Filed 8/5/26 Romero v. Gopher Media CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MELISSA ROMERO, D086508
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2023-
00041047-CU-OE-CTL)
GOPHER MEDIA LLC et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Wendy M. Behan, Judge. Affirmed.
Munck Wilson Mandala, Anton N. Handal and Marina V. Bogorad;
Doctor Multimedia and Pamela C. Chalk for Defendants and Appellants.
Cantor Law and Zachary Cantor; Arendsen Braddock and Joshua C.
Braddock for Plaintiff and Respondent.
Melissa Romero sued her former employer, Defendants Gopher Media
LLC dba Doctor Multimedia and Prashanth Murthy, for causes of action
related to her employment and termination. In discovery, Defendants
produced a PDF document dated November 10, 2021 that reflects Murthy’s
account of a meeting that day between him and Romero, and which
Defendants identified as “evidencing” grounds for terminating Romero. We
will refer to that document as the meeting summary. Romero asked
Defendants to produce the meeting summary in its original format with
metadata. After Defendants objected, claiming attorney-client privilege and
attorney work product, Romero moved to compel its production and sought
sanctions. The trial court ultimately granted the motions and ordered
Defendants to pay $7,870.41 in discovery sanctions to Romero. Defendants
appeal the sanctions order.
First, we deny Romero’s motion to dismiss the portions of the appeal
addressing the discovery orders contained in the same ruling as the sanctions
order. We may review those discovery orders to the extent they “necessarily
affect[] the . . . order appealed from.” (Code Civ. Proc., § 906.) Here, the
discovery orders related to the meeting summary’s metadata are the basis for
the sanctions order, so we must assess the reasonableness of Defendants’
objections to producing that discovery. And because Defendants dropped
their arguments about the other discovery order contained in the same ruling
after Romero confirmed it was not a basis for the sanctions, nothing non-
appealable remains to be dismissed.
Second, Defendants have not persuaded us their opposition to
producing the meeting summary’s metadata was substantially justified on
attorney-client privilege and attorney work product grounds. Defendants
claim the metadata contains “drafts of the final document that reveal
confidential communications” between Murthy and Defendants’ counsel.
Because Defendants fail to provide any record support for this factual
assertion, they have not convinced us their opposition was well taken.
Meanwhile, the trial court’s finding that the metadata does not contain such
privileged or protected material is supported by substantial evidence. As a
result, the trial court did not abuse its discretion in ordering sanctions.
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Third, we decline Romero’s request to impose appellate sanctions
against Defendants. Appellate sanctions are reserved for only the most
egregious conduct, not simply an unmeritorious appeal.
We therefore affirm.
I.
During discovery, Defendants produced the meeting summary, which
was dated “11/10/21” and written in the first person and present tense from
Murthy’s perspective.
Defendants identified the meeting summary in response to a request
for admission about documents “evidencing that the reason [Defendants]
terminated” Romero was based on their allegation that “she inappropriately
touched or attempted to kiss or sexually harass Defendant MURTHY during
a November 10, 2021 meeting.”
Romero sought the meeting summary in its original format with
metadata “to determine the origin of this document.” The request defined
metadata to mean “data that serves to provide context or additional
information about the document, e.g.: information about the location the
document is stored, the date it was created, the last date it was
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edited/modified, the number of revisions, the title, subject, author, typeface,
enhancements, and size of the text; also describes the conditions under which
the data stored in a database was acquired, its accuracy, date, time, method
of compilation and processing, etc.”
Defendants objected, saying they would “not comply with the request,”
in part because they claimed the request sought information that is
“attorney-client/attorney work product privileged.” Instead, Defendants
produced what appears to be a screenshot of the “Document Properties” for a
PDF file titled “romero.pdf” that was created in January 2024. In response,
Romero moved to compel production and sought sanctions to compensate for
the attorney fees and costs associated with the motions.
In opposing the motions to compel, Defendants claimed “[a]ny metadata
and/or [original] format of the [meeting summary] contains both attorney-
client privileged communications and/or is based thereon as well as contains
the legal advice, conclusions, thoughts and/or impressions of Defendants’
counsel.” Defendants provided two declarations that shed more light on the
timing and circumstances of the meeting summary’s creation. Their counsel
attested that she “helped Murthy create the document [t]hat eventually
became the [meeting summary] after this case began,” years after the
November 2021 meeting. It was based, “in part,” on her “attorney-client
confidential conversations and emails Mr. Murthy sent [counsel] wherein he
conveyed what happened to him.” She and Murthy “decided that [they]
needed to put the [meeting summary] into [Romero]’s personnel file and
produce it in discovery.” Murthy submitted a declaration confirming the
same information.
Following a hearing, the court agreed with Romero that the meeting
summary’s metadata “will not reveal legal advice, client confidences,
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litigation strategy, legal theories, attorney work product, notes, comments,
communications, counsel impressions, or counsel conclusions” like
Defendants claimed. The court further found that, “[b]y producing [the
meeting summary] and relying on it as evidence to support certain claims,
any privilege to the document’s metadata is waived, especially considering
the relevant questions about the authenticity of the document, the date it
was created, the purpose of the document, and how it has been used.”
Consequently, the court granted the related motions to compel and imposed
$7,870.41 in sanctions against Defendants “for necessitating these motions.”
II.
A.
Romero moves to dismiss the appeal “to the extent” it asks us to review
the discovery orders issued at the same time as the sanctions order.
Defendants oppose because assessing the propriety of the sanctions order
“necessarily requires” us to examine “the legal and factual bases for
[Defendants’] opposition to the discovery motions—not because [Defendants]
seek to overturn the discovery orders themselves, but because the
reasonableness of [their] position is the sole issue on appeal.” We deny
Romero’s motion.
An order imposing monetary discovery sanctions is immediately
appealable if the amount exceeds $5,000, as here. (Code Civ. Proc.,
§ 904.1(a)(12).)
Romero concedes the appealability of the sanctions order and that the
motion to compel production of the meeting summary’s metadata is “related.”
But because discovery orders are not themselves appealable, she asks us to
dismiss the appeal to the extent Defendants seek review of the discovery
orders.
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Although the discovery orders are not themselves directly appealable,
we may review them to the extent they “necessarily affect[] the . . . order
appealed from.” (§ 906.) Here, Romero sought monetary sanctions for the
expenses and fees incurred “in connection with” the motions to compel the
meeting summary in original format with metadata and in an amount that
corresponded directly with the hours of work and fees expended preparing
and filing those motions. As a result, our review of the monetary sanctions
necessarily encompasses the propriety of granting the relevant motions to
compel. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 264,
276.) Consequently, we deny the motion to dismiss.
In their opening brief, Defendants also discuss the portion of the trial
court’s order addressing a motion to compel production of personnel records
because the order assessed sanctions “for necessitating these motions.”
Defendants, however, have since abandoned their arguments related to that
portion of the court’s order once Romero confirmed that she “did not seek
sanctions in connection with this motion.” (Underlining omitted.) As a
result, nothing related to that discovery order remains to be dismissed, and
we do not need to address it any further.
B.
Defendants argue they were substantially justified in opposing
production of the meeting summary in its original format with metadata on
attorney-client privilege and attorney work product grounds. We disagree, as
Defendants have not identified any factual support for their claims of
privilege and work product protection.
As relevant here, a court “shall impose a monetary sanction” against
anyone who unsuccessfully opposes a motion to compel “unless it finds that
the one subject to the sanction acted with substantial justification.”
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(§ 2031.310(h).) “Substantial justification” means “well[-]grounded in both
law and fact.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th
1424, 1434.) The losing party bears the burden to prove substantial
justification. (Id. at p. 1435.)
We review a discovery sanction ruling for abuse of discretion “and
resolve all evidentiary conflicts most favorably to the trial court’s ruling.”
(Williams v. Russ (2008) 167 Cal.App.4th 1215, 1224.) We presume the order
is correct, so appellants must “affirmatively demonstrate error.” (Ibid.)
“[W]here the evidence is in conflict, we will affirm the trial court’s findings.”
(Ibid.)
Defendants claim they were substantially justified in asserting
attorney-client privilege and attorney work product over the meeting
summary’s original format and metadata. “The party claiming the privilege
has the burden of establishing the preliminary facts necessary to support its
exercise.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725,
733; Coito v. Superior Court (2012) 54 Cal.4th 480, 499-500 [same for
attorney work product].) Defendants stumble at this first step. Defendants
never identify any factual, record support for their assertion that the meeting
summary’s original format and metadata contain “drafts of the final
document that reveal confidential communications forming the results of the
investigation memorialized in the [meeting summary].” Defendants quote a
federal case describing “‘several distinct types’” of metadata, including
substantive metadata that “‘reflects modifications to a document, such as
prior edits or editorial comments.’” (Aguilar v. Immigration and Customs
Enforcement (S.D.N.Y. 2008) 255 F.R.D. 350, 354.) But without identifying
any facts indicating the meeting summary contains this type of metadata,
Defendants fail to persuade us that their opposition to the relevant motions
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to compel was “well[-]grounded in both law and fact.” (Doe, 200 Cal.App.4th
at p. 1434, italics added.)
In its ruling, the trial court agreed instead with Romero that “the
metadata will not reveal legal advice, client confidences, litigation strategy,
legal theories, attorney work product, notes, comments, communications,
counsel impressions, or counsel conclusions like Defendant[s] state[].”
Substantial evidence supports this finding. At the hearing, Defendants’
counsel told the court she did not know what “the metadata of the original
documents” “means.” She explained she was “confused as to what it is that is
being looked for. Drafts? My e-mails with Mr. Murthy? I mean, that’s – it’s
very confusing to me and I don’t understand.” Defendants’ counsel
repeatedly stated she was “not a technical person” and was “confused” as to
what the production request sought. Counsel’s admitted lack of
understanding of metadata at least contradicts if not entirely undermines her
earlier declaration—which Defendants never cite in their appellate briefing—
that “[t]he metadata in question contains [her] thoughts, conclusions,
impressions, comments, notes, and/or client discussions therein.” And “where
the evidence is in conflict, we will affirm the trial court’s findings.”
(Williams, 167 Cal.App.4th at p. 1224.)
From the court’s finding that the meeting summary’s metadata will not
reveal any privileged communications or protected work product flows the
implied finding that Defendants’ opposition was not substantially justified.
Defendants have failed to convince us otherwise on appeal. We therefore
affirm the sanctions order.
Because we affirm based on Defendants not identifying any factual
support for their claims of privilege and work product protection, we do not
need to address the parties’ other arguments.
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C.
Romero asks us to award her appellate sanctions against Defendants’
counsel “for filing a frivolous appeal.” We deny the request.
Sanctions for a frivolous appeal are appropriate only where either the
appeal “is prosecuted for an improper motive—to harass the respondent or
delay the effect of an adverse judgment—or when it indisputably has no
merit—when any reasonable attorney would agree that the appeal is totally
and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d
637, 650.) “An appeal that is simply without merit is not by definition
frivolous and should not incur sanctions.” (Ibid.) Our Supreme Court has
cautioned that “the punishment [of appellate sanctions] should be used most
sparingly to deter only the most egregious conduct.” (Id. at p. 651.)
Although Defendants’ arguments are unconvincing, we are not
persuaded their appeal meets the high bar of frivolousness that would
warrant sanctions. We thus decline to impose appellate sanctions.
III.
We affirm the sanctions order. Romero is entitled to recover her
appellate costs. (Cal. Rules of Court, rule 8.278(a)(1).)
CASTILLO, J.
WE CONCUR:
BUCHANAN, Acting P. J.
KELETY, J.
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