Opinion
A156895
06-25-2020
PREM BIKKINA, Plaintiff and Respondent, v. JAGAN MAHADEVAN, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on June 25, 2020, be modified as follows: 1. A footnote 15 should be added to the single sentence of the disposition on page 16, "The petition for writ of mandate is denied." The new footnote 15 should read as follows:
On the night before oral argument in this case, Mahadevan requested that we take judicial notice of an April 3, 2020 "Affidavit In Support of Domesticating Foreign Judgment" filed by Bikkina's counsel in Harris County, Texas. We deny the request as irrelevant to our disposition, as Bikkina's effort to domesticate the California judgment in Texas does not affect our analysis of the issues herein. (Clark v. McCann (2015) 243 Cal.App.4th 910, 917, fn. 4.) Further, Bikkina's domestication of the California judgment in Texas does not terminate
our jurisdiction over this appeal. (See e.g., Tex. Civ. Prac. & Rem. Code Ann., § 35.006, subd. (a) [stay of enforcement of sister state judgment will be granted if an appeal of the judgment is pending in the sister state or the time for appeal has not passed]; Code Civ. Proc., § 1710.50, subd. (a)(1) [same].) Nor does it undermine the validity of the California judgment (see Rest.2d Conflict of Laws (1971) § 116, comment c ["When a judgment is rendered in one state upon the judgment of a court of another state, both judgments will remain in force until one of the judgments is discharged"]).
There is no change in judgment. The concurrently-filed request for judicial notice is denied.
The petition for rehearing is denied. Date: __________
/s/_________ P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG14717654)
Prem Bikkina obtained a money judgment against Jagan Mahadevan. To aid with enforcement of the judgment, Bikkina served interrogatories and document demands on Mahadevan pursuant to Code of Civil Procedure sections 708.020 and 708.030 of the Enforcement of Judgments Law (EJL) (§ 680.010 et seq.) and brought motions to compel further responses to this postjudgment discovery. The trial court rejected Mahadevan's argument that it lacked personal jurisdiction over him, found he served improper, boilerplate objections, and granted the motions to compel. Mahadevan appeals from these orders. It is unclear whether the trial court's orders are appealable, but we shall exercise our discretion to treat this appeal as a petition for writ of mandate and deny it.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
BACKGROUND
The history of this litigation is set forth in more detail in the unpublished opinion, Bikkina v. Mahadevan (Jan. 14, 2020, A156582), and we adopt and incorporate the facts set forth therein by reference.
Bikkina obtained a $776,000 jury verdict against Mahadevan. The parties stipulated that Bikkina would waive the punitive damages phase of trial and Mahadevan would waive his right to appeal. The trial court entered judgment on the jury verdict and subsequently entered an amended judgment adding costs and interest from the date of Mahadevan's section 998 offer. Arguing that the judgment and amended judgment were void, Mahadevan moved to vacate them under sections 473 and 663. In Bikkina v. Mahadevan, supra, A156582, this court affirmed the trial court's denial of Mahadevan's motion to vacate.
Meanwhile, while Mahadevan's motion to vacate was pending in the trial court, Bikkina served interrogatories and document demands by mail to Mahadevan at his Texas residence to aid in enforcement of the judgment. Mahadevan moved to quash this discovery under sections 418.10, 410.30, and 410.10 , contending that he could not be forced to respond because he had moved from California to Texas during the litigation. Mahadevan also served objections to the discovery requests.
On or before the last day of his or her time to plead or within any further time that the court may for good cause allow, section 418.10 allows a defendant to move to (1) quash service of summons for lack of personal jurisdiction, (2) stay or dismiss an action based on the inconvenience of the forum, and (3) dismiss an action for delay of prosecution. (§ 418.10, subd. (a).) Section 410.30 allows a defendant to move to dismiss or stay an action that should be heard in a forum outside the state. (§ 410.30, subd. (a).) Section 410.10 allows California courts to "exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." (§ 410.10.)
Bikkina moved to compel responses to the postjudgment discovery and set a hearing for February 26, 2019. Mahadevan sought to continue this hearing in light of his pending motion to quash, but the court denied the continuance. On February 8, 2019, Mahadevan opposed the motion to compel, arguing that the court lacked personal jurisdiction over him because he had moved to Texas and had no assets or ties to California; he also argued that mail service of the discovery was improper. Mahadevan requested discovery sanctions against Bikkina.
Mahadevan does not pursue his objections to the manner of service of the discovery on appeal.
The trial court denied Mahadevan's motion to quash on February 19, 2019. This court summarily denied Mahadevan's petition for a writ of mandate on February 22, 2019. The Supreme Court denied Mahadevan's subsequent petition for review on March 13, 2019.
On February 26, 2019, the trial court issued an order continuing the hearing on the motions to compel, finding that Bikkina did not file and serve a meet and confer declaration that fulfilled his statutory obligations. The court continued the hearing and ordered the parties to meet and confer by telephone by March 6, 2019, and to file a supplemental declaration detailing their meet and confer efforts by March 20, 2019 if they failed to reach an agreement. On March 28, 2019, the court granted Bikkina's motions to compel, rejecting Mahadevan's argument that it lacked personal jurisdiction over him and finding that Mahadevan served improper boilerplate objections. The court awarded Bikkina monetary sanctions and ordered Mahadevan to serve amended discovery responses in compliance with sections 2030.210 and 2031.210. Mahadevan appealed.
DISCUSSION
I. Appealability
We first address appealability. (West v. Arent Fox LLP (2015) 237 Cal.App.4th 1065, 1069.) Mahadevan contends the orders here are appealable under section 904.1, subdivision (a)(2), and Bikkina does not address the issue. However, as set forth below, appellate courts have come to different conclusions as to whether parties may appeal orders compelling responses to postjudgment discovery.
Postjudgment orders are appealable under section 904.1, subdivision (a)(2) when: (1) the issues raised by the postjudgment order are different from those arising from an appeal from the judgment; (2) the order either affects the judgment or relates to it by enforcing it or staying its execution; (3) the underlying judgment is final; and (4) the challenged order is a final determination of the parties' rights and not appealable as part of later proceedings. (See Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 & fn. 3, 652-656 (Lakin) [construing former § 904.1, subd. (b), now § 904.1, subd. (a)(2)].) Nonappealable postjudgment orders generally fall into two main categories: (1) orders that are more accurately understood as being preliminary to a later judgment; and (2) orders that pertain to the preparation of a record for use in a future appeal. (Id. at pp. 652-653.) "[T]he key test for finality . . . is whether the challenged order reflects a final determination of the rights or obligations of the parties or whether it contains language showing it is preparatory to a later ruling that will be embodied in an appealable judgment or order." (Finance Holding Co., LLC v. The American Institute of Certified Tax Coaches, Inc. (2018) 29 Cal.App.5th 663, 679 (Finance Holding).)
Courts have disagreed as to whether orders relating to postjudgment discovery are appealable under section 904.1, subdivision (a)(2). (Compare Yolanda's Inc. v. Kahl & Goveia Commercial Real Estate (2017) 11 Cal.App.5th 509, 512-513 (Yolanda's Inc.) [discussing the inconsistency in case law and finding the better approach is to treat postjudgment discovery orders as nonappealable]; Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1216 (Fox Johns) [finding an order compelling discovery from a third party not appealable, but treating the appeal as a petition for writ of mandate]; Rogers v. Wilcox (1944) 62 Cal.App.2d 978, 979 (Rogers) [an order denying a motion to quash a debtor examination is not appealable as it is merely a step reviewable only after a final order has been made]; Ahrens v. Evans (1941) 42 Cal.App.2d 738, 739 [a postjudgment order denying a motion to quash a subpoena duces tecum to a third party is not appealable] with Macaluso v. Superior Court (2013) 219 Cal.App.4th 1042, 1049 [an order compelling a third party to comply with a subpoena duces tecum and produce documents at a judgment debtor examination was appealable]; Finance Holding, supra, 29 Cal.App.5th at pp. 679-680 [disagreeing with Fox Johns and Yolanda's Inc. and finding an order compelling a third party to produce documents appealable]; SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 748-750 (SCC Acquisitions) [observing that the "authorities are inconclusive" and electing to treat an appeal from a postjudgment order compelling discovery from a judgment debtor as a petition for writ of mandate].)
The court observed that the finality of postjudgment discovery orders may differ depending on whether the order issues against a third party or the judgment debtor. The court found the requisite finality to be present where a third party is compelled to produce documents to a judgment creditor but recognized that the result might be different where the challenged order relates to the judgment debtor. (Finance Holding, supra, 29 Cal.App.5th at pp. 679-680.)
We agree with Rogers that a postjudgment discovery order against a judgment debtor is non-appealable. (Rogers, supra, 62 Cal.App.2d at p. 979.) Because such an order represents a mere preliminary step in the process of enforcing the judgment, it does "not constitute a final order" subject to appeal. (Ibid.) As noted by the court in Finance Holding, an order compelling a party's examination or production of documents "can be reasonably viewed as an intermediate step to enforcing the judgment against that judgment debtor." (Finance Holding, supra, 29 Cal.App.5th at pp. 679-680.) Accordingly, such an order is not subject to appeal, as it is appropriately viewed as " 'preliminary to later proceedings' " to enforce the judgment—such as, perhaps, the securing of a writ of attachment against one of the debtor's assets located through the discovery. (Id. at p. 680 [quoting Lakin, supra, 6 Cal.4th at p. 656].) Indeed, holding otherwise could "invite unnecessary delay and facilitate the concealment of assets." (Yolanda's Inc., supra, 11 Cal.App.5th at 513 [finding postjudgment discovery order against a third party to be nonappealable].)
Moreover, Mahadevan served boilerplate objections and the trial court instructed him to serve amended responses that comply with sections 2031.210 and 2030.210, seemingly allowing him to answer and properly object to the discovery requests where appropriate. (See §§ 2030.210, subds. (a)-(c), 2031.210, subds. (a)-(c).) Mahadevan made overbreadth and privacy objections, which he reiterates briefly on appeal, suggesting the possibility of further litigation. The specific facts of this case thus further support our conclusion that the trial court's postjudgment discovery orders are not appealable.
This brief assertion does not present a substantive issue for appellate review. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303 ["Contentions on appeal are waived by a party who fails to support them with reasoned argument and citations to authority"].)
II. The Merits
We may, however, treat Mahadevan's appeal as a petition for writ of mandate—the route taken by the court in SCC Acquisitions. (SCC Acquisitions, supra, 243 Cal.App.4th at p. 750; see Olson v. Cory (1983) 35 Cal.3d 390, 401 [conditions for treating an appeal as a writ of mandate].) So recast, his claims fail on the merits.
Mahadevan makes the following arguments on appeal: 1) the court lacked personal jurisdiction over him in what he contends was a new action seeking postjudgment discovery because he moved to Texas and had no ties to California; 2) the court erred in issuing an order requiring the parties to meet and confer while Mahadevan's writ petition was pending; 3) the underlying judgment was void and enforcement thereof was an abuse of process; and 4) under the Full Faith and Credit Clause and Baker v. General Motors Corp. (1998) 522 U.S. 222, 233, Bikkina had to domesticate and enforce his judgment in Texas. Mahadevan also seeks to overturn the denial of his request for discovery sanctions.
Within this argument, Mahadevan cites section 410.30, a forum non conveniens statute, but he does not develop a separate argument for reversal under this statute, instead claiming that due process prohibited the court from compelling a nonresident to respond to the discovery Thus, we do not address section 410.30 separately.
At the outset, we note that not all of the issues that Mahadevan raises will be addressed anew in this appeal. Mahadevan already litigated his claims that the judgment was void and that the Full Faith and Credit Clause required Bikkina to domesticate and enforce the judgment in Texas in his appeal in case No. A156582. We addressed and decided these issues against him (Bikkina v. Mahadevan, supra, A156582, at pp. 3-13), and our decision on these issues is conclusive. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) We turn then to Mahadevan's remaining arguments.
Having rejected Mahadevan's argument that the judgment is void in his prior appeal, we summarily reject his related argument in this appeal that allowing discovery to aid in the enforcement of a void judgment constitutes abuse of process for which sanctions should issue.
A. Personal Jurisdiction
Mahadevan argues that he lacked sufficient contacts with California for the trial court to exercise personal jurisdiction over him and require him to respond to the postjudgment discovery. His argument relies on the premise that the discovery commenced a new action and the trial court had to reacquire personal jurisdiction over him. It did not.
Bikkina served discovery to aid in enforcement of the judgment in California in the suit he filed against Mahadevan, not in a new action. The EJL allows the judgment creditor to serve interrogatories and document demands to aid in enforcement of a judgment in the same manner allowed in pretrial proceedings without starting an independent action. (§§ 708.020 [interrogatories] & 708.030 [document demands]; cf. 8 Witkin, Cal. Procedure (5th ed. 2020) Enforcement of Judgment, § 277 [former §§ 714 and 715 established supplemental proceedings for judgment debtor examinations that were incidental to the original action and section 708.110 continues this supplementary procedure with some changes]; Collins v. Angell (1887) 72 Cal. 513, 516 [stating a debtor examination proceeding under former section 715 is "a proceeding in the original case, auxiliary and supplementary thereto, and not a new action"]; compare §§ 708.210 et seq. [requiring the commencement of an independent action to maintain a creditor's suit].) In jurisdictions where supplemental postjudgment discovery proceedings are not independent actions, and instead are continuations of the original action, the court retains personal jurisdiction over the parties gained by the proper service of the summons and complaint in the original action. (See 30 Am. Jur. 2d, Executions & Enforcement of Judgments, § 496.)
Under former section 714, where an execution was returned unsatisfied, the judgment creditor could seek an order requiring the judgment debtor to appear and answer concerning his or her property, and, under former section 715, the creditor had the right to an examination order after an execution issued without the necessity of it being returned unsatisfied. (8 Witkin, Cal. Procedure (5th ed. 2020) Enforcement of Judgment, § 277.)
Here, the trial court retained personal jurisdiction over Mahadevan to compel his compliance with the postjudgment interrogatories and document demands after he generally appeared in the action. A general appearance operates as a consent to personal jurisdiction (2 Witkin, Cal. Procedure (5th ed. 2020) Jurisdiction, § 198), and, once such appearance is made, personal jurisdiction is not defeated by future events, such as the party's move out of state. (Maloney v. Maloney (1944) 67 Cal.App.2d 278, 280.) Jurisdiction over the parties instead "continues throughout subsequent proceedings in the action" (§410.50, subd. (b)), which are those proceedings "that are part of or incidental to the main action." (2 Witkin, supra, Jurisdiction, § 419; see also § 410.50, Judicial Council comment [jurisdiction over the parties "continues to final judgment and in subsequent proceedings incidental thereto"].)
While the parties do not cite a California case holding that personal jurisdiction continues over the judgment debtor with respect to service of postjudgment interrogatories and document demands, other courts have reached similar conclusions with respect to various postjudgment enforcement proceedings. In Global Money Management v. McDonnold (S.D. Cal. Oct. 15, 2009, No. 06cv34 BTM) 2009 WL 3352574, *3, the nonresident judgment debtor argued that the federal district court lacked personal jurisdiction over him to enforce a judgment that it issued through assignment and charging orders under sections 708.510, 708.310, and Federal Rule of Civil Procedure 69. The court rejected this argument because the judgment debtor had waived it by not challenging personal jurisdiction in the underlying litigation. (Id. at *3, *6; see also Bank Center First v. Kostelecky (2000) 609 N.W.2d 721, 721 [court retained personal jurisdiction over nonresident judgment debtor who defaulted but accepted service of process in the action and court could compel him to respond to interrogatories in a post-judgment proceeding]; cf. Arndt v. Farris (1982) 633 S.W.2d 497, 499-500 (Arndt)[rejecting the argument that a judgment creditor must serve a new petition and citation to engage in postjudgment discovery because the trial court loses jurisdiction once the judgment becomes final].)
Under Federal Rule of Civil Procedure 69, subdivision (a)(1), "A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies." (Fed. Rules Civ. Proc., rule 69(a)(1); 28 U.S.C.)
Bank Center First involved North Dakota Rule of Civil Procedure 69, which then stated, "Process to enforce a judgment for the payment of money is a writ of execution, unless the court directs otherwise. The procedures on execution and proceedings supplementary to and in aid of a judgment and in aid of execution are in accordance with the statutes of this state. In aid of the judgment or execution, the judgment creditor or a successor in interest if that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules." (Mid-Dakota Clinic, P.C. v. Kolsrud (1999) 603 N.W.2d 475, 477 [.)
Arndt involved Texas Rule of Civil Procedure 621a, which then stated, "At any time after rendition of judgment . . . the successful party may, for the purpose of obtaining information to aid in the enforcement of such judgment, initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pretrial matters, and the rules governing and related to such pretrial discovery proceedings shall apply in like manner to discovery proceedings after judgment." (Arndt, supra, 633 S.W.2d at p. 499.)
The cases Mahadevan relies on to argue that service of the postjudgment discovery started a new action and the court lacked personal jurisdiction over him therein are inapposite. National General Corp. v. Dutch Inns of America, Inc. (1971) 15 Cal.App.3d 490, 495-496, held that a provisional remedies statute allowed attachment of nonresident property regardless of whether the contract sued upon was secured or unsecured, and that statute did not violate equal protection. Levine v. Smith (2006) 145 Cal.App.4th 1131, 1135-1136, addressed the priority of jurisdiction in superior courts. The court held that, after a default judgment is entered in one county, in a subsequent proceeding requesting an order for sale of a dwelling, which must take place in the county where the dwelling is located (§ 704.750, subd. (b)), the superior court in the county where the dwelling is located may rule that the judgment is void as a defense to enforcement. (Levine v. Smith, supra, 145 Cal.App.4th at pp. 1135-1136.) Neither case addressed personal jurisdiction over a judgment debtor in postjudgment discovery proceedings similar to those at issue here.
Mahadevan contends that Goldman v. Simpson (2008) 160 Cal.App.4th 255 holds that only ministerial proceedings qualify as subsequent proceedings under section 410.50, subdivision (b). Not so. Goldman addressed whether a judgment debtor could contest a renewal judgment under section 683.150 for lack of sufficient contacts with California to confer personal jurisdiction over him when the trial court entered the renewal. Under section 410.50, subdivision (b), Goldman recognized that personal jurisdiction, once acquired, "continues to final judgment and in subsequent proceedings incidental thereto." (Id. at p. 263.) Comparing an independent action on the judgment that results in a new judgment to a renewal judgment under section 683.150, the court found that because entry of the renewal is a ministerial act that extended the enforceability of the original judgment and because the renewed judgment has no independent existence apart from the original judgment, the renewal procedure is a "subsequent proceeding" under section 410.50. (Id. at pp. 262 & fn. 3, 264.) Goldman did not turn on the ministerial nature of the renewal procedure alone, and section 410.50, subdivision (b) does not distinguish between ministerial and discretionary subsequent proceedings. (Cf. Maxwell v. Cooltech (1997) 57 Cal.App.4th 629, 633 [finding proceedings to vacate a judgment under section 473 are "subsequent proceedings" under section 410.50, subdivision (b)].)
Even if we credited Mahadevan's claim that service of the postjudgment discovery commenced a new action such that his minimum contacts with California had to be reassessed, his general appearance and participation in the underlying litigation would provide sufficient minimum contacts to require him to respond to discovery in aid of the judgment's enforcement. A court may constitutionally exercise personal jurisdiction over a nonresident when the defendant purposefully establishes "minimum contacts" in the forum and these contacts make it reasonable for the person to " 'anticipate being haled into court there' " such that traditional notions of fair play and substantial justice are not offended. (Cadle Co. II, Inc. v. Fiscus (2008) 163 Cal.App.4th 1232, 1236 (Cadle Co.); see also § 410.10.)
We find instructive the reasoning in Cadle Co., which held that a judgment debtor's contacts with California at time the judgment was entered provided sufficient minimum contacts for the court to exercise personal jurisdiction over him in a new action on the judgment. (Cadle Co., supra, 163 Cal.App.4th at pp. 1240-1241.) There, a 1992 judgment was entered against Fiscus, the judgment debtor who generally appeared in the action. (Id. at p. 1235.) In 2006, the assignee of the judgment filed an independent action, whereby the original judgment is considered " 'a debt which the judgment debtor is obligated to pay and the law implies a contract on his part to pay it.' " (Id. at p. 1238.) Fiscus moved to quash service of summons for lack of personal jurisdiction because he had lived in Arizona since 1987, he did not own property, conduct business, or maintain a residence in California, and he had had no contacts with California since the entry of the judgment. (Id. at p. 1235.) The court viewed the relevant jurisdictional contacts to be Fiscus's contacts with California when the cause of action arose, holding that Fiscus's participation in the prior litigation and the judgment against him provided sufficient minimum contacts for the court to exercise personal jurisdiction over him despite his move to Arizona. (Id. at pp. 1238, 1240-1241.)
Similarly, the right to discovery under sections 708.020 and 708.030 arose when the trial court entered judgment against Mahadevan. (See § 708.010, subd. (a) [postjudgment discovery may be used any time a money judgment is enforceable].) At that time, Mahadevan had purposefully submitted himself to the court's jurisdiction through his general appearance, and he actively litigated in this state until a money judgment was entered against him. Under these circumstances, Mahadevan has sufficient contacts with California such that it would not be unfair to require him to submit to the jurisdiction of a California court in these discovery proceedings. (Cadle Co., supra, 163 Cal.App.4th at p. 1241 [declining to adopt a rule requiring reassessment of contacts at the time of proceedings to enforce the judgment, as such a rule would "encourage judgment debtors to evade legal obligations imposed by a judgment of this state's courts by simply packing up their assets and leaving the jurisdiction"].)
B. The Discovery Meet and Confer Orders
Mahadevan next argues that the trial court erred in issuing the meet and confer orders because the proceedings were stayed under Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336 (Shaw) and section 418.10, subdivision (c) while he pursued a writ of mandate. Citing our opinion in case No. A156582, Bikkina contends that we should not address this claim because we determined the meet and confer orders were nonappealable. We found the orders were nonappealable because they were not sufficiently final, observing that the trial court had yet to decide Bikkina's motions to compel. (Bikkina v. Mahadevan, supra, A156582, at p. 14.) This writ addresses the resolution of the motions to compel. Because Mahadevan asserts that error in making the meet and confer orders is reviewable with the adjudication of the motions to compel, we will address his claim.
We find no error with the meet and confer orders because Mahadevan does not establish that the trial court proceedings were stayed. First, Shaw, supra, 83 Cal.App.4th at p. 1344, addresses the stay attendant to an appeal under section 916, subdivision (a), not a writ petition, and Mahadevan's requests for immediate stays in the writ proceedings were denied. Second, section 418.10's extension of the time to plead is inapplicable. While section 418.10 and corresponding California Rules of Court, rule 8.491 extend a defendant's time to file a responsive pleading to 10 days after the final judgment in the mandate proceeding and prevent the entry of default during this time, they address the time to plead to a complaint or cross-complaint. (§ 418.10, subds. (a), (c) and Judicial Council comment [stating the extension applies to the time to plead to the complaint or cross-complaint]; Cal. Rules of Court, rule 8.491.) As Mahadevan brought his motion long after he appeared and pled to the only complaint in this action, section 418.10 does not apply.
C. Discovery Sanctions
Mahadevan's final argument is that the trial court should have sanctioned Bikkina under section 2023.020 for failure to meet and confer and under subdivisions (a), (c), and (h) of section 2023.010 for misusing the discovery process by requiring him to respond to discovery despite his Texas residence. We review the denial of discovery sanctions for abuse of discretion. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) The power to impose discovery sanctions is subject to reversal only for arbitrary, capricious, or whimsical action. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796, superseded by statute on another point as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.)
Section 2023.020 provides, "Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct."
Sanctionable misuse of discovery includes the following: "Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery"; "[e]mploying a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense"; and "[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery." (§ 2023.010, subds. (a), (c), (h).)
The court did not abuse its discretion in denying Mahadevan's sanctions request. Mahadevan's claim that Bikkina misused the discovery process relies on his argument that the discovery violated Mahadevan's right to due process and constituted abuse of process because the court lacked jurisdiction over him as a non-resident of California. We have rejected this claim, so it provides no basis for discovery sanctions. In addition, any request for sanctions must specify the type of sanction sought and be "accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought." (§ 2023.040.) Because Mahadevan did not include a declaration setting forth the amount of monetary sanctions he sought or the supporting facts, the trial court did not err in denying him sanctions.
In the earlier appeal, we rejected Bikkina's constitutional claim that Baker v. General Motors Corp., supra, 522 U.S. at p. 233, required Bikkina to domesticate his judgment in Texas and pursue discovery according to Texas law. (Bikkina v. Mahadevan, supra, A156582, at p. 13.) --------
DISPOSITION
The petition for writ of mandate is denied.
/s/_________
BROWN, J. WE CONCUR: /s/_________
STREETER, ACTING P. J. /s/_________
TUCHER, J.