Opinion
A151888
12-11-2018
In re the Marriage of MATTHEW W. CLARKE and CLAUDIA G. AKEL. MATTHEW W. CLARKE, Plaintiff and Respondent, v. CLAUDIA G. AKEL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. FAM0120913)
This case involves a discovery dispute between the parties to a marital dissolution proceeding. The trial court initially denied, as untimely, Matthew W. Clarke's motion to compel further responses to his second set of requests for production. After reconsideration on its own motion, the trial court granted the motion to compel and ordered Claudia G. Akel to pay approximately $15,000 in sanctions (Code Civ. Proc., §§ 2023.030, subd. (a), 2031.310, subd. (h)). Akel appeals, contending the trial court erred by granting the motion to compel without holding a hearing on the merits and without hearing oral testimony or admitting declarations into evidence. We affirm.
Except in circumstances that do not apply here, "the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Code Civ. Proc., § 2031.310, subd. (h).)
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Clarke petitioned to dissolve the marriage. On September 23, 2016, he filed a motion to compel Akel to serve further responses to his second set of requests for production of documents (Motion to Compel). He also sought sanctions for fees and costs incurred in connection with the motion. The Motion to Compel contended Akel's response to Clarke's second request for production of documents was deficient in several respects. In particular, with respect to requested item Nos. 3, 7, and 13, Akel's supplemental responses failed to produce requested "counter credit" and "e-deposit" records from two financial institutions, paystubs or W-2's, loan documents, as well as credit card statements. Akel also failed to explain the absence of such items by way of a verified response compliant with Code of Civil Procedure section 2031.230. The Motion to Compel was originally calendared to be heard on December 9, 2016, in Department 23. However, after the department for hearing was corrected to Department 16, it was served again on September 27, 2016.
"A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item." (Code Civ. Proc., § 2031.230.)
Akel filed a written opposition to the Motion to Compel, but she only asserted the motion was untimely because it was served more than 45 days after her supplemental response was served. (See Code Civ. Proc., § 2031.310, subd. (c).) Clarke filed reply and supplemental reply briefs. In his supplemental brief, Clarke pointed out the deadline for filing the motion was extended five days, to September 29, 2016, because Akel served her supplemental responses by mail. (See id., § 1013, subd. (a).)
On February 27, 2017, the trial court heard the Motion to Compel. At this hearing, the trial court asked Akel's counsel to "give [her] response to [Clarke's] arguments regarding his requests for production and the request for sanctions." In response, Akel argued, primarily, that Clarke's motion was untimely and that he failed to meet and confer after the supplemental response was served. Akel also asserted she produced all documents relevant to Clarke's requests and the remaining requested documents did not exist. However, she acknowledged this position ("there isn't anything to give") was addressed only in a brief letter signed by counsel. Akel's counsel did not attempt to explain or excuse the absence of verified representations in compliance with Code of Civil Procedure section 2031.230.
The trial court denied Clarke's Motion to Compel, concluding it was untimely. The court found Akel served her supplemental responses on August 10, 2016, and the 45th day after service of those responses fell on September 24, 2016, which was a Saturday. It therefore concluded the last court day to file the Motion to Compel was September 26, 2016. The court also found Clarke filed the Motion to Compel on September 23 but did not serve it on Akel until September 27.
On March 23, 2017, Clarke filed a motion for new trial or to vacate judgment denying his motion to compel (Motion for New Trial). He asserted the trial court failed to add the required five-day extension for service by mail and failed to note a proof of service showing Akel was initially served the Motion to Compel on September 23, 2016. The September 27 proof of service merely reflected re-service to correct the department in which the motion would be heard. Clarke also filed an ex parte request to advance hearing on his Motion for New Trial to April 5, 2017. The trial court apparently granted the ex parte request, set Clarke's motion for hearing (with other pending motions) on April 5, but failed to serve notice of its decision on Akel.
On April 5, 2017, the trial court held a long cause hearing at which it addressed, among numerous other motions, Clarke's Motion for New Trial. Akel and her counsel were present. The court announced its tentative decision—to grant Clarke's Motion for New Trial because it "miss[ed]" the fact Akel's service of the supplemental responses had been by mail—and heard arguments from counsel. Akel's counsel asserted, inter alia, the court failed to provide notice of its intention to hear the matter on April 5. Akel's counsel pointed out the Motion for New Trial noticed a hearing date of June 19, 2017, and, accordingly, her responsive pleading was not due until April 7, 2017.
The trial court asked Akel's counsel, "what prejudice results to your client from me consolidating the request to hear this motion to set aside my ruling today, given that both parties have already fully briefed the issue, and you were prepared to have the court make a ruling on [the Motion to Compel] more than a month ago . . . ?" Akel's counsel replied she simply needed more time to respond.
The trial court indicated it would reconsider its prior order on its own motion, citing In re Marriage of Barthold (2008) 158 Cal.App.4th 1301. The court stated the supporting ground for reconsideration was that it had failed to note Akel's supplemental responses were served by mail. Because the deadline for filing a motion to compel was thereby extended by five days (Code Civ. Proc., § 1013, subd. (a)), Clarke's service of the Motion to Compel on September 27, 2016, was timely. However, the trial court granted Akel's counsel the time requested (until Apr. 7, 2017) to file any opposition. The trial court indicated it would thereafter render its decision in writing, noting that if it set aside its prior order, it would proceed to rule on the merits of the Motion to Compel on the basis of the pleadings and argument before it as of the original hearing date, February 27, 2017.
On April 7, 2017, Akel's counsel filed a responsive declaration and memorandum of points and authorities in opposition. Akel argued, among other things, that the trial court had no evidence on which to base its findings regarding dates of service because there was no stipulation to admit declarations attached to Clarke's pleadings, no process server testified, and Clarke never formally introduced the proofs of service into evidence.
In a written order, filed May 9, 2017, the trial court granted its sua sponte motion for reconsideration, finding its denial of Clarke's Motion to Compel had been erroneous. Because Akel served her supplemental responses on August 10, 2016, Clarke's last day to file his Motion to Compel was September 29, 2017. (Code Civ. Proc., § 1013, subd. (a).) Accordingly, Clarke's Motion to Compel was timely filed and served regardless of whether it was served on September 23 or September 27. In the same order, the trial court also granted the Motion to Compel and ordered Akel to pay Clarke's counsel $15,591 in sanctions. Akel filed a timely notice of appeal from the May 9 order.
An order compelling discovery is not an appealable order. (Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211, 215.) However, Clarke does not dispute the May 9 order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(12).
II. DISCUSSION
Akel concedes the trial court had the inherent authority to correct its calculation error by granting its sua sponte motion for reconsideration. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107; In re Marriage of Barthold, supra, 158 Cal.App.4th at pp. 1312, 1314.) She also does not challenge any part of the trial court's ruling on the merits of the discovery motion. Akel merely raises two procedural arguments: (1) the trial court lacked jurisdiction to initiate reconsideration on its own motion when a hearing on the merits of the Motion to Compel had not occurred; and (2) the trial court erred by granting reconsideration and deciding the Motion to Compel without oral testimony or a stipulation to admit written declarations. Neither argument has merit. A. Hearing on the Merits of Motion to Compel
Relying on the fact the trial court initially denied Clarke's Motion to Compel as untimely, Akel asserts there was no hearing on the merits of that motion. Taking this premise as true, Akel contends the trial court was without jurisdiction to sua sponte reconsider its ruling on the Motion to Compel because "a trial or hearing on the merits" had not taken place.
We need not consider the validity of the second part of Akel's argument because the record does not support her initial premise. Clarke served Akel with his Motion to Compel in September 2016. His moving papers included a request for sanctions and a full explanation of the inadequacy of Akel's supplemental responses to his second request for document production. Thereafter, Akel filed a written opposition to the Motion to Compel, in which she had the opportunity to argue the merits. Approximately five months later, on February 27, 2017, Akel and her counsel attended the hearing on the motion, at which she had a full opportunity to contest it. At the hearing, Akel's counsel briefly argued the substantive merits of Clarke's motion, but primarily focused on several procedural points, including timeliness. The fact Akel's counsel made a strategic choice to focus on procedural matters does not mean "she did not have the obligation or opportunity to argue on the merits." Nor does the fact the trial court initially denied the motion on procedural grounds, and did not rule on the merits, mean Akel was deprived of an opportunity to argue the merits. Akel cites no authority supporting her purported entitlement to a second bite at the apple. Our independent research has uncovered no such authority. (Cf. In re Marriage of Barthold, supra, 158 Cal.App.4th at p. 1314 ["in order to grant reconsideration on its own motion, the trial court must conclude that its earlier ruling was wrong, and change that ruling based on the evidence originally submitted"].) B. Necessity for Live Testimony in Ruling on Motion to Compel
Notably, Akel's counsel did not attempt to explain or excuse her failure to comply with Code of Civil Procedure section 2031.230. The trial court did not err in treating this as a concession.
One could argue the trial court erred by giving her only two days to oppose its sua sponte motion for reconsideration or by failing to afford her an adequately noticed hearing on that motion. (See Le Francois v. Goel, supra, 35 Cal.4th at p. 1108 ["if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion . . . it should inform the parties of this concern, solicit briefing, and hold a hearing"].) Even if we could construe Akel's opening brief as raising this contention, it would fail because she makes no effort to show prejudice. (See In re Marriage of Spector (2018) 24 Cal.App.5th 201, 217.)
Relying on Family Code section 217, Akel also maintains the trial court erred in granting the Motion to Compel because it failed to receive live testimony, and there was no stipulation or offer to admit written declarations. Clarke asserts Family Code section 217 does not apply here and that, instead, Code of Civil Procedure section 2009 governs. Family Code section 217, subdivision (a), states: "At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing . . . ." (Italics added.) Code of Civil Procedure section 2009 provides: "An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute." (Italics added.)
It appears Clarke has the better position. (See In re Marriage of Swain (2018) 21 Cal.App.5th 830, 839-840 [suggesting distinction between family law motions concerning " 'substantive relief regarding the fundamental issues in controversy' " and " 'purely procedural motions, such as those occurring in civil litigation' "]; In re Marriage of Boblitt (2014) 223 Cal.App.4th 1004, 1022 ["[n]o statute or rule of court exempts a marital dissolution proceeding from the application of the Civil Discovery Act"]; Fam. Code, § 210 [unless otherwise provided by statute or rule, "rules of practice and procedure applicable to civil actions generally . . . apply to, and constitute the rules of practice and procedure in, proceedings under [the Family Code]"].) Most motions in civil matters are decided on declarations and other evidence presented in written form. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:43, p. 9(I)-26.) Courts hearing such a motion have discretion to receive or refuse oral testimony on contested issues of fact. (Id. at ¶ 9:45, p. 9(I)-27; Eddy v. Tempkin (1985) 167 Cal.App.3d 1115, 1120-1121; Cal. Rules of Court, rule 3.1306(a)-(b).)
To support her position that Family Code section 217 applies, Akel relies on In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262 (Shimkus). Shimkus involved a postjudgment motion to terminate spousal support. At the outset of the hearing, the wife sought a ruling on her objections to the husband's declarations, but the trial court made clear "it would take oral testimony and would rule on any objections made when questions were asked." (Id. at p. 1265; see id. at pp. 1266, 1270.) After testimony was taken, the wife again referred to her declaration as containing specific evidence. However, the court replied, "the evidence in the hearing was the testimony and documents admitted, and '[n]othing else.' " (Id. at p. 1267.) On appeal, when the wife challenged the trial court's refusal to "automatically" admit the declarations, the Fourth District Court of Appeal held the trial court did not err in refusing to consider the declarations without them being formally offered into evidence at the hearing. (Id. at p. 1269; see id. at pp. 1265-1266, 1269-1270.) The court reasoned Family Code section 217 requires live testimony, "except under limited circumstances, i.e., the parties' stipulation or good cause." (Shimkus, at pp. 1269-1270.) The trial court made clear "the hearing would be conducted using live testimony" and, in response, the wife needed to either present oral testimony or seek to have her declaration admitted into evidence. (Id. at p. 1270.) In the absence of such action, the "declarations were not automatically in evidence nor did the [trial] court err in not admitting them under the circumstances of this case." (Id. at p. 1271.)
We agree with Clarke that Shimkus is distinguishable. The motion at issue here was a motion to compel discovery responses, not a motion to terminate spousal support. As such, the motion was "brought pursuant to" Code of Civil Procedure section 2031.310 rather than the Family Code. (Fam. Code, § 217.)
But even if we assume, for the sake of argument, Family Code section 217 applied to the hearing on Clarke's Motion to Compel, Shimkus remains inapposite because Akel forfeited her Family Code section 217 objection. When the Motion to Compel was argued before the trial court, the trial court made clear it was considering the motion based on the pleadings and declarations. Nevertheless, Akel raised no objection to Clarke's declarations, nor did she seek to offer oral testimony. Accordingly, Akel forfeited her Family Code section 217 objection. (See In re Marriage of Binette (2018) 24 Cal.App.5th 1119,1127 ["[Family Code] section 217 does not mandate live testimony when the parties indicate their desire to rely solely on declarations"]; Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 687 [forfeiting right to live testimony by failing to request it]; Cal. Rules of Court, rule 5.111(c)(1) ["party must file their objections in writing at least 2 court days before the time of the hearing, or any objection will be considered waived, and the declaration may be considered as evidence"].)
The trial court rejected Akel's argument on forfeiture grounds below.
"While [Family Code] section 217 requires the court to receive 'relevant' testimony that is 'within the scope of the hearing' when offered by the parties ([Fam. Code,] § 217, subd. (a)), it does not foreclose the parties from submitting evidence through other means, such as declarations, pleadings, etc. ([Fam. Code,] § 210 ['the rules of practice and procedure applicable to civil actions generally . . . apply to, and constitute the rules of practice and procedure in, proceedings under [the Family Code]']; Code Civ. Proc., § 2009 ['An affidavit may be used . . . upon a motion'].)" (In re Marriage of Binette, supra, 24 Cal.App.5th at p. 1129, italics added.) The trial court did not err in resolving Clarke's Motion to Compel on the pleadings, declarations, and supporting written evidence.
In a footnote in his respondent's brief, Clarke seeks sanctions against Akel's counsel for filing a frivolous appeal. We decline to award sanctions because Clarke has not complied with California Rules of Court, rule 8.276(b)(1), which requires a party seeking such sanctions to file a motion, supported by a declaration supporting the amount of the sanction sought.
III. DISPOSITION
The order dated May 9, 2017, is affirmed. Clarke is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278.)
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------