P. v. Miami Nation Enterprises
Filed 1/21/14 P. v. Miami Nation Enterprises CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE OF
THE STATE OF CALIFORNIA,
Plaintiff and Appellant,
v.
Miami Nation
Enterprises et al.,
Defendants and Respondents.
B236547
(Los
Angeles County
Super. Ct. No.
BC373536)
APPEAL
from an order the Superior Court of Los
Angeles County, Yvette Palazuelos, Judge.
Affirmed.
Uche
L. Enenwali, Senior Corporations Counsel,
Alan S. Weinger and Mary Ann Smith, Deputy Commissioners, California
Corporations Counsel, for Plaintiff and Appellant.
Fredericks Peebles
& Morgan and John Nyhan for, MNE and SFS, Inc., Defendants and Respondents.
__________________
The Commissioner of the California
Department of Corporations (Commissioner),
the State of California, sued Ameriloan, United Cash Loans, US Fast Cash,
Preferred Cash and One Click Cash for injunctive relief, restitution and
providing short-term, payday loans over the Internet to California residents in
violation of several provisions of the California Deferred Deposit Transaction
Law (DDTL) (Fin. Code, § 2300 et seq.). Miami
Nation Enterprises (MNE), the economic
Miami Tribe of Oklahoma, a federally recognized Indian tribe, and SFS, Inc., a
corporation wholly owned by the Santee Sioux Nation, also a federally
recognized Indian tribe, specially appeared and moved to quash service of
summons and to dismiss the complaint on the ground the lending businesses named
as defendants were simply trade names used by the two tribal entities and, as
wholly owned and controlled entities of their respective tribes operating on
behalf of the tribes, they were protected from this state enforcement action
under the doctrine of tribal sovereign
During the
course of this litigation on the issue of subject matter jurisdiction, the
trial court imposed $34,437.50 in discovery sanctions against the Commissioner
after the court denied in substantial part her motion to compel further
responses to a second set of requests for production of documents from MNE and
SFS. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In
filed concurrently with this decision, we affirm the trial court’s order
dismissing the action against MNE and SFS under the doctrine of tribal
sovereign immunity. Because a relatively
complete factual and procedural background of the lawsuit, including a
comprehensive discussion of our earlier decision in Ameriloan v. Superior Court (2008) 169 Cal.App.4th 81 (
we limit the discussion here to the parties’ discovery disputes and the
resulting sanctions order.
In
held, to decide whether the tribal entities operating through the named payday
loan companies are entitled to the benefits of tribal sovereign immunity, the
trial court “must first determine whether those entities, in fact, are acting on
behalf of federally recognized Indian tribes.â€
(Id. at p. 97.) In light of the trial court’s failure to make
findings pertinent to the required “arm-of-the-tribe†analysis, we directed it
to conduct a new evidentiary hearing and to consider whether the two tribal
entities are sufficiently related to their respective tribes to be entitled to
the protection of tribal sovereign immunity.
“To this end, the court should consider the criteria expressed by the
Courts of Appeal in Trudgeon [
[Redding] Rancheria [v. Superior Court
(2001)] 88 Cal.App.4th [384,] 389, including whether the tribe and the entities
are closely linked in governing structure and characteristics and whether
federal policies intended to promote Indian tribal autonomy are furthered by
extension of immunity to the business entity.â€
(Ameriloan, at p. 98.) In response to the Commissioner’s request to
be permitted discovery into the assertion that profits from the payday loan
operations benefit the two tribes that created MNE and SFS, we observed, “we
see no reason why limited discovery, directed solely to matters affecting the
trial court’s subject matter jurisdiction, should impact the payday loan
companies’ special appearance . . . .†(Id.
at p. 98.) Nonetheless, because no issue
relating to discovery was raised in the petition for writ of mandate, we made
no express ruling on the permissible scope of any discovery when the matter
returned to the trial court. (
1.
Requests and Business Records Subpoenas
On January 26, 2009, shortly after we filed our decision in Ameriloan, the Commissioner served discovery demands on MNE and SFS
containing 91 requests for production of documents, 31 requests for admissions
and form interrogatories. MNE and SFS
served responses and objections. The
Commissioner thereafter moved to compel further responses.
The court on September 15, 2009 granted in part and denied in part the motion to compel production
of documents. After reviewing our
observations about limited discovery directed to the necessary arm-of-the-tribe
analysis, the court found the categories described in a large majority of the
document requests were overbroad and thus necessarily sought a great deal of irrelevant
information; several requests sought wholesale production of sensitive
financial documents without sufficiently establishing good cause or
demonstrating the information could not be obtained in a less intrusive manner;
and a number of the others concerned the allegedly unlawful conduct at issue in
the complaint but were irrelevant to the jurisdictional analysis. For example, the Commissioner sought
documents “evidencing disposition of all revenues generated by Defendants and
tribes†and “documents for all loans made to California
consumers, as well as collection efforts.â€
However, because persuasive arguments had been presented by both sides
in connection with the motions to compel, the court determined sanctions were
not warranted under Code of Civil Procedure section 2031.310, subdivision (h).
The court also
granted in part and denied in part the motions to compel further responses to the
Commissioner’s form interrogatories and requests for admissions. With respect to the interrogatories, the
court ordered MNE and SFS to provide substantive information regarding their insurance
policies, crediting the Commissioner’s argument it may be probative of
ownership and control of the cash-advance businesses. The court also ordered substantive responses
to requests for admission concerning how the specially appearing defendants are
managed and what happens to the profits from their business operations. The court ruled, “[T]he facts are probative
of how Defendants are run, which goes to the question of how connected
Defendants are with the tribal entities.
Although no single Request for Admission seeks admission that would be
dispositive of the jurisdictional issue, taken together, they may yield
evidence that is probative of whether Defendants are entitled to claim
protections of tribal sovereign immunity.â€
As with the motion to compel production of documents, the court found
the parties had acted with substantial justification and declined to award
sanctions to either side.
Several months
earlier, on April 6, 2009, the court had granted MNE and SFS’s motion to quash
a business records subpoena to U.S. Bank that sought “nearly all of Ameriloan’s
bank records†on the ground it was overbroad and sought information beyond the
permissible scope of limited, jurisdictional discovery. The court specifically stated “a narrowly
tailored subpoena, however, may pass muster.â€
The Commissioner served a second subpoena on U.S. Bank. A second motion to quash was denied as to
three specifically defined items
monthly account statements, all deposit slips and items credited to the account
and all withdrawal items including cancelled checks for a three-year period. In its July 2, 2009 order the court explained
the Commissioner “should be permitted to adduce evidence in opposition to the
motion [to quash service and dismiss the complaint] that shows that Defendants
are independent from the tribal entity, and fail to serve tribal interests,†and
ruled “[t]he instant subpoena is far more narrowly tailored to meet this
objective than the subpoena previously served.
However, it is still overbroad to the extent that it seeks all account
statements, deposits, and withdrawals.â€
2. Appointment
of a Discovery Referee
In light of the
ongoing discovery disputes and pursuant to the parties’ stipulation under
section 639, on February 10, 2010 the trial
court appointed retired superior court judge Dzintra Janavs as a discovery
referee. The appointment order directed
the referee to resolve “any and all issues and disputes arising from discovery
in this litigation,†including issues concerning the protective order
permitting designation of documents and information as “confidential,†which
the court had entered in the action on January 5, 2010
at the request of MNE and SFS. The appointment
order directed the tribal entities to pay all referee’s fees.
3. The
Commissioner’s Second Set of Discovery Requests
On April 1, 2010 the Commissioner served a second set of discovery demands, which
consisted of a request for production of 49 categories of documents, 26 additional
requests for admission and 64 special interrogatories. MNE and SFS served responses. The parties met and conferred through an
exchange of letters in August 2010, and the Commissioner thereafter filed
motions to compel as to each type of discovery with the referee.
The motion to
compel further responses to the second set of requests for the production of
documents was directed to 36 of the 49 categories in the set; the Commissioner
contended those requests were all within the permissible scope of
jurisdictional discovery as set forth in Ameriloan
and were not overly broad, duplicative or burdensome. In a 28-page report dated February 23, 2011, the discovery referee recommended denying all but three of the
additional document requests.
Discussing the
nature of the document demands in general, the referee noted at least one
request was identical to a request in the initial document demand and there
were numerous other requests that were, “for all practical purposes,
identical.†The referee explained the
Commissioner “is not entitled to make identical or substantially identical Requests
for Production to those previously denied, unless [the Commissioner] makes a
showing that the reason or basis on which the Requests were denied no longer
exists.†With respect to the appropriate
scope of discovery relating to tribal sovereign immunity, the referee concluded
that “business minutiae, details regarding the business operations, and the day
to day operation and management of ‘the arms’ are irrelevant and beyond the
scope of the jurisdiction issue here.â€
The referee
recommended in her report that MNE and SFS provide responses to portions of
three of the outstanding document demands: all powers of attorney executed by the Tribes
(that is, by the Miami Nation of Oklahoma, the Santee Sioux Nation, MNE or SFS)
appointing nontribal member Scott Tucker
respect to the payday loan businesses at issue in the enforcement action; all
contracts relating to the assignment or transfer by the prior nontribal owner
(a Tucker-related entity) of the payday loan businesses of any interest in
those businesses to the Tribes;
entity, with respect to management of the payday loan businesses.
In all other
respects the motion to compel further responses was denied. Specifically, the referee found that six
requests for all documents evidencing or reflecting any communications between
the Tribes/tribal entities and various third parties concerning “the
Transactionsâ€â€”a defined term encompassing all loans offered and advanced to
California consumers from 2002 through the date of service of the discovery
demands—although more narrowly drawn than the set one requests, which had
sought all communications without any subject matter at all, “are still too
broad, go to the merits of the case, necessarily encompass information not
relevant to jurisdiction and are beyond the scope of Ameriloan and federal law.†Multiple
requests seeking all documents describing or relating to various third parties’
relationships to the Tribes were found to be substantially duplicative of
previously denied requests from set one and were overbroad. The request for all documents identifying the
defendants’ principal place of business, including title evidence, lease
agreements and utility and telephone bills, the referee reasoned, sought
information that could more efficiently be obtained by interrogatories. Similarly, the request for all documents
identifying each bank in which defendants had deposited monies collected from
California borrowers was overbroad and burdensome. The referee noted she had previously granted
a request to compel that information in a response to interrogatories.
Eight requests
sought all documents regarding past and present contracts, agreements,
relationships, affiliations or other arrangements between the Tribes and tribal
entities and various third parties. The
referee found these categories were identical to those sought in eight requests
in set one, all of which had been denied by the court: “Only the redundant ‘constituting,’
‘referring,’ ‘concerning,’ etc. have been omitted.†Similarly, 10 requests seeking documents
reflecting payments, fees or other compensation between the Tribes and certain
third parties were identical to requests in the first set save for elimination
of “the redundant verbiage.†Two
requests regarding the tribal entities use of the Internet were essentially
identical to requests in the first set and “are still overbroad. While Defendants use of Internet advertising,
marketing, Internet billings and loan statistics may be relevant to the merits
of the case, [the Commissioner] has not demonstrated sufficiently its relevance
to the jurisdictional issues.†Four
requests seeking “a plethora of financial records concerning Transactionsâ€
substantially duplicated requests in the first set that had been denied. The referee observed, “No new or additional
basis has been shown for such extensive and burdensome discovery on the
jurisdictional inquiry. Furthermore, these
requests are overbroad.†Several other
requests were denied on substantially the same basis.
After ruling on
the specific document requests, the referee addressed sanctions, noting her
concern for the extent of duplication, the Commissioner’s “seeming disregard
for the trial judge’s rulings on earlier discovery,†and the amount of
additional time and effort the duplication had required of the referee and the
tribal entities. The referee ordered
additional briefing on MNE and SFS’s motion for sanctions.
The trial court adopted
the discovery referee’s recommendation and report in its entirety. An order to that effect was entered March 14, 2011.
4.
Motion To Set Aside or Modify the Referee’s Report
The referee was
provided further briefing on MNE and SFS’s motion for monetary sanctions. The tribal entities requested an award of
more than $80,000 in attorney fees and costs.
In her report and recommendation dated May 31, 2011 the referee recommended granting the motion in part, awarding
$59,410.77 in sanctions.
The referee first
noted that two separate provisions authorized the award of sanctions: section 2031.310, subdivision (h), making
sanctions mandatory against a party who has unsuccessfully made or opposed a
motion to compel further responses unless the court finds the unsuccessful
party “acted with substantial justification or other circumstances make
sanctions unjust,†and section 2023.030, subdivision (a), which authorizes the
imposition of monetary sanctions for misuses of the discovery process,
including persisting over objection and without substantial justification in an
attempt to obtain information or materials that are outside the scope of
permissible discovery and employing a discovery method in a manner that causes
undue burden and expense. After
summarizing her February 23, 2011 report
recommending the denial in substantial part of the Commissioner’s motion to
compel further responses to the second set of document demands, the referee
concluded the “persistent duplication
over objections and pursuit of evidence going to the merits of the case, caused
unwarranted annoyance and undue burden and expense to Defendants. The record before the Referee discloses no
substantial justification for such persistent duplication, nor is the award of
sanctions otherwise unjust.â€
The referee
found substantial undue expenses were incurred as a result of the 31 (of 49)
duplicative requests in the Commissioner’s second set of document demands and awarded
a total of slightly more than $43,000 in attorney fees and costs (rather than approximately
$65,000, as requested by MNE and SFS), including fees for the sanctions motion
itself. She also recommended that MNE
and SFS recover $15,700 as reimbursement for fees paid to the referee in
connection with the duplicative discovery and the sanctions motion.
The Commissioner
promptly objected to the referee’s sanctions report and moved to set aside or
modify the report. The Commissioner
argued the document requests at issue were appropriate in light of both the
trial court’s September 15, 2009 discovery order and our decision in
case law disfavoring sanctions in cases raising complex or novel issues, and
the award of sanctions was against public policy and unjust because the motion
had been partially successful in compelling additional responses and because newly
discovered evidence demonstrated the relevance of the documents sought. The Commissioner also asserted the amount of
sanctions recommended by the referee was unreasonable and not supported by the record.
After further
briefing and a hearing, the court sustained in part and overruled in part the
Commissioner’s objections to the referee’s report and recommendation, ruling an
award of sanctions was appropriate but reducing the amount to $34,437 (including
$15,700 for fees for the referee). The
court ruled, “The second set of requests for production was highly duplicative
of the original discovery requests which this Court determined were overly
broad on September
15, 2009.
Although this case may concern issues that are important and complex,
propounding excessively duplicative document requests is not a complex issue. . . . [The Commissioner] did not act with
substantial justification in propounding the duplicative discovery, as
determined by the referee.â€
The Commissioner
immediately appealed the sanctions order pursuant to section 904.1,
subdivision (a)(12), authorizing an interlocutory appeal from an order
directing payment of monetary sanctions exceeding $5,000. Following the Commissioner’s appeal from the
trial court’s order dismissing the enforcement action under the doctrine of
tribal sovereign immunity (B242644), we advised the parties the two matters may
be considered concurrently for purposes of oral argument and decision.
CONTENTIONS
The Commissioner contends she was
substantially justified in seeking to compel production of the documents at
issue based on this court’s opinion in Ameriloan,
the complexity of the case and the undefined scope of permissible
jurisdictional discovery and the fact the requests were propounded as a follow-up
to other, identical requests permitted by the court. She also contends the award of sanctions was
against public policy and unjust because she was partially successful in moving
to compel and because additional evidence developed after the referee’s report
substantiated the relevance of the documents sought. Finally, she contends the amount of sanctions
awarded was excessive.
DISCUSSION
1. Applicable
Law and Standard of Review
If, as here, a
motion to compel further responses to a request for inspection or demand for
production of documents is denied, monetary sanctions “shall†be imposed unless
the court finds the moving party acted “with substantial justification†or
other circumstances make imposition of sanctions unjust. (§ 2031.310, subd. (h) (formerly
subd. (d) [document production statute];
[general sanctions statute];
name="_ftnref8" title="">[8] see generally Fairmont Ins.
Co. v. Superior Court (2000) 22 Cal.4th 245, 254, fn. 3;
(2011) 200 Cal.App.4th 1424, 1434.)
The Commissioner
appears to misapprehend the applicable statutory scheme, arguing the referee
recommended imposition of sanctions “under her discretionary authority pursuant to Code of Civil Procedure section
2023.030(a)†and insisting “[n]othing in the record suggests that the Referee
imposed sanctions under the court’s mandatory authority prescribed in section
2031.310(h) based on a party’s unsuccessfully moving to compel further
responses.†To be sure, the first
sentence in section 2023.030, subdivision (a), which the referee quoted and
which the Commissioner emphasizes, provides the court “may†impose monetary
sanctions for misuses of the discovery process.
But the final sentence of that subdivision expressly states, “If a
monetary sanction is authorized by any provision of this title, 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.†(Italics added.) Section 2031.310, subdivision (h), also
quoted by the referee in her report, is such a provision mandating imposition
of monetary sanctions. Accordingly, the
trial court’s award of sanctions was mandatory unless the Commissioner had
substantial justification for filing a second, largely duplicative request for
production of documents after receiving adverse rulings on earlier attempts to
subpoena financial records from U.S. Bank and on the motion to compel further
responses to the first set of document demands.
In reviewing an
order imposing a monetary discovery sanction, the Court of Appeal in
200 Cal.App.4th at pages 1434-1435 explained, “In a variety of similar
contexts, the phrase ‘substantial justification’ has been understood to mean
that a justification is clearly reasonable because it is well grounded in both
law and fact. [Citations.] We have no reason to believe that the
Legislature intended a different meaning here.â€
(Accord, Diepenbrock v. Brown
(2012) 208 Cal.App.4th 743, 747.) The
court in Doe also held the burden is on the party who lost the discovery motion to
establish it had acted with “substantial justification,†citing, among other
authority, Evidence Code section 500:
“‘Except as otherwise provided by law, a party has the burden of proof
as to each fact the existence or nonexistence of which is essential to the
claim for relief or defense that he is asserting.’†(Doe,
at p. 1435.)
We review the
trial court’s sanctions order under the deferential abuse of discretion
standard. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th
853, 878; Diepenbrock v. Brown, supra,
208 Cal.App.4th at p. 747.) We
resolve any evidentiary conflicts most favorably to the trial court’s
ruling. (Ellis, at p. 878.)
2. The
Trial Court Acted Within Its Discretion in Awarding Sanctions
Apart from her
erroneous assertion that the award of monetary sanctions was not mandatory under
section 2031.310, subdivision (h), absent a finding of substantial
justification, the Commissioner attempts to defend her overbroad and
duplicative second set of document demands primarily by arguing the referee and
the trial court misconstrued the nature of the arm-of-the-tribe jurisdictional
inquiry we directed in Ameriloan and
improperly limited the scope of permissible discovery into the relationship
between the tribal entities and Tucker and other third parties. The Commissioner’s arguments fail for several
related reasons.
First, in
Commissioner’s request that we authorize discovery into MNE and SFS’s assertion
that profits from the cash advance businesses benefited the Miami Tribe of
Oklahoma and the Santee Sioux Nation, we expressly declined to rule on the
permissible scope of any discovery when the matter returned to the trial
court. (Ameriloan, supra, 169 Cal.App.4th at pp. 98-99.) However, to provide some guidance to the
trial court and the parties, we suggested limited discovery from the tribal
entities on the jurisdictional issue may be appropriate. The crucial word there was “limitedâ€: Nothing in our opinion regarding future
discovery supports the Commissioner’s attempt to compel responses to her
sweeping document demands essentially covering every detail of the operations
of MNE and SFS’s payday loan businesses.
Second, as we
discuss in MNE, supra, ___ Cal.App.4th ___, our mandate in Ameriloan to the trial court to conduct an evidentiary hearing on
the arm-of-the-tribe question and to consider the Trudgeon criteria to determine whether the tribal entities were
sufficiently related to their respective tribes to be protected by tribal
immunity did not require—or authorize—comprehensive discovery into the
day-to-day details of the lending businesses or the finer points of the tribal
entities’ contractual relationships with the third-party managers hired to
operate those businesses. Carefully
targeted discovery designed to develop evidence concerning actual
decisionmaking authority and the nature (or absence) of tribal oversight may
well have been permissible (as the trial court in fact ruled); wide-ranging
demands for the production of massive quantities of financial information were
not.
Third, and most
importantly, even if there was some uncertainty in Ameriloan and other appellate decisions regarding the factors to be
considered and the nature of the information relevant to resolving the
arm-of-the-tribe issue, and therefore as to the proper scope of jurisdictional discovery,
in ruling on the initial disputes regarding enforcement of the subpoena for
financial records to U.S. Bank and the first set of document demands, the trial
court was unambiguous in rejecting as overly broad the Commissioner’s expansive
discovery requests. Nonetheless, as the
referee repeatedly noted in her report recommending denial of the motion to
compel in substantial part, the Commissioner’s second set of document demands
substantially duplicated demands from the first set that had previously been ruled
improper.
title="">[9] Without any new or additional grounds for repeating the previously
rejected discovery, the Commissioner persisted in seeking “essentially
wholesale discovery of all of Defendants’ business records, including all
financial records, and more.†Such
conduct plainly constitutes misuse of the discovery process within the meaning
of section 2023.010, subdivision (a).
That the
Commissioner successfully obtained an order to compel further response to three
of the disputed document requests, while failing to do so as to 31 requests,
does not provide substantial justification for the motion or make the award of
sanctions unjust. When a discovery
motion has been granted in part and denied in part, the court properly
exercises its discretion to apportion sanctions or to award monetary sanctions
in an amount that is “reasonable under the circumstances.†(Mattco
Forge, Inc. v. Arthur Young & Co.
(1990) 223 Cal.App.3d 1429, 1437; see also Weil & Brown, Cal. Practice
Guide: Civil Procedure Before Trial (The
Rutter Group 2013) ¶ 8:1189, p. 8F-76 (rev. #1, 2009).)
Similarly
unpersuasive is the Commissioner’s argument that her discovery requests and
motion to compel were substantially justified because the trial court ultimately
admitted into evidence the disputed financial records (obtained outside of the
discovery process in this case) at the hearing on the motion to quash. Although allowing introduction of the
evidence, however, the trial court dismissed the significance of most of that
information as business minutiae, irrelevant to the arm-of-the-tribe
analysis. Moreover, the court’s
permissive approach to the breadth of evidence presented by the Commissioner
does not address the propriety of compelled disclosures from tribal entities
who asserted they were not properly subject to court process in the first
place. As to that question, the court
had already ruled the Commissioner’s discovery demands were overbroad and
unduly burdensome. The decision to
disregard the court’s rulings on earlier discovery warranted imposition of
monetary sanctions.
Finally, the
Commissioner argues sanctions in this case would not serve to correct a
“disobedient party†because she was merely seeking information she believed was
relevant and within the scope of permissible discovery as articulated in
propriety of monetary sanctions for discovery misuse. (Ellis
v. Toshiba America Information Systems, Inc., supra, 218 Cal.App.4th
at p. 878; Clement v. Alegre (2009)
177 Cal.App.4th 1277, 1286.) “‘There is
no requirement that misuse of the discovery process must be willful for a
monetary sanction to be imposed.’†(
if not ‘willful’—in seeking or resisting discovery necessitate the court’s
intervention in a dispute, the losing party presumptively should pay a sanction
to the prevailing party . . . .â€â€™â€ (Ellis,
at p. 878.)
3. The
Award of Sanctions Was Not Excessive
Even if
sanctions were properly awarded, the Commissioner contends the amount
determined by the trial court was excessive, challenging the quality and level
of detail in the evidence presented by MNE and SFS to support their request for
attorney fees and related expenses incurred as a result of the discovery
misconduct. As discussed, however, we
resolve all evidentiary conflicts in favor of the trial court’s ruling. Detailed time sheets and billing records,
although useful, are not required: “‘Although
a fee request ordinarily should be documented in great detail, it cannot be
said . . . that the absence of time records and billing statements
deprive[s] [a] trial court of substantial evidence to support an award . . . .’ [Citation.]
‘[T]he verified time statements of [an] attorney[], as [an] officer[] of
the court, are entitled to credence in the absence of a clear indication the
records are erroneous.’†(
award of attorney fees may be based on counsel’s declarations, without
production of detailed time records.†(
175 Cal.App.4th 1363, 1375; see Mardirossian
& Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269
[“there is no legal requirement that an attorney supply billing statements to
support a claim for attorney feesâ€]; Steiny
& Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th
285, 293 [“there is no legal requirement that [billing] statements be offered
in evidence,†and an “attorney’s testimony as to the number of hours worked is
sufficient evidence to support an award of attorney fees, even in the absence
of detailed time recordsâ€].)
Here, the
referee in her recommendation and report to the court reduced the amount of
fees sought by MNE and SFS, and the trial court reduced the figure (save only
for the fees paid to the discovery referee herself) once again. No abuse of discretion occurred in setting
the final monetary sanctions award. (
Systems, Inc., supra, 218
Cal.App.4th at p. 889 [“‘trial court is in the best position to determine the
reasonable value of professional services rendered in a case before it and has
broad discretion to determine the reasonable amount of an attorney fee award’â€];
Nemecek & Cole v. Horn (2012) 208
Cal.App.4th 641, 651 [“amount to be awarded as attorney fees is left to the
sound discretion of the trial court, which is in the best position to evaluate
the services rendered by an attorney in his [or her] courtroomâ€].)
DISPOSITION
The August 12, 2011 order imposing $34,437.50 in sanctions is affirmed. MNE and SFS are to recover their costs on
appeal.
PERLUSS,
P. J.
We concur:
WOODS, J.
ZELON, J.
2013 the Department of Corporations and Department of Financial Institutions
combined and became the Department of Business Oversight within the Business,
Consumer Services and Housing Agency pursuant to the Governor’s Reorganization
Plan (G.R.P.) No. 2 of 2012. (See Gov.
Code, §§ 12080.2, 12080.5.) The
Corporations Commissioner is now the Commissioner of Business Oversight.
references are to the Code of Civil Procedure unless otherwise indicated.
