt finds that Plaintiff nSight, Inc., acting through its counsel Naren Chaganti, has willfully failed to make any attempt to respond to the [c]ourts order of June 21, 2006 requiring further responses to Requests for Admissions, Requests for Production of Documents Nos. 21-26 and Form Interrogatory 17.1. Counsel does not contend that Plaintiff was unable to provide responses. In light of the impending trial date, Defendant would be unfairly prejudiced by Plaintiffs failure to provide discovery responses unless issue sanctions are granted with regard to the issues about which discovery was sought.

[] . . . ] Defendants request for monetary sanctions is DENIED. In light of the issues adjudicated in favor of Defendant in this order, the interests of justice do not support an award of additional monetary sanctions.

That same day, Judge Needham continued the trial date to September 1, 2006. There is no reporters transcript for the events of September 1, when the case was sent for trial before Judge Sheppard, nor do we have the courts minutes detailing what occurred thereafter. All we have is what is recited in the judgment filed on September 12, 2006. Its relevant language is as follows:

After consideration of the parties written submissions and oral argument, the [c]ourt denied each of Plaintiffs motions in limine, granted each of Defendants motions in limine, and granted Defendants motion for judgment on the pleadings. As a result of such rulings, the issue sanctions ordered by the [c]ourt on July 20, 2006, and Defendants concession of liability for payment of invoices totaling $26,117.79 for Plaintiffs services related to Analogic Corporation, $1,030.87 for Plaintiffs services related to East Bay MUD, and $3,163.74 for Plaintiffs expenses related to Radiant Systems, Inc., the [c]ourt determined that no factual issues remained for trial and judgment should be entered as a matter of law.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff nSight, Inc. shall have and recover from Oracle, USA, Inc. the principal amount of $30,312.40, plus interest and costs as determined upon application by the parties, less $18,500.00 previously recovered by Plaintiff nSight, Inc. from former defendants Analogic Corporation and Radiant Systems, Inc., as required by Civil Code Section 877.

Three days later, on September 15, 2006, Judge Smith denied nSights motion for reconsideration of the sanction orders of June 21 and July 20.

In October, the parties turned to the issue of attorney fees. On October 4, Oracle moved for a determination that it was entitled as the prevailing party to fees under the Radiant contract, and that fees should be fixed in the amount of $28,819. On October 10, nSight moved for a determination that it was entitled to fees in an amount to be submitted . . . at the time of the hearing set for November 17, 2006.

nSight filed a timely notice of appeal on October 10, 2006.^[3] That same day nSight filed a motion pursuant to Code of Civil Procedure section 128.7 against Oracle seeking monetary sanctions for asserting frivolous defenses throughout the case only to withdraw these defenses at trial.

On November 17, 2006, after hearing argument on the motions for attorney fees, Judge Sheppard awarded nSight $412 and $29,849.87.^[4] On January 10, 2007, he denied nSights motion for reconsideration.

On December 7, 2006, Judge Sheppard denied nSights motion for sanctions under section 128.7 on the ground that it was untimely.

III. Discussion

A.

Before proceeding to the merits, we must first look to the notice of appeal to determine what is properly before us. The notice states:

PLEASE TAKE NOTICE THAT Plaintiff and its attorney Naren Chaganti hereby appeal from the Orders of Judge Winifred Smith of June 21, 2006, July 20, 2006 and September 15, 2006 as well as from the Order of Judge Harry Sheppard entered on September 5, 2006, including but not limited to the following rulings of the Superior

court:

a) denying motion for jury trial on fraud and other counts in the pleading and admission of unasserted affirmative defenses at the eleventh hour to Plaintiffs detriment;

b) entry of issue sanctions regarding the remaining Radiant amounts

c) offset this [c]ourt applied to the amounts due

d) monetary sanctions against Plaintiff and its counsel by Judge Winifred Smith

e) refusal of Judge Smith to refund the $625 sanction imposed on Plaintiff by the discovery referee in 2002

f) denial of motion for reconsideration

g) refusal to take judicial note of the error of her order re: Forrester and the settlement of Plaintiff with Forrester and other orders of the Superior Court.

One of the most elemental rules of appellate procedure is that the right to appeal is purely statutory, and no judgment, order, or ruling is reviewable on an appeal unless authorized by statute. (E.g., Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696; People v. Mazurette (2001) 24 Cal.4th 789, 792; Powersv. City of Richmond (1995) 10 Cal.4th 85, 109.) The relevant statute here is Code of Civil Procedure section 904.1.^[5]

Even if an appeal is statutorily authorized, the would-be appellant must file a notice of appeal that is timely and specifies the judgment or order that the appellant wishes reviewed. (Cal. Rules of Court, rules 8.100(a)(1)-8.100(a)(2).)^[6] Some flexibility is allowed in designation is allowed pursuant to the rule requiring that that a notice is to be liberally construed and is sufficient if it identifies the particular judgment or order being appealed. (Rule 8.100(a)(2).) On the other hand, a notice which is clear and unmistakable in its designation(s) cannot be construed to reach other orders or a judgment. (Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91-92; Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1352.)

And if a party timely appeals from the final judgment, a reviewing court can examine the correctness of any ruling or intermediate order leading to the judgment. (In re Matthew C. (1993) 6 Cal.4th 386, 393; Jennings v. Marralle (1994) 8 Cal.4th 121, 128; see  906 [appellate court on review off final judgment may review . . . any intermediate ruling , proceeding, order or decision]), unless the ruling or order is itself appealable. (Mohn v. Tingley (1923) 191 Cal. 470, 492 [ 906 does not authorize the court to review any decision or order from which an appeal might have been taken]; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1749.)

With these principles in mind, we turn to the subjects of nSights notice to determine which of them are properly before us.

The first item is Judge Smiths orders of June 21, 2006, which direct nSight and attorney Chaganti to pay sanctions in the amounts of $690 and $1,240.^[7] Because the amount is less than $5,000, the sanctions orders were not then separately appealable. ( 904.1, subds. (a)(11)-(a)(12).) However, because a judgment was eventually entered, the orders became appealable upon entry. (Id., subd. (b).)

The second item is Judge Smiths order of July 20, 2006. This is another sanctions order, but not one for money. Instead, the order grants Oracles motion for issue sanctions. Because no money was ordered, this sanction amounts to an intermediate ruling that would only be reviewable on appeal from the final judgment. (In re Matthew C., supra, 6 Cal.4th 386, 393.) This brings us to the thorniest issue.

It is apparent from the nSight/Chaganti opening brief that they wish to contest matters that are intermediate rulings that would only be reviewable if they had perfected a valid appeal from the judgment. We must confess a slight surprise that it still seems to beyond the ability of members of the Bar who drawing up a notice of appeal neglect to designate the final judgment. Fortunately, for nSight and Chaganti, a recent decision by our Supreme Court will overcome this omission.

In Walker v. Los Angeles Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, the court confronted the chronic problem of counsel appealing from the nonappealable order denying a motion for new trial, and not designating the appealable judgment that would permit review of the new trial ruling. The court concluded that where it is reasonably clear what appellant was trying to appeal from and no prejudice would accrue to the respondent [citation], the [c]ourt of Appeal should treat the notice as an appeal from the underlying judgment. (Id. at p. 18.) The court noted that application of the rule of liberally construing a notice of appeal will be applied to save an otherwise dismissible appeal from an order if there is an appealable judgment and these two tests can be met. (Id. at p. 20.) And these tests will save nSight and Chaganti.

It is fairly apparent from two specifications in the notice of appealfirst the denying motion for jury trial on fraud and other counts in the pleading and admission of unasserted affirmative defenses, and second, the offset this Court applied to the amounts duethat these are matters preliminary to a final judgment. They are in turn evidence that an appeal was meant to be taken from the judgment. In addition, nSight indicated on the docketing statement we require that it was appealing from the judgment entered on September 12, 2006.

Moreover, there appears to be no prejudice would accrue to the respondent by doing so, and that is how Oracle appears to have construed the matter, for it has addressed the merits of arguments related to the judgment raised in the opening brief. Accordingly, we shall deem the notice of appeal to include the final judgment filed on September 12, 2006, which, coincidentally and favorably to appellants, is before the notice of appeal was filed.

Third, there is what appellants designate as the Order of Judge Harry Sheppard entered on September 5, 2006. There is no order bearing that date in either appendix provided by the parties. However, it appears that what nSight meant to designate was the minute order made by Judge Sheppard on September 15, 2006, by which he denied nSights motion for reconsideration of the June 21 and July 20 sanction orders. This court has held that this type of order is not appealable. (Crotty v. Trader (1996) 50 Cal.App.4th 765, 768-769.)^[8] Moreover, because the order was made after the judgment was entered, it cannot be treated as an interlocutory ruling that is subsumed in the judgment, and thus reviewable on appeal from the judgment.

There is a third sanction order, for $675 from September 2002, that nSight and Chaganti attack in the opening brief. We decline to review this order because, unlike the other two sanction orders already discussed, this one is conspicuous by its absence from the notice of appeal. Nothing in the notice alerts that the appellants mean to put at issue a sanction order four years in his past. The contrast with the specification of the other two, by date and issuing judge, is telling. In these circumstances, the notice cannot be stretched by liberal construction to reach this third sanction order. (Glassco v. El Sereno Country Club, Inc., supra, 217 Cal. 90, 91-92; Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh, supra, 131 Cal.App.4th 1342, 1352.)

There are two postjudgment orders which will also not be reviewed.

The November 17 attorney fee order is appealable as an order made after a final judgment ( 904.1, subd. (a)(2)), but it is not subsumed in an appeal from the judgment; it must be separately specified in a notice of appeal. (See Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1171-1172 and authorities cited.) Because the notice of appeal was filed in October, more than a month before the fee order was made, the latter was obviously not specified in the former. (Cf. rule 8.104(e) [notice of appeal may reach order or judgment already announced or rendered but not yet entered].)

The same is true for the December 7 order declining to impose monetary sanctions against Oracle pursuant to section 128.7. That order is appealable. (Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1121-1123.) But, because the order was made almost two months after the notice of appeal was filed, the notice cannot be deemed to reach an order not yet in existence. (See rule 8.104(e).)

In light of the foregoing, the subjects properly before us are the judgment and the sanction orders made by Judge Smith and Judge Sheppard.

B.

The arguments made by nSight against Judge Smiths monetary sanction orders of June 21, 2006, are almost entirely procedural. Addressing nSights arguments will require some particulars about the events leading to those orders.

On May 22, Oracle filed a motion for a protective order against nSight requiring documents from Forrester Research, Inc. (Forrester) pursuant to subpoena duces tecum, and requiring Forrester to produce an employee for deposition concerning the documents. The grounds for the motion were that the scheduled deposition (1) does not seek information relevant to the subject matter of this action or reasonably calculated to lead to the discovery of admissible evidence, and (2) has been noticed solely to circumvent an order issued in a federal court action between Plaintiff and Defendant holding that Plaintiff was not entitled to such discovery. Oracle also sought sanctions from nSight and Chaganti on the ground that nSights refusal to withdraw its subpoena and subsequent opposition to this motion were made without substantial justification, and in bad faith.

Oracles supporting papers explained that after nSight had commenced this action against PeopleSoft in state court, it had also sued PeopleSoft in federal court for violation of the Sherman Antitrust Act. nSight tried to obtain discovery from Forrester in the federal action, but the district court refused to enforce the subpoena because the discovery period had ended. That same day, nSight served the state subpoena. Oracles motion was calendared for the morning of June 21.

On May 23, the day after Oracle filed its motion, Forrester filed a motion to quash nSights subpoena on essentially the same grounds behind Oracles motion. Forrester also sought monetary sanctions against nSight and Chaganti. Forresters motion was also scheduled to be heard on the morning of June 21.

Before these motions were heard, another discovery-related dispute went to the court. By early June, nSight had responded to Oracle discovery requests (interrogatories, admissions, and production of documents) in a manner that Oracle deemed equivocal, evasive and nonresponsive. According to Oracles attorney, Oracle planned to bring a motion to compel, but the courts calendar clerk informed him that all dates between June 29, 2006 (the first date for which a hearing could be held if notice were given by overnight delivery on June 5) and July 6, 2006 (the last day on which a discovery motion may be heard pursuant to Code of Civil Procedure  2024.020(a)) were locked and Defendant could not obtain a hearing date without seeking ex parte relief.

Oracle did so. On June 7, it filed an ex parte application for an order shortening time, thus permitting its motion to compel to be heard before the statutory period expired. Oracle stated that Notice of this application was provided to counsel for Plaintiff by email on June 5, 2006 at 4:35 p.m. Further notice was provided by voice mail message on June 6, 2006 at 9:50 a.m.

Judge Ford granted Oracles application, allowing Oracles motion to compel to be filed the following day, June 8. Oracles motion was, like its motion for a protective order and Forresters motion to quash, calendared for hearing on the morning of June 21. Oracle reiterated its request for monetary sanctions against nSight and Chaganti. nSight filed an extensive opposition, together with a declaration by Chaganti supporting nSights request for $3,500 monetary sanctions against Oracle.

On June 21, at an unreported hearing, Judge Smith in essence granted most of the relief sought by the motions. Forresters motion to quash nSights subpoena was granted, but its request for sanctions was denied as procedurally defective. In light of this ruling, Oracles motion for a protective order was denied as moot, but its request for sanctions was granted, in the amount of $690. Oracles motion to compel was granted; nSight was directed to provide further responses to the requests for admission, to Form Interrogatory 17.1, and to requests for production of documents Nos. 21-26. In connection with this ruling, nSight and Chaganti were ordered to pay additional sanctions of $1,240.

On June 30, 2006, filed a petition in this court for a writ of mandate and/or prohibition to overturn Judge Smiths rulings. The petition was summarily denied on July 6, 2006. (nSight, Inc. v. Superior Court (July 6, 2006, A114318) [nonpub. order].)

Recognizing that a trial courts ruling on discovery matters, including sanctions, is reversible only for abuse of discretion (People v. Ayala (2000) 23 Cal.4th 225, 299; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388), we now turn to the attacks nSight directs at the rulings made by Judge Smith on June 21. We begin with nSights contentions concerning what it asserts are the defective judicial procedures employed.

nSight opens with an argument that, in its entirety, reads as follows: Nothing permits the trial court to delegate the authority to hear and grant orders shortening time to law clerks. But Judge Winifred Smith had her law clerks me[et] with lawyers and issued orders shortening time in the judges name. This improper delegation of power violates due process and voids the orders. This argument is rejected because it is unsupported by supporting argument, authorities, or citations to the record as required by rule 8.204(a)(1)(B)-(a)(1)(C). It is rejected for the additional reason thatjudging from nSights written oppositions to Oracles motions, and nSights own motion for reconsiderationit was never made in the trial court. (Burden v. Snowden (1992) 2 Cal.4th 556, 570; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  394, p. 444.)

nSight argues that Oracles motion to compel (and the accompanying request for sanctions) was procedurally defective because the court had no authority to allow it to be filed on the basis of the ex parte applications to shorten time.^[9] This is incorrect. Section 1005, subdivision (b) granted that authority. nSight raises the issue of harm to Oracle, asserting it was not, as required by rule 3.1202(c), addressed in the declaration of Oracles attorney filed with the application. The excerpt of Oracles attorney quoted in footnote 10, post, proves that nSights claim is patently untrue.

nSight contends that the tentative decision system of the Alameda Superior Court operates in an unconstitutional fashion. As nSight argues, Local rules, in this case Alamedas rules governing the tentative decision system, that shorten statutory time periods are unlawful and constitutionally defective because they cut off adequate notice and a meaningful opportunity to address the issue. Not true. If a procedure, in this case the shortening time procedure of section 1005, is authorized by statute, local rules become secondary, and their operation cannot invalidate what the statute permits. (E.g., Hall v. Superior Court 133 Cal.App.4th 908, 916-918 & fns. 16-18; Iverson v. Superior Court (1985) 167 Cal.App.3d 544, 547-548.)

nSight also has a number of contentions concerning the alleged procedural deficiencies of Oracles motions for a protective order, and to compel answers to its outstanding discovery requests.

nSight argues that Oracles counsel did not satisfy the meet-and-confer requirement imposed by rule 3.1202, CCP  2024.050(a), and CCP  2023.010. Section 2023.010, subdivision (i) provides that among the practices constituting misuse of the discovery process is Failing to confer in person, by telephone, or by letter with the 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. (Italics added.) Neither rule 3.1202 nor CCP  2024.050(a) require that an attempt an informal resolution has been made. In any event, Oracles attorney did in effect state in his declaration that he made such an attempt.^[10] nSight conceded in its opposition that Oracles counsel has sent a meet-and-confer letter, but nSight did not argue in its opposition that this did not constitute compliance with the authorities now cited by nSight. The argument fails for this additional reason. (Burden v. Snowden, supra, 2 Cal.4th 556, 570; 9 Witkin, Cal. Procedure, supra, Appeal,  394, p. 444.)

nSight next contends that Oracle had no standing under section 1987.1 to object to the subpoena issued to Forrester, which was a third party to the nSight-Oracle litigation. This was not an argument made in nSights written opposition to the Forrester and Oracle motions. Thus, nSights contention can be, and is, rejected on the ground that it was not raised before Judge Smith. (Burden v. Snowden, supra, 2 Cal.4th 556, 570; 9 Witkin, Cal. Procedure, supra, Appeal,  394, p. 444.)

The contention also fails on the merits. Section 1987.1 at the time provided that a subpoena could be challenged upon motion reasonably made by the party, the witness, or any consumer described in Section 1985.3, or upon the courts own motion . . . . Oracle was a party and clearly interested in not running the risk of having the trial date a month hence delayed by starting a new round of discovery. Oracles attorney characterized nSights quest for discovery from Forrester as harassment.^[11] Oracle had standing.

nSight next contends that Oracle did not show that nSights subpoena was issued in bad faith or that it posed actual harm to Oracle. The fact that nSight sought state court discovery immediately after the federal court disallowed that same discovery, and four years after nSight commenced this action (see fn. 11, ante), is sufficient to raise a question of nSights good faith. The matter of harm to Oracle has already been answered.

nSight submits that its subpoena should have been allowed to stand, and the deposition of Forresters custodian of records to proceed, because it was properly seeking information under the very broad standard of relevancy used for discovery. But this is only one of the two grounds cited by Judge Smith for quashing nSights subpoena. The reasons for quashing the subpoena were given as follows: The discovery sought is not relevant to the subject matter of this action and is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs claims for fraud and violation of Business & Professions Code  17200 et seq. do not encompass the conduct at issue in the documents sought from Forrester. The subpoena also constitutes an unreasonable demand for production of Forresters proprietary work product.

Because nSight does not challenge the second of the two grounds found by Judge Smith, it implicitly concedes that the second ground is sound. That waiver requires us to uphold Judge Smiths decision. (Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1808; Hambrose Reserve, Ltd. v. Faitz (1992) 9 Cal.App.4th 129, 133; Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709, 715; see also fn. 9 and authorities cited, ante.)

C.

nSight and Chaganti present no substantive argument against Judge Smiths June 21 sanction order of $690, except to argue that Oracle had no standing, a point we have already rejected. They do challenge the sanction order for $1,240 made at the same time by Judge Smith in connection with Oracles motion to compel. They contend that sanctioning them for failing to make discovery in a timely manner requires the trial court to find that the failure was willful, which in this case it was not because Chaganti was out of the country and counsel for Oracle knew as much.

Appellants are able to cite authority that a sanctionable failure to produce discovery must be willful (see Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1922) 7 Cal.App.4th 27, 36, cited by appellants), but that is no longer the standard. With respect to both of the monetary sanctions imposed by Judge Smith, the statutory standard is that such shall be imposed against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order or to compel further response unless [the court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. ( 2031.060, subd. (d) [protective order], 2033.290, subd. (d) [further responses].) This was the standard employed by Judge Smith in imposing the $690 sanction.

Comparable language is not present in the minute order imposing the $1,240 sanction, but this omission is not consequential. We would not assume Judge Smith imposed the $1,240 sanction according to an improper or erroneous legal standard. (Evid. Code,  664.) This conclusion is supported by the other minute order, made the same day, when Judge Smith imposed the $690 according to the governing statutory requirement. It is hardly reasonable to imagine Judge Smith made the two orders, virtually at the same time and as part of the dispute between the same parties, using different legal criteria.

nSight also contends that Judge Smiths June 21 $1,240 sanction order is defective by reason of language in the minute order. nSight asserts that Judge Smith ignored filed opposition and stated that [the] motion was unopposed. The minute order for June 21, which is the record we have for the ruling on this sanction order, opens by reciting: The Motion for Protective Order was set for hearing on 06/21/2006 at 9:00 AM in Department 31 before the Honorable Winifred Y. Smith. The Tentative Ruling was published and was uncontested. [] . . . []  . . . The unopposed motion by Defendant Oracle . . . to compel discovery responses and production of documents is GRANTED. It does appear that nSight did file written opposition on June 19, 2006.^[12] But Judge Fords order granting Oracles motion to shorten time directed that Opposition shall be filed and served . . . no later than 4 p.m. on June 16, 2006. Opposition that is untimely does not count. Thus, it appears that the recital that Oracles motion was unopposed is correct.

nSight argues that The trial court erred when it imposed discovery sanction of $1240 on shortened time without giving statutory notice or hearing. The front page of nSights untimely opposition shows that it was aware of the time of the hearing. And after four years in Alameda Superior Court, neither nSight nor Chaganti can plausibly claim ignorance of the courts tentative decision system.

nSight next argues that its objections were proper based on the history of the case. This of course assumes that it made those objections in a timely fashion. As already shown, it did not.

Finally, Chaganti argues that Monetary sanctions against the partys attorney require a finding the attorney advis[ed] that conduct. CCP 2023(b)(1) [sic: 2023.030, subd. (a)]. Such findings being absent, the sanction should be reversed. Chaganti cites no authority that an express finding is mandatory. The finding may be implied from the courts order. (See Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793; Wilson v. Gentile (1992) 8 Cal.App.4th 759, 763, fn. 1.) Given the courts greater knowledge of the parties and counsel, we believe such a finding is warranted. (See Corns v. Miller (1986) 181 Cal.App.3d 195, 201 [attorney has burden to prove he did not counsel disobedience and when attorney did not submit any opposition to the motion for sanctions, and did not appear at the hearing on the motion, he failed to discharge his burden of proof and the court acted properly in ordering sanctions against him.].)

D.

With respect to Judge Smiths July 20 order granting the issue sanctions against nSight, the relevant details are as follows:

On July 7, the day after this court denied nSights petition for extraordinary relief to overturn Judge Smiths June 21 sanction order, Oracle was back in court, again with an ex parte application shortening time for filing of Oracles motion for terminating or preclusive sanctions. Oracle explained the need for the application as follows: Plaintiffs failure to obey the [c]ourts June 21, 2006 order, even after imposition of monetary sanctions, justifies imposing more severe sanctions prior to the trial scheduled for July 21, 2006. Defendants motion for terminating or issue sanctions cannot be heard on regular notice because of the scheduled trial date. Oracle stated that Notice of this application was provided to counsel for Plaintiff by email on July 5, 2006 at 5:28 p.m. Further notice was provided by voice mail message on July 6, 2006 at 10:00 a.m.

Judge Smith granted Oracles application the same day. The order specified that Oracle had to serve the order and the motion that day, nSights opposition had to be filed by July 14, and hearing on Oracles sanction motion would be held on July 20.

Oracle moved for sanctions as authorized by sections 2030.300, subdivision (e), 2031.300, subdivision (c), each of which provides that If a party then fails to obey the order compelling further response[s] . . . the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction; and section 2033.290, subdivision (e), which provides If a party then fails to obey an order compelling further response to requests for admission, the court may order that the matters involved in the requests be deemed admitted. The basis for Oracles motion was that nSight had made no attempt to comply with the order of June 21, and the June 30 deadline imposed by Judge Smith had passed with no further discovery forthcoming from nSight.^[13]

nSight filed its opposition on July 11, together with a declaration by Chaganti supporting nSights request for monetary sanctions of $4,000. Chaganti stated in the opposition that Throughout these filings and ex-parte motions, Plaintiffs counsel has been away in India to care for his ill mother, but apparently was in contact with Oracles counsel by e-mail. Nevertheless, the communication was less than perfect; unaware that his writ petition in this court had already been denied, Chaganti asked Judge Smith to take judicial notice of the petition (and his opposition to Oracles motion to compel), and defer a ruling until the Court of Appeal[] has had a chance to enter its orders.

Chaganti further stated that Oracles counsel knew he would be in India, and thus in effect misled the court by twice stating that he notified Chaganti of the ex parte applications to shorten time. He mentioned nSights opposition to Oracles motion to compel that apparently was not seen by the court (see fn. 8 and accompanying text, ante), but was known to Oracles counsel, who had received it via E-mail from India, but did not so advise the court, thereby permitting Judge Smith to file an obvious false order. Indeed, nSight and Chaganti believed the matter was sufficiently egregious that not only should Oracle not be granted further sanctions, the court should revise its earlier rulings, revoke[e] the earlier order compelling compliance with the discovery requests, and enter terminating sanctions in favor of Plaintiff in addition to monetary for this motion in the amount of $4000.

On July 20, after hearing unreported argument on the motion, Judge Smith made the order already quoted ante.

nSight makes the categorical assertion that Motions to deem matters admitted cannot be heard on shortened time. nSight is able to call upon the support of Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, but nSight apparently does not understand that Demyers analysis of section 2033the statute governing discovery admissionswas decisively undermined when Demyer was disapproved in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 and when the Legislature virtually rewrote section 2033 in 2005, making 18 separate statutes ( 2033.010-2033.420) out of what had been a single one.

Demyer is also distinguishable because (1) it took insufficient account of the role of section 1005, discussed in part III (B), ante, and (2) as Oracle points out in its brief, the procedure at issue in Demyer was the deemed admitted procedure used when a party fails to respond to admission requests; here, however, responses had been made, but the opposing party sought sanctions for their inadequacy.

nSight repeats it contention that no sanction could be assessed in the absence of a finding of willfulness. None of the statutes invoked by Oracle impose such a requirement. In any event, willful failure to comply is indisputable. nSight and Chaganti may have believed in good faith that proceedings in the trial court would or should halt pending decision by this court on nSights application for extraordinary relief.^[14] Nevertheless, in insisting on having that position vindicated, nSight willfully, that is, intentionally and volitionally, did not comply with Judge Smiths order. If willfulness was required, it appears here as a matter of law.

A final observation is in order. Throughout its brief are hints, often snidely phrased, that Oracle and its counsel exploited the absence of Chaganti, taking unfair advantage of his stay in India to succor an ailing parent. Nevertheless, it is striking that Chaganti never mentioned this fact, or challenge the inadequacy of opposing counsels efforts to resolve matters without court involvement, in his opposition to Oracles motion for a protective order, or in the opposition to Oracles motion to compel, (each of which was accompanied by a declaration from Chaganti) It was not until more than a month later, when nSight asked Judge Smith for reconsideration of the June 21 orders, that the matter was raised. Distance did not prevent Chaganti from preparing and submitting these extensive oppositions.

Further, the attack on Oracles counsel is completely unjustified. It appears that the opposition to Oracles motion to compel was completed and served on June 18, 2006. The opposition itself bears a file stamp for June 19. By any chronology, the opposition was not filed before the deadline imposed by Judge Smith. Counsel for Oracle had no obligation to advise Judge Smith that nSights untimely filing contradicted the tentative ruling reciting that Oracles motion to compel was unopposed.

E.

nSight next contends that Judge Sheppard erred in denying all of nSights in limine motions. nSight submitted 10 such motions, but it mentions only three in its argument. We have neither minutes nor a reporters transcript informing us of the reasons for Judge Sheppards denial of nSights in limine motions. We do not assume trial court error, it must be established by the appellant. (Carpenter v. Pacific Mut. Life Ins. Co. (1937) 10 Cal.2d 307, 326; In re Estate of Aufret (1921) 187 Cal. 34, 37; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) Because the reasons for Judge Sheppards ruling are not known, nSight cannot establish that they are legally erroneous. In these circumstances, the contention fails because nSight as appellant has failed to carry its burden of establishing error by an adequate record. (Ketchum v. Moses, supra, 24 Cal.4th 1122, 1140-1141; Hughes v. Wheeler, supra, 76 Cal. 230, 234; 9 Witkin, Cal. Procedure, supra, Appeal,  518, p. 562.)

F.

Under the heading of Deciding the case on motions in limine as a de facto motion for summary judgment violates the procedures under CCP  437c, nSight presents a number of arguments as to why Judge Sheppard erred in entering judgment for Oracle.

nSight first argues that [a] motion in limine cannot substitute for a motion for summary judgment. (Italics omitted.) This amounts to little more than a truism. Certainly there are hazards if a trial court is not careful in using nonstatutory means to achieve the same ends served by statutory procedures, and appellate courts have cautioned against indiscriminate missing of the two categories. (See Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1594-1595 and authorities cited [2008 WL 151268, pp. 5-6].) Even so, it is well established that an in limine motion may be treated as a request for judgment on the pleadings. (See Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 701-702 and authorities cited.) Moreover, Oracles moving papers made it clear that it was seeking judgment on the pleadings; each of Oracles requests to Judge Sheppard were described as Motion in Limine on in the Alternative for Judgment of the Pleadings. The point is in any event academic because Judge Sheppard could have granted judgment on the pleading on his own motion ( 438, subd. (b)(2)), at any time, including after the start of any actual trial. (Morel v. Morel (1928) 203 Cal. 417, 418; Stoops v.Abbassi (2002) 100 Cal.App.4th 644, 650.)

We do not have a reporters transcript of the proceedings before Judge Sheppard, and the judgment simply recites that he granted both Oracles motions in limine and its motions for judgment on the pleadings. As motions for judgment on the pleadings are governed by statute ( 438), it cannot be necessarily concluded that Judge Sheppard improperly usurped the function of a statutory procedure. It follows that it does not matter whether Oracle designated their motions in part as in limine because the motions also sought judgment on the pleadings, and Judge Sheppard was within his authority to treat the motions in the latter characterization.

nSight next argues that Judge Sheppard violated the rule of priority of jurisdiction when he dismissed the fraud claim as to which Judge Richman denied [Oracles] motion for summary judgment. The premise for this argument is that what Judge Sheppard did was grant a motion for summary judgment. As just discussed, this premise is false. The function of summary judgment is quite different from that of judgment on the pleadings. Moreover, as previously established, judgment on the pleadings may be granted at any point up to and including the start of trial. It follows that prior rulings, even if they address the same issue, will not bind a judge subsequently considering whether to grant judgment on the pleadings. This court has so held. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877; see 6 Witkin, Cal. Procedure, supra, Proceedings Without Trial,  172, pp. 586-587.)

G.

On the merits, nSight contends Judge Sheppard erred in dismissing the causes of action for fraud and Oracles alleged violation of Business and Professions Code section 17200.

We have recognized that A motion for judgment on the pleadings is the equivalent of a general demurrer but is made after the time for demurrer has expired. The rules governing demurrers apply. [Citation.] The grounds for a motion for judgment on the pleadings must appear on the face of the challenged complaint or be based on facts which the court may judicially notice. [Citations.] On review we must determine if the complaint states a cause of action as a matter of law. [Citation.] We review the complaint de novo to determine whether [it] alleges facts sufficient to state a cause of action under any legal theory. [Citation.] [Citation.] (McCormick v. Travelers Ins. Co. (2001) 86 Cal.App.4th 404, 408; see also GerawanFarming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516; 6 Witkin, Cal. Procedure, supra, Proceedings Without Trial,  164, pp. 577-578.)

Trial and reviewing courts accept the truth of properly pleaded factual allegations, but not contentions, deductions, or conclusions of fact or law. (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127; Mack v. State Bar of California (2001) 92 Cal.App.4th 957, 961.) The pleadings of other party or parties may also be examined to determine if there are contested issues of fact or merely issues of law requiring resolution. (MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 812-813; Knoff v.City etc. of San Francisco (1969) 1 Cal.App.3d 184, 200-201.) In addition, and significant for present purposes, courts are entitled to consider a partys admissions or concessions that can not reasonably be controverted. (Mack v. State Bar of California, supra, at p. 961.)

nSights fraud cause of action incorporates all of the allegations of its cause of action against Oracle for breach of contract. Considering both causes of action together, the relevant allegations are as follows: nSight and Oracle have conducted business with each other since 1996. Concerning the Radiant and the Analogic contracts, nSight and Oracle entered into an agreement whereby Oracle would pay for services nSight provided to Radiant and Analogic. nSight provided the services, but Oracle refused to pay invoiced amounts of $34,313.74 and $26,117.79. As to the East Bay MUD contract, nSight contracted with SkillsVillage to provide computer services to East Bay MUD. nSight provided the services prior to SkillsVillage being acquired by Oracle in June 2001. (See fn. 1, ante.) Oracle refused to pay nSight $1,030.87.

In January 2000, nSight and Oracle executed a Consulting Services Subcontractor Agreement (CSSA). One of the provisions (the forfeiture provision) of the CSSA specified that Oracle would have no obligation to pay for services under an agreement of the type governing the Radiant and Analogic deals unless nSight submitted invoices within 30 days of performing services. Oracle falsely represented to nSight that the CSSA would not apply to other unrelated contracts such as the Radiant contract, the Analogic contract and the SkillsVillage contract[]. In fact, Oracle suppressed the intent to use the CSSA to deny legitimate payments due to nSight under the Radiant, Analogic, and SkillsVillage contracts.

nSight further alleged that it would not have provided services under the three contracts had it known that Oracle intended to invoke the forfeiture provision of the CSSAA. But for Oracles fraudulent acts, secret intentions, and false representations, Oracle would not have been able to refuse payment to nSight under the three contracts. Concerning its damages, nSight alleged that Oracle, using the forfeiture provision, denied payment for the Radiant, Analogic, and SkillsVillage contracts, stating that nSight violated the CSSA. Oracle acted with fraud, oppression or malice and therefore nSight is entitled to punitive damages.

These allegations are taken from nSights third amended complaint filed in September 2003. nSight contends that judgment on the pleadings was improperly granted. We do not agree.

The allegations recounted above were added after litigation was commenced. nSights original complaint filed in May 2002 had no fraud count, only a single cause of action for breach of contract or unjust enrichment; there was no mention of the CSSA. It was only after nSights supposed noncompliance with the CSSA was raised by Oracle once discovery had begun, that nSight amended its complaint to make the CSSA the basis for its fraud claim. Thus, in September 2002, nSight sought leave to file a first amended complaint, explaining: The Amendment consists of two additional counts for fraud and violation of Bus. & Prof. Code  17200 . . . . Plaintiff proposes to amend the complaint in light of evidence obtained through discovery in which Defendant in fact used a thirty-day clause as a defense for its failure to pay for services rendered. This was precisely why Oracle opposed nSight being granted leave to amend: Plaintiffs angry reaction to PeopleSofts reliance on plaintiffs non-compliance with the contract term requiring submission of invoices within 30 days is what has prompted the proposed amendment.

nSight did not allege, nor could it, that the existence of the CSSA affected its decisions to furnish services under the Radiant, Analogic, and SkillsVillage contracts. A fair reading of the fraud cause of action is that the alleged fraud in the inducement of the CSSA was unrelated to execution and performance of those contracts, and that the only damages nSight suffered were the result of Oracles attempting to use the forfeiture provision in the CSSA to avoid paying nSight for the services it rendered under those three contracts. However, before Judge Sheppard, Oracle renounced reliance on the forfeiture provision and virtually stipulated to liabilityboth as to principal and to prejudgment interestto nSight on all three contracts. Moreover, any costs nSight incurred in the action, before Oracle made these concessions, would be compensated (as they were) by the attorney fee provisions in the contacts. There is nothing in the allegations indicating that the CSSA adversely impacted nSights dealings with other entities.

Thus, nSight could point to no damages directly caused by these alleged misrepresentations concerning the CSSA. Oracles concessions, and Judge Smiths issue sanctions, establish this conclusion beyond dispute. (Mack v. State Bar of California, supra, 92 Cal.App.4th 957, 961; Knoff v. City etc. of San Francisco, supra, 1 Cal.App.3d 184, 200-201.) Misrepresentation, even maliciously committed, does not support a cause of action unless the plaintiff suffered consequential damages. (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 159.) Fraudulent representations which work no damage cannot give rise to an action at law. [Citation.] [Citation.] A complete causal relationship between the fraud or deceit and the plaintiffs damages is required. [Citations.] (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132.) The absence of damages is fatal to a cause of action for fraud. (E.g., Civ. Code,  1709-1710; Holton v. Noble (1890) 83 Cal. 7, 9 [Fraud without damage furnishes no ground for action]; Reay v. Butler (1886) 69 Cal. 572, 580 [Fraud without damage calls for no redress from any court]; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,  816, pp. 1178-1180.) Accordingly, there was no error when Judge Sheppard granted judgment on the pleadings as to nSights fraud claim.

With respect to its cause of action for violation of Business and Professions Code section 17200, nSight incorporated all of the allegations from its fraud cause of action, and further alleged that that the above-described representations, acts and/or omissions

. . . constitute unfair business practices and unfair competition. PeopleSoft has unjustly enriched itself by its misrep