Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. FL062618.
Jenkins, J.
INTRODUCTION
This is the second appeal arising from the dissolution proceedings in the marriage of appellant Valerie Behrendt (wife) and respondent J. Russell Pitto (husband). Wife now appeals certain rulings in the trial court’s Order After Hearing filed on July 22, 2008. On September 2, 2009, we issued an order dismissing this appeal in part for lack of jurisdiction. Specifically, we dismissed that portion of the appeal purporting to challenge the trial court’s ruling regarding pendente lite attorney’s fees because the order of July 22, 2008 was not a final ruling on that issue. In our order, we also denied wife’s motions to augment the record and ruled as follows: “All portions of the parties’ briefs on appeal which refer to matters subsequent to, or argue legal issues not encompassed within, the trial court’s order of July 22, 2008, are hereby stricken and will not be considered by this Court for purposes of its disposition on the merits of the remaining issues on appeal.” We now address the remaining issues on appeal in accordance with our order of September 2, 2009.
In the prior appeal, we affirmed the trial court’s pendente lite order awarding wife the tax-free amount of $18,000 per month in temporary spousal support and an interim payment of $60,000 for attorney fees. (In re Marriage of Pitto and Behrendt (Aug. 25, 2009 A120858) 2009 WL 2602639 [nonpub. opn.].)
Our order of September 2, 2009, is attached and incorporated by reference.
Wife’s prior appeal challenged the trial court’s order of February 14, 2008, which ruled on matters argued at a hearing held on December 26, 2007. (In re Marriage of Pitto and Behrendt, supra, at pp. *9-10 & fn. 2.) Accordingly, we are concerned with developments between the above dates and July 22, 2008, the date of the trial court’s order challenged on this appeal.
In the course of adjudicating the issues raised in In re Marriage of Pitto and Behrendt, supra, we noted that the parties executed a Post-Marital Agreement (PMA) in June 2005 and that they anticipated the validity and enforceability of the PMA would be a contested issue in the dissolution proceedings. (Id. at p. *6.) We also noted that husband had intimated to the trial court his intent to file a motion to bifurcate the issue of the enforceability of the PMA, and the trial court had opined that the resolution of this issue would “ ‘determine the breadth of the litigation.’ ” (Id. at p. *7.)
On February 19, 2008, the trial court issued an Order Granting Husband’s Motion to Bifurcate and setting the matter for trial on May 19, 2008. On March 5, 2008, wife filed several motions, including a motion for reconsideration of the trial court’s bifurcation order of February 19, 2008. On March 13, 2008, the trial court held a hearing (March 08 hearing) on all pending motions. On March 22, 2008, the trial court issued its order after hearing (March 2008 order) on the pending motions. Three rulings in the March 2008 order are pertinent here.
First, the trial court ruled on wife’s motion for reconsideration of the court’s bifurcation order as follows: “Wife makes the argument that she believes there should first be a determination of the amount of her community property interest at the time the PMA was entered into and that ‘husband’s improper interpretation will require the court to reform the PMA.’ Those arguments are not new or different. They were made before and rejected. [¶]... [¶] Wife has provided no basis for reconsideration. Said motion is denied.”
Second, the trial court ruled that in an effort to address wife’s concerns about completing the necessary forensic accounting by the trial date and to ensure that “resources are not unnecessarily spent,” the court would “set this matter in three stages instead of two.” The court stated it would first conduct an evidentiary hearing on the following five issues: (1) whether wife entered into the PMA “freely, willingly and voluntarily”; (2) the extent of the disclosure of community assets/offer of disclosure of community assets; (3) the extent of the disclosure and valuation of separate assets/offers of information that were made to wife; (4) whether wife understood the agreement; and, (5) “what was the understanding of the parties with respect to the creation of community property (i.e. [wife’s] interpretation that the PMA confirmed her share of community [property] in existence at the time the PMA was entered into or [husband’s] interpretation that the agreement abrogated the creation of community property).” The court further stated that after taking evidence on the five issues identified for consideration in the first phase of the proceedings, the court would, “if appropriate, conduct the [second] phase, which would be an analysis of the community property and separate property at the time the [PMA] was entered into. [¶] All remaining issues will be the subject of the third and final phase [of trial].”
Third, the trial court addressed the parties’ numerous pending discovery motions. These included a motion filed by wife on March 5, 2008, seeking to quash the deposition notice served by husband upon Susan Coates, wife’s attorney during PMA negotiations. In her motion to quash of March 5, 2008, wife sought a protective order on the grounds that the deposition subpoena served on Coates sought information protected by the attorney work product and attorney-client privileges. In response to wife’s motion to quash and request for protective order, the trial court ruled in its March 2008 order that the privileges claimed did not extend to questions and documents relevant to the five topics to be addressed in the first phase of the proceedings: Specifically, the court ruled as follows: “In order to evaluate the validity and enforceability of the PMA this court must have before it the evidence surrounding the party’s [sic] entry into the agreement. This court must be able to determine whether the agreement was freely and voluntarily made with full knowledge of all facts and with a complete understanding of the effect of the transaction. (Citations.) Since [wife] is challenging the PMA she is putting these questions at issue. She cannot now claim the attorney-client privilege to cloak evidence of the issue she has tendered. The depositions of Susan Coates and Max Gutierrez shall proceed, in the order in which they were noticed.” The trial court further ordered that at their depositions Coates and Gutierrez had to provide responses relevant to the issues enumerated above and both parties also had to produce documents relevant to those issues.
On April 4, 2008, wife filed a motion for reconsideration and modification of the trial court’s March 2008 order. Wife sought clarification as to whether the waiver of attorney privilege was reciprocal. Wife also requested that the court reconsider its decision to trifurcate the trial and limit “the first phase to determine threshold issues concerning the creation or transmutation of community property.”
On April 9, 2008, wife filed a further motion for reconsideration to augment her April 4 motion for reconsideration. This motion was based on husband’s responses to interrogatories in which he asserted that the PMA is valid and enforceable and that he does not contend that the PMA is ambiguous. Wife argued that husband’s interrogatory responses established that there was no basis for reformation of the PMA, that the PMA expressed the intention of the parties, and therefore no waiver of attorney-client privilege was warranted.
On or about April 18, 2008, husband filed a memorandum of points and authorities and a declaration in response to wife’s motions for reconsideration. Husband stated he opposed the motions and requested reimbursement of attorney’s fees and costs incurred in responding to them in the amount of $3,037.50. Husband argued that wife’s motions for reconsideration established no new facts and were “nothing more than a collateral attack on the court’s prior ruling regarding bifurcation.” Husband asserted that wife’s failure to comply with Code of Civil Procedure section 1008 warranted an award of monetary sanctions in the form of attorney’s fees.
Undesignated statutory references are to the Code of Civil Procedure.
On or about May 1, 2008, husband filed a motion to compel answers from Coates at her deposition and for the appointment of a deposition referee. The motion to compel asserted that at Coates deposition on April 17, 2008, wife’s attorney announced he was representing Coates and instructed Coates not to answer any questions relating to her communications with wife. Husband stated he had incurred between $7,200 and $9,000 in attorney fees in connection with the preparation of the motion to compel. Husband requested that the court order Susan Coates to “respond to... questions related to the issues as described in the court’s Order of March 20, 2008,” and award attorney’s fees as sanctions pursuant to section 2025.480, subdivision (f).
On May 1, 2008, the trial court held a hearing on pending motions (May 2008 hearing). Regarding husband’s motion to compel, the trial court stated it had reviewed the transcript of the Coates deposition and stated that wife’s counsel was “in violation of a court order in the instructions that you are giving Ms. Coates. I understand you disagree with me, but unless you have a stay from the Court of Appeal[] that’s the Court order that you have got to live with. [¶] And not only do you violate it, you knowingly violate it, you [] flaunted the violation. [¶]... [¶]... And you may not sit in deposition testimony and knowingly and intentionally violate a court order. So you are not in compliance with discovery, you are not in compliance with the Court order, and I am going to award husband attorney’s fees in the amount of $7,500... because that deposition was a farce... and a waste.” Wife’s counsel objected that husband’s counsel had acted in a similar manner at the Gutierrez deposition and that sanctions were “one-sided.” Husband’s counsel responded that inquiry at Gutierrez’s deposition was “fully permitted consistent with your order.” The court summed up as follows: “I think what you [wife’s counsel] should do is if you have a belief that they [husband’s counsel] have violated a court order then you can bring that motion to the court, that’s not before me right now. What I have here is a clear statement by you on the record, number one, stepping in to represent Ms. Coates when there’s a clear conflict of interest, and number two, stating on the record that you are simply not going to obey the Court order. That is sanctionable behavior to me, it’s also questionably ethical behavior. And I’m going to impose a fine of, excuse me, sanctions of $7,500.”
Subsequently, the trial court set forth its rulings on the motions considered at the May 2008 hearing in an Order After Hearing filed on July 22, 2008 (Order After Hearing). Regarding wife’s above noted motions for reconsideration of the March 2008 order, the Order After Hearing ruled as follows: “[The motions] are denied. The court finds that [wife] previously filed a motion for reconsideration of the court’s February 19, 2008 Order Granting Motion to Bifurcate, which was denied for failure to establish or allege new or different facts, circumstances or law sufficient to support the requested relief under Code of Civil Procedure section 1008. Notwithstanding the further Order entered March 20, 2008, [wife] again seeks to reconsider the court’s 02/19/08 Order, without sufficient new or different facts, circumstances or law. To the extent the Motion seeks reconsideration of the 03/20/08 ruling regarding waiver of the attorney/client privilege as it relates to the bifurcated issues concerning the validity and enforceability of the [PMA], that Motion is denied. The court finds there is no basis in law or fact to reconsider the prior ruling regarding the scope of discovery and waiver of attorney/client privilege, as further delineated in the Order of March 20, 2008. The court finds [wife’s] failure to substantiate proper grounds for her motion for reconsideration justifies an award of attorney’s fees by [wife] to [husband] in the amount of $3,037 under Family Code section 271, to be paid on or before May 31, 2008.”
Regarding husband’s motion to compel answers at the deposition of Susan Coates, the Order After Hearing ruled as follows: “[The motion] is granted. The court orders that the deposition of Ms. Coates be resumed before the appointed discovery referee.... The discovery referee is authorized to rule on objections and instruct the witness to answer and to otherwise direct counsel and the parties as to the conduct of the deposition. The court orders... any information received, observed, heard, or perceived by Susan Coates [concerning the issues enumerated in the March 2008 order] is not protected by the attorney/client privilege or work product doctrine.” Also, pursuant to Code of Civil Procedure section 2025.480, subdivision (f), the trial court ordered “[wife’s] counsel, Jon-Marc Dobrin, to pay directly to [husband’s] counsel, the sum of $7,500 as a discovery sanction on or before May 31, 2008, as the court finds that [wife’s] counsel has not acted with substantial justification or there are no other circumstances which would make the imposition of the sanction unjust.” Wife filed a timely notice of appeal on August 1, 2008.
DISCUSSION
In light of our order of September 2, 2009, two issues remain for our consideration: (1) whether the trial court properly denied wife’s motions for reconsideration; and, (2) whether the trial court properly imposed sanctions.
A. Motions for Reconsideration
We conclude that wife’s appeal of the trial court’s denial of her motion for reconsideration of a discovery ruling regarding waiver of the attorney-client privilege is a non-appealable order and, accordingly, we lack jurisdictional to consider it. “ ‘ “ ‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ ” [Citation]’ (Citation.)” State ex rel. Dept. of Pesticide Regulation, supra, 165 Cal.App.4th at p. 849; Sheet Metal Workers Intern. Assn, Local Union No. 104 v. Rea (2007) 153 Cal.App.4th 1071, 1074, fn. 2. [court of appeal has “no jurisdiction to consider the merits of an appeal from a nonappealable order”].) In her opening brief, wife asserts that the orders in question “are all appealable as pre-judgment orders, pursuant to Code Civ. Pro. § 904.1(10) [Order made appealable by the Family Code] and Code Civ. Pro. § 904.1(11) [interlocutory judgment directing payment of monetary sanctions by party or attorney in an amount exceeding $5,000].”
“[A]ppealability is a jurisdictional question that must be addressed by the reviewing court, even if the parties do not question it.” State ex rel. Dept. of Pesticide Regulation v. Pet Food Express (2008) 165 Cal.App.4th 841, 850.)
We have reviewed the statutory provisions relied upon by wife and find that none allow for review of a discovery ruling. Moreover, we are unaware of any section in the Family Code, and wife cites none, which permits appeal from an order denying a motion for reconsideration of an earlier discovery order. In fact, “discovery orders in civil litigation... are made in connection with pending lawsuits which have yet to be resolved[,]... do[] not determine all of the parties’ rights and liabilities at issue in the litigation[,]” and are “not considered final, appealable orders.” State ex rel. Dept. of Pesticide Regulation, supra, 165 Cal.App.4th at p. 852; see also Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1419 [denial of a protective order is not appealable]; Bartschi v. Chico Community Memorial Hospital (1982) 137 Cal.App.3d 502, 507 [grant of protective order not appealable]; Barnes v. Molino (1980) 103 Cal.App.3d 46, 50 [order compelling compliance with a subpoena duces tecum not appealable].) Moreover, because the trial court’s underlying discovery ruling was not a final appealable order, the trial court’s denial of reconsideration of that order is similarly nonappealable. (See Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633 [denial of motion for reconsideration not appealable; Crotty v. Trader (1996) 50 Cal.App.4th 765, 768-769 [same].)
Furthermore, a party aggrieved by a trial court’s ruling on a nonappealable matter may seek review of the order by a timely writ petition. (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319 [appellate courts may consider interim rulings on petitions for an extraordinary writ].) In fact, wife filed a petition for extraordinary writ challenging the trial court’s March 2008 order and its ruling regarding waiver of the attorney-client privilege. We denied wife’s petition for extraordinary writ on May 27, 2008. (Behrendt v. Superior Court, A121493.) Thus, any further review of the trial court’s ruling on the attorney-client privilege must await an appeal from the final judgment.
B. Sanctions
The trial court’s July 2008 order imposed a total of $10,537 in sanctions against wife and her counsel. The trial court imposed $7,500 as a discovery sanction pursuant to section 2025.480, subdivision (f), and in addition imposed $3,037 as a sanction under Family Code section 271. “In choosing among its various options for imposing a discovery sanction, a trial court exercises discretion, subject to reversal only for manifest abuse exceeding the bounds of reason. (Citation.)” (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988.)
Code of Civil Procedure section 2025.480 provides in pertinent part that “[t]he court shall impose a monetary sanction... against any party, person or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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.” (§ 2025.480, subd. (f).) At oral argument, wife’s appellate counsel argued her trial counsel “acted with substantial justification” because he sincerely believed that the trial court’s ruling regarding wife’s limited waiver of the attorney-client privilege was illegal. Under such circumstances, however, trial counsel’s remedy was to promptly apply to the appellate court for writ relief and a stay of proceedings, not to simply disobey a direct order of the trial court. Accordingly, we conclude the trial court did not abuse its discretion by imposing a discovery sanction of $7,500 pursuant to section 2025.480 on the grounds that wife’s counsel willfully and flagrantly disobeyed a direct order of the court.
Sanctions in the form of attorney’s fees are warranted under Family Code section 271 for conduct that “frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” (Fam. Code, § 271, subd. (a).) “A sanctions order under [Family Code] section 271 is reviewed for abuse of discretion” and will be overturned “only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order. (Citation.) ‘We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.’ (Citation.)” (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.)
Here, we cannot say the trial court was unreasonable in imposing sanctions for wife’s repeated filing of motions challenging the trial court’s decision, made in the exercise of its supervisory powers, to bifurcate the trial in order to first consider threshold issues surrounding the validity of the PMA. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376 [noting that California courts have broad and inherent power to control matters before them in order to effect an orderly disposition of the issues presented] [reviewing and citing cases].) Therefore, we affirm the trial court’s imposition of sanctions pursuant to Family Code section 271. However, as explained below, we question whether substantial evidence exists for the amount imposed in Family Code section 271 sanctions.
In her reply brief, wife raises a due process argument that sanctions were imposed without adequate notice or opportunity to respond. We need not consider an argument raised for the first time in the reply brief. (9 Witkin, California Procedure (5th ed. 2008) Appeals, section 723, page 790 [due to “obvious considerations of fairness... the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before”]; Cold Creek Compost, Inc. v. State Farm Fire and Casualty Co. (2007) 156 Cal.App.4th 1469, 1486 [“Arguments cannot properly be raised for the first time in an appellant’s reply brief”].)
Prior to the May 2008 hearing, husband filed several motions in opposition. One of the motions, as noted above, was filed in opposition to wife’s motions for reconsideration, and requested sanctions under Family Code section 271 in the form of attorney’s fees in the amount of $3,037.50. A component of husband’s fee request was “Anticipated hearing time, including travel” of 3 hours at $450 per hour ($1,350). The same 3-hour component was listed in husband’s request for attorney fees pursuant to Family Code section 271 included in his opposition to wife’s motion for pendente lite fees. Further, the same 3-hour component was listed in husband’s request for attorney fees pursuant to Family Code section 271 included in his opposition to wife’s motion for expert fees and costs. The same 3-hour component was again listed in husband’s request for attorney fees that accompanied his motion to compel pursuant to Code of Civil Procedure section 2025.480.
As noted above, the trial court granted husband’s motion to compel and awarded associated attorney fees in the amount of $7,500 as a discovery sanction pursuant to Code of Civil Procedure section 2025.480, subdivision (f). The award of $7,500 included attorney fees of three hours for attendance at the hearing. As also noted above, husband claimed three hours court time as a component of attorney fees in his three separate requests for attorney fee sanctions under section 271. All the matters for which husband requested three hours of court time in attorney fees, however, were addressed at the same hearing on May 1, 2008. The record shows the hearing commenced at 9.30 a.m. and there is no indication it extended into the afternoon hours. Accordingly, in order to avoid any impermissible double counting, we shall reduce the attorney fees awarded under Family Code section 271 by three hours, or $1,350, from $3,037 to $1,687.
DISPOSITION
Appeal from the trial court’s denial of wife’s motions for reconsideration is dismissed for lack of jurisdiction. The trial court’s sanctions orders are affirmed. The trial court is directed to reduce the sanctions imposed under Family Code section 271 by $1,350 to a total of $1,687. Wife shall bear costs on appeal.
We concur: McGuiness, P. J., Pollak, J.
In any case, wife’s due process contention lacks support in the record. Wife received notice husband sought attorneys’ fees associated with preparing an opposition to her motion for reconsideration, via responsive declaration filed and served April 18, 2008. Wife also received notice husband sought attorney fees associated with filing his motion to compel the Coates deposition, via Motion to Compel dated April 23, 2008.
Further, when the court imposed sanctions of $3,037 under Family Code section 271 for bringing a motion for reconsideration without any new facts, wife did not raise a due process objection. Wife asserts in her reply brief, however, that the trial court violated her due process rights by imposing sanctions of $7,500 under Code of Civil Procedure section 2025 without first affording her “the opportunity to prepare and submit written arguments against such relief.” In support of this due process contention wife cites, with no pinpoint cite, Mitchell v. Superior Court (1984) 37 Cal.3d 591 (Mitchell). In Mitchell, the California Supreme Court issued a writ of mandate ordering the superior court to vacate an order compelling discovery because the plaintiff did not waive the attorney-client privilege. Mitchell does not discuss the due process required before a court may impose discovery sanctions. Under the case law, due process requires that wife receive “notice of potential sanctions and an opportunity to be heard prior to their imposition” (Lee v. An (2008) 168 Cal.App.4th 558, 565). Here, wife received notice that husband sought sanctions for his motion to compel and she had the opportunity to be heard on the matter at the May 1, 2008 hearing.