Opinion
B159407.
7-28-2003
ORLYNN DEON SHELDEN et al., Plaintiffs and Appellants, v. N. MATTHEW GROSSMAN et al., Defendants and Respondents.
Davis & Heubeck, Joseph Daniel Davis and Charlotte E. Costan, for Plaintiff and Appellant OrLynn Deon Shelden and Appellant Joseph Daniel Davis. Parker, Milliken, Clark, OHara & Samuelian, Richard D. Robins, Gary Ganchrow, for Defendants and Respondents N. Matthew Grossman, Nicholas M. Brown, and Thomas L. Harner, Co-Executors of the Estate of Donald Thomas Leahy.
Attorney Joseph Daniel Davis (Davis) and his client plaintiff OrLynn Deon Shelden (Lindy) appeal an order imposing a total of $ 28,575 in sanctions upon Davis for discovery abuses. Davis represents Lindy in this action to enforce an oral promise by her stepfather to make a will leaving her certain property. After numerous discovery disputes, the matter was referred to a discovery referee, whose order was adopted by the trial court. Davis argues (1) that the order erroneously ordered the disclosure of privileged communications; (2) the order based upon the Referees Report violates due process because the court ruled without a hearing or oral argument; and (3) the sanctions against Davis are unjustified and excessive. We affirm.
Because plaintiff shares a first name with her mother, we refer to her by her nickname, and her stepfather and mother by their first names.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. The Underlying Lawsuit.
Lindy is the daughter of OrLynn Anita Leahy (OrLynn) and the stepdaughter of Donald Thomas Leahy (Donald), both of whom are deceased. OrLynn was married to Donald from 1968 until OrLynns death on July 26, 1985. Donald died on December 3, 1999. Respondents are the executors of Donalds estate (collectively Grossman) and other heirs.
Lindy contends that OrLynn and Donald made irrevocable promises to each other to leave their respective estates (excepting certain personal property) to each other upon their deaths, with the survivor of either of them to leave their estate to Lindy. OrLynn executed a will dated January 7, 1984, in accordance with this promise. Lindy contends that Donald badgered OrLynn, who was in ill health, to execute the reciprocal wills prepared by Parker, Milliken, and that he induced OrLynn to execute her will to take advantage of certain tax benefits. Nonetheless, after preparing a will after OrLynns death in accordance with his promise to her, Donalds will in effect at the time of his death left his $ 55 million estate to Donalds family members and charities.
We recite some of the allegations of the complaint and second amended complaint because drafting errors have led to much of the discovery disputes in this case. Lindys initial complaint, filed June 6, 2000, alleged that the reciprocal promise was that Donald and OrLynn would leave each other their community property, but leave their entire estates to Lindy. The complaint alleged at Paragraph 6 that "plaintiff is informed and believes and thereon alleges that Grossman and Parker, Milliken prepared reciprocal wills for Donald and OrLynn at Donalds direction with each of Donald and OrLynn leaving the majority of their respective estates, including their respective community property interests, to each other upon their deaths, and each leaving their estate to Plaintiff if the other did not survive them." (Emphasis added.) However, the complaint also alleged that Donald promised OrLynn that if she executed a reciprocal will leaving him her community and separate property, he would manage the property and leave both OrLynns community property interest and his own community share to Lindy upon his death.
Lindys first amended complaint filed August 9, 2000, made allegations substantially similar to the complaint.
In order to anticipate potential defenses to her claim, Lindy also alleged that a 1993 agreement (Release) entered into between her and Donald provided that he would place $ 500,000 in trust for her and make a present cash gift of $ 10,000 to her. The Release provided in relevant part that Donald had made unspecified gifts to Lindy and her son and had made loans in unspecified amounts to her, and "because of his love and affection for [OrLynn and Lindy] and only for such reasons," Donald would make the $ 510,000 in gifts to Lindy, impose a one-year moratorium on principal repayment with respect to the loans, and permit Lindy to retain all distributions with respect to her 2 percent interest in Leahy Associates.
The Release was apparently procured based upon Donalds representations to Lindy that he was not doing well financially because real estate was in a slump, his current wife was spending too much money, and/or that he was "broke." Lindy contends she was not aware of Donalds worth at the time of execution of the Release
The Release also provided that "Lindy understands and agrees that except for the gift which Donald promises to make to her as provided [in this Agreement] and the gift which Donald promises to make to Lindys Trust as provided [in this Agreement], neither Donald nor Donalds spouse, Carmela Leahy, has made any promises, or shall have any obligations or commitments, to make any additional gifts, bequests, or devises to Lindy, to Lindys Trust, or to [Lindys son], directly or indirectly, now or at any time in the future." The Release also provided that Lindy release Donald and Carmela Leahy from any claims she would have to gifts, bequests, devises, or inheritances from their estates. Lindy alleged that at the time the Release was entered into, Donald and Grossman knew of the existence of the reciprocal promises between Donald and OrLynn, but Donald failed to disclose this fact to Lindy.
Lindy moved to file a second amended complaint. Her basic allegations now stated that "Donald and OrLynn made irrevocable promises to each other to leave their respective estates, including their respective community and separate property interests . . . to each other upon their deaths, and each leaving their estate to Lindy if the other did not survive them." Because Lindy did not provide any explanation for the changes in the factual allegations of the second amended complaint, Grossman opposed her motion for leave to file it. In support of her motion for leave to file her second amended complaint, in order to explain the change in allegations, Lindy filed her own declaration and the declarations of attorneys Bette Epstein and Davis. Lindy stated that she understood Donalds promise to mean that he and OrLynn would leave their entire estate to the last of them to die, with the second to die to leave the entire estate to Lindy. Epstein stated that she participated in two telephone conversations with Lindy, which led Epstein to conclude that Lindy was entitled to claim the entirety of Donalds estate. However, when the complaint had been drafted, the language of paragraph 6 was not replicated throughout the complaint, with the other paragraphs only referring to community property, leading to confusion. Rather, the language "majority of their respective estates" was intended to mean both the separate and community property estates of Donald and OrLynn. Daviss declaration reiterated the substance of Epsteins declaration, pointing out that he was not a probate practitioner and consulted with Epstein and Ron Pearson (both of Crosby, Heafey, Roach & May) in order to prepare the complaint. The trial court permitted the amendment.
The second amended complaint alleged three causes of action: quasi-specific performance of contract to make a will; breach of contract; and constructive fraud. Lindy sought imposition of a constructive trust as a third-party beneficiary of the agreement between Donald and OrLynn.
Lindy alleged in the second amended complaint that OrLynn wanted to leave her entire separate and community property estate to Lindy, her only child, upon her death and did not want to execute the will prepared by the law firm. Donald told OrLynn that because management of their significant real estate holdings was beyond OrLynns capacity, if OrLynn would execute the will leaving the residence, personal property, and all of her community property interest to Donald, he would manage the properties and leave both the property bequeathed to him by OrLynn and his own separate and community property interests to Lindy upon his death.
In July 2000, Lindy filed a claim in Donalds probate proceedings seeking her share of community property interests pursuant to the allegedly breached oral agreement. In December 2000, she amended the claim to include separate property interests. The court ordered the amended claim stricken on the grounds it was untimely filed.
2. The Discovery Dispute.
Lindys deposition commenced on August 13, 2001. However, due to Daviss numerous objections to questions and instructions to Lindy not to answer questions, the deposition was halted.
(a) The Motion for Protective Order.
Grossman filed a motion for protective order to control Daviss conduct at Lindys deposition and seeking sanctions of $ 22,278. The motion was based upon Daviss alleged conduct during deposition in which he coached Lindy, made speaking objections, unilaterally recessed the deposition, and testified on Lindys behalf. Furthermore, Davis made derogatory remarks, insulted Grossmans counsel, Richard Clark (Clark), and read magazines containing pictures of scantily clad women during the deposition. Grossman contended Daviss conduct violated The Superior Court of Los Angeles County Local Rules, rule 7.12(e)(8) [counsel shall not coach witness while question pending]; The Superior Court of Los Angeles County Local Rules, rule 7.12(e)(11) [counsel shall not engage in deposition conduct that would not be allowed in the presence of a judicial officer]; and The Superior Court of Los Angeles County Local Rules, rule 7.12(e)(9) [admonition not to direct witness not to answer unless question seeks privileged information or question is manifestly calculated to harass]. PAGE CONTAINED FOOTNOTES
Although he appeals an order relating to this motion, Davis has deemed the motion not "relevant" to his appeal and omitted the motion (except for the cover page) from his appendix.
In particular, Grossman alleged that out of a 5,513-line transcript, 2,998 lines were taken up by Daviss coaching, degrading remarks, objections, self-serving speeches, and attempts to testify on Lindys behalf. Grossman contends Davis testified on Lindys behalf 71 times; that on 76 occasions he coached Lindys testimony; on 90 occasions he made unprofessional or sarcastic remarks; on 43 occasions he insulted Clark; on 38 occasions Davis instructed Lindy not to answer questions on the grounds of privilege; on 16 occasions he walked out of the deposition to confer with his client while questions were pending; and on 27 occasions he made inappropriate speaking objections. Davis was also late to the deposition, accepted phone calls during the deposition, and had Lindy read transcribed questions on his laptop computer while pointing to certain portions of the questions prior to giving her answers.
The following are some representative samples of questioning and Daviss interjections:
"MR. CLARK: And you understood your mother voluntarily signed her will of January 7th, 1984, correct? [P] A. Yes. Well, with a promise. [P] Q. No one forced her to do it? [P] MR. DAVIS: You mean did they put a gun to her head? [P] [Lindy]: She was under a lot of pressure to sign it. [P] MR. DAVIS: There will be at least two or three people [to] testify that he threatened to divorce her, very credible people. Lindy didnt learn of that fact til— [P] MR. CLARK: Is this an objection or — [P] MR. DAVIS: Im just making the record clear because I know thats the last of your goals, but Lindy was not aware of the divorce threats until after her mother died. She was aware that her mother was under — told her that she felt pressured. Now, if you want to ask questions about what was said as opposed to trying to summarize it, I guess that would be helpful. [P] . . . [P] Q. Using that term, or a very like term, did she ever say that Mr. Leahy had pressured her into leaving her community property to Mr. Leahy? [P] A. Can I clarify this with you, or just answer? [P] MR. DAVIS: Try [to] clarify if for him. He knows that nobody used the words "community property." He knows you11 say that until the sun comes up. If they didnt use those words, either one of them, or anybody, then tell him you never heard the words — [P] . . . [P] Q. Do you have an approximation of the magnitude of gifts he gave you during that some eight-year span? [P] A. From 1985 to 93 — including the — [P] MR. DAVIS: Baby cakes, dont talk out loud. Think to yourself. Whatever it is, whatever the gifts were, we know it probably doesnt get past 40,000 bucks, but whatever it is, it is. It doesnt make a lot of difference. [P] . . . [P] Q. Did it ever come to your attention as of October 1993 that the maximum amount of money a person can give in any one calendar year is $ 10,000? [P] MR. DAVIS: By the way, tax-free, if you want to be a real cheapskate that may be true, but is that what you meant to say? [P] . . . [P] . . .had nothing to do with her mothers community property in 1993. You get that idea by now, Im certain. . . . The part about werent you a little bit curious what is that - whats the relevance of a little bit curious and what does that mean? Let me do this, Im going to instruct her not to answer. Go make a motion on a little bit curious. [P] . . . [P] Q. You were trying to maximize the amount of money you would receive for your interest in Manhattan Development Corporation from Mr. Leahy in 1993; is that correct? . . . [P] MR. DAVIS: Let me object. Lets go have a discussion because he doesnt — [P] MR. CLARK: There is a question pending. [P] MR. DAVIS: I understand, and there will be a question pending when I get back. Dick [Clark], you know full well that Donald said take it or leave it and there was never any negotiations. There was never any bargaining. There was never any how much will you pay for it. It was just take it or leave it. She was desperate and she took it and you know that from the record in this case. [P] . . . [P] Q. Did you understand that your mother made specific bequests to you, specific bequests to Mr. Leahy and you got everything that was left? [P] A. I just — I can tell you what she gave me, if that comes out to — [P] MR. DAVIS: He doesnt care to — Lindy, he doesnt care what you got. Hes not the least bit — hes trying to play word games with you. Tell him what you know or what you dont. Its not very important what hes driving at.
(b) The Motion to Compel.
Grossman also filed a motion to compel answers to 64 deposition questions and for production of documents, and sought sanctions of $ 14,973.
Grossmans evidence submitted in support of the motion(s) divided the questions into several categories, set the questions forth in full, and discussed the propriety of Daviss objections. Question numbers 1 to 4 were objected to by Davis on the grounds they were vague, speculative, irrelevant, argumentative, assumed facts not in evidence or misstated testimony. Question numbers 5 to 7 were objected to on the grounds they assumed facts not in evidence, misstated testimony, called for speculation, or were argumentative. Question numbers 8 to 20 were not answered, although no specific objections were interposed. Question numbers 21 to 27, 28 to 30, 31 to 34 and 36 to 64 were objected to on privilege grounds.
We set forth in full the questions which were objected to on privilege grounds:
21. Is it your testimony that at no time did you understand Mr. Hassan ever represented you in connection with you mothers estate and affairs?
22. What was the scope of engagement for which you retained or hired Mr. Hassan at Musick, Peeler?
23. And isnt it true that you asked Mr. Hassan to conduct an investigation into the circumstances and events surrounding her mothers will?
24. Isnt it true that you retained Mr. Hassan to obtain a copy of your mothers will so as to advise you of the circumstances and events surrounding its execution?
25. You asked Mr. Hassan to obtain a copy of your mothers will, didnt you?
26. Isnt it true, Ms. Shelden that you requested Mr. Hassan to inquire into your rights and claims arising out of your mothers estate?
27. After your mother passed away, did you ask Mr. Baker to inquire into any claims you may have arising out of your mothers estate?
28. During that telephone conference call shortly after you retained Mr. Davis did you observe anyone making notes of what you were telling your attorneys regarding your claims against Mr. Leahys estate?
29. [A request that Lindy read to herself a document which apparently had not previously been provided to her.]
30. Did Mr. Saltzburg, without explaining what it is, provide anything in writing to you with respect to Mr. Grossmans September 7th agreement or the executed November 23rd, 1993 release agreement?
31. Has Mr. Baker told you that he understands Don Leahy agreed with your mother to leave Don Leahys entire estate to you on his death?
32. After your mother passed away did you ask Mr. Baker to inquire into any claims you may have arising out of your mothers estate?
33. Did you ever describe to anyone the promise between Mr. Leahy and your mother as reciprocal wills?
34. Did Mr. Dorsey Baker provide you anything in writing with respect to or surrounding your mothers death in July 1985? Or the events surrounding your mothers death, including the facts, events and circumstances alleged in your pleadings and which bring us here today?
36. Did Mr. Saltzburg explain the contents of his agreement to you?
37. Is it true or not true that you had the contents of this agreement explained to you by a lawyer of your own choosing?
38. Is it true or not true that you had an attorney of your own choosing explain to you the legal consequences of the agreement?
39. Did anyone consult you, call you or communicate with you in connection with the declaration of Bette B. Epstein filed in court?
40. Did you see any drafts or have any communications regarding its content before you signed it?
41. [No question, but discussion of objections.]
42. Did you participate in any e-mails, handwritten notes, writings or drafts pertaining to your declaration which you filed in this case?
43. Did you speak with Mr. Pearson regarding Mr. Leahys oral promises to your mother which affected you?
44. You specifically recall the event of that telephone conference call with Ms. Epstein? What was the purpose of the telephone call? Was the purpose to introduce the various attorneys to the plaintiff and to allow the plaintiff to inform her lawyers about her claims?
45. Did you understand the purpose was for you to communicate to Ms. Epstein and Mr. Pearson and Mr. Davis your claims against Mr. Leahys estate?
46. Did you understand the purpose was for you to communicate to Ms. Epstein and Mr. Pearson and Mr. Davis your claims against Mr. Leahys estate? During that telephone conference call shortly after you retained Mr. Davis did you observe anyone making notes of what you were telling your attorneys regarding your claims against Mr. Leahys estate?
47. In each of those meetings did you unequivocally state that your mother and Mr. Leahy had created mutual wills leaving the entirety of their respective estates to each other?
48. Did you consistently state to Mr. Davis and the Crosby, Heafey attorneys that the survivor of your mother and Mr. Leahy would leave their estate to you?
49. And were you in fact in Mr. Davis[s] office with Mr. Ronald Pearson on the first occasion that you had a telephone conversation with Bette Epstein? What was the purpose of that call?
50. In that telephone conference call with Bette Epstein did Mr. Davis explain that he had retained Crosby, Heafey to assist him because of their probate expertise?
51. During the first telephone conference call with Bette Epstein did you tell your attorneys what the promise was between Mr. Leahy and your mother that affected you?
52. Did you have more than one telephone conference call with Bette Epstein in which you told your attorneys what the promises were between Mr. Leahy and your mother that affected you?
53. Calling your attention to your declaration, again Paragraph 4, do you see where it states, "I told my attorneys that both my mother and my stepfather told me that they had made mutual wills."
54. Did you tell your attorneys during the first telephone conference call with Bette Epstein that both your mother and Mr. Leahy stated they had left the entire estate to each other?
55. Did you tell your lawyers in this telephone call or subsequent telephone calls that in fact your mother and Mr. Leahy told you they had made mutual wills leaving the entire estate to the other?
56. Is it true that you were certain and clear what you told your attorneys regarding the promises between your mother and Mr. Leahy?
57. Were you certain and clear on what you told your attorneys regarding the oral promises between your mother and Mr. Leahy affecting you?
58. When you prepared this declaration on April 9th 2001, you couldnt even recall precisely the words you used to explain the oral promise to your lawyers, correct?
59. When you prepared this declaration on April 9th 2001, you couldnt even recall precisely the words you used to explain the oral promise to your lawyers, correct? Can you look at Paragraph 5 of Page 2 of your declaration? You see you say "Though I cannot recall precisely the words I used in describing these facts to Ms. Epstein?" Is that true?
60. Did you ever state to anyone at any time that the promise between your mother and Mr. Leahy pertained to community property?
61. Did you describe in two separate telephone conversations to Bette Epstein the promises between Mr. Leahy and your mother affecting you?
62. I think you previously testified you have spoken to Bette Epstein telephonically on two occasions? And at all times during the time period you were speaking to Bette Epstein were you certain and clear regarding the promises between Mr. Leahy and your mother affecting you?
63. Im not asking you for what you told your lawyer or your communication. Im asking you for your state of mind.
64. Did you ever describe to anyone the promise between Mr. Leahy and your mother as reciprocal wills?
In opposition to the motion, Lindy contended that deposition question numbers 28, 29 and 39 to 63 sought privileged information pertaining to her communications with her current attorneys, Davis, Ron Pearson, and Bette Epstein. Bette Epstein was apparently responsible for a drafting error in Lindys original complaint, in which an allegation at paragraph 6 that Lindy was entitled to the majority of Donald and OrLynns estates, including community property interests, was not carried through the allegations of the complaint. In order to amend the complaint, it was necessary for Davis and Epstein to provide declarations explaining the mistake. Lindy contended that any waiver of the attorney-client privilege was limited to the specific communication at issue in amending the complaints, and that there was no implied waiver. Lindy filed her own motion to suppress the deposition.
The matter was referred to a discovery referee, retired Judge George M. Dell. On March 6, 2002, Judge Dell filed his report and recommendations with the trial court (Referees Report). Judge Dell noted that he had reviewed the parties papers and a video CD-ROM of the deposition. The Referees Report made findings and recommendations with respect to all three motions.
1. Lindys Motion to Suppress the Deposition. Prior to the referees consideration of her motion, Lindy had withdrawn the motion over objection of Grossman, who desired a ruling on the merits of the motion. The court granted her request to withdraw the motion.
2. Grossmans Motion for Protective Order. The referee found that Davis engaged in unnecessary interjections while plaintiff was being examined; made testimony on her behalf; made unauthorized objections; engaged in extensive argument during and following questions and answers; made pejorative and sarcastic comments to defendants counsel; gave plaintiff instructions on the manner and content of her responses; made comments on the completeness and accuracy of plaintiffs answers; provided plaintiff with answers; argued over gratuitous matters; used a laptop computer for the purpose of suggesting or assisting plaintiffs responses; and recessed the deposition to confer with plaintiff. The Referee also found that Davis used "crude and abusive language" in correspondence with defendants counsel. The Referee found that Daviss "conduct during plaintiffs deposition, as described above, falls below recognized professional and legal standards and has caused a wholly unnecessary waste of time and resources. . . ."
The referee recommended that Davis be ordered not to: (1) communicate with any deposition witness during the deposition except during recess, but was not to be precluded from instructing a witness not to answer after making an objection as to privilege; (2) make any interjections while a witness was being examined; (3) testify on a witnesss behalf; (4) make any unauthorized objections; (5) argue during questions; (6) make insulting, pejorative or sarcastic comments to counsel; (7) instruct a witness as to the manner and content of answers; (8) comment on the accuracy or completeness of a witnesss answers; (9) provide a witness with answers; (10) argue gratuitous matters during a witnesss examination; and (11) recess the deposition for the purpose of conferring with a witness while a question was pending. Davis was also to be ordered to make his best efforts to appear timely at all depositions.
3. Grossmans Motion to Compel Responses. The referee noted that not all of Grossmans counsels questions were "textbook models," as some were compound, of questionable relevancy, or called for opinions, conclusions, or narratives. The Referee made specific orders with respect to each of the questions:
With respect to question numbers 21 to 27 and 34, which related to the matter of consultation with Mr. Hassan and where privilege was asserted, the referee found the questions were "foundational inquiry" and therefore Lindy could have answered to the extent of Mr. Hassans representation without impinging the attorney-client privilege.
With respect to question numbers 1 to 20, the Referee ordered them answered as set forth in the Referees Report. As those questions did not involve assertions of privilege, we do not discuss them.
With respect to question numbers 31 to 33, which related to the matter of consultation with Mr. Baker, the referee found the questions related to the period before the attorney-client relationship commenced and therefore could be answered.
With respect to question numbers 36 to 38, which related to the 1993 Agreement and Lindys consultation with a lawyer concerning that agreement, the referee found the essence of Lindys complaint was the release, and therefore she had placed its contents in issue, impliedly waiving the attorney client privilege.
With respect to question numbers 39 to 64, which related to the declarations filed in support of Lindys motion to amend her complaint, the referee reviewed the deposition and found that Lindy had withdrawn any assertion of privilege. Therefore, Grossman was entitled to answers to question numbers 39 to 64.
Judge Dell relied on pages 729 and 730 of Lindys deposition, wherein Davis advised Clark [counsel for Grossman] that, "Secondly, I have made the determination with regard to her conversations with me, Pearson, and Epstein and those couple of meetings and her story to us about what her understanding of Donalds promise to her mother was, were waiving the privilege as to that and that alone, so you can ask her about those declarations, and you have three hours to do all that."
The referee made specific findings as to sanctions. The referee found that Lindys motion for suppression was made without substantial justification. After substantial time was expended by Grossman in resisting the motion, Lindy then sought to withdraw it over Grossmans objection. Reasonable attorneys fees of $ 3,575 were incurred in resisting the motion. (Code Civ. Proc., § 1023.) The Referee also found (1) Davis engaged in frivolous bad faith tactics during the deposition of Lindy; (2) Grossman properly moved for a protective order; (3) Lindys opposition was without substantial justification; and (4) reasonable attorneys fees and costs were expended in the sum of $ 15,000. Lastly, the Referee found Daviss conduct amounted to a misuse of the discovery process, which included making without substantial justification unmeritorious objections to discovery, causing undue burden and expenses, and reasonable attorneys fees and costs were incurred with respect to the motion in the sum of $ 10,000.
The referee recommended that Davis pay the following sanctions to Grossman: (1) with respect to Lindys motion to suppress, $ 3,575; (2) with respect to Grossmans motion for a protective order, $ 15,000; and (3) with respect to Grossmans motion to compel, the sum of $ 10,000. The trial court adopted the Referees Report.
Lindy filed a "Request for Hearing" and objected to the Referees Report on the grounds that it was not timely filed, was rendered without a reference order in violation of California Rules of Court, rule 244.2 and Code of Civil Procedure section 643, subdivision (a). Additionally, she substantively objected to the referees recommendations regarding certain of the questions. Lindy also filed a motion for reconsideration, which was denied on the grounds she asserted no new facts or law.
DISCUSSION
Davis contends the sanction order should be reversed because (1) the referee sustained a significant number of objections to Grossmans questions; (2) it is wrong to punish a party and her counsel for objecting to questions that violate the attorney-client privilege; and (3) the order based upon the Referees Report violates due process because the court ruled without a hearing or oral argument.
Grossman contends that (1) Davis may not appeal the $ 3,575 award on the motion to suppress because it is below the $ 5,000 limit of Code of Civil Procedure section 904.1; (2) Davis has waived his right to appeal the two other sanction awards because of his disregard for proper appellate practice by providing an incomplete record and distorting the facts; (3) the trial court did not abuse its discretion in awarding the other two sanction awards; (4) this court need not consider any privilege issues because Daviss other conduct adequately supports an award of sanctions; (5) Davis waived his right to challenge all but four of the questions on the grounds of attorney-client privilege; (6) the trial court correctly ruled on the privilege questions; and (7) the trial court had the discretion to decline to entertain oral argument. In addition, Grossman points out that in spite of being ordered to pay the sanctions within 15 days of the courts order, Davis has failed to do so and has not posted an undertaking.
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING SANCTIONS.
A. Appealability Of the Discovery Sanction Order in Its Entirety.
An immediate appeal lies from a sanctions order of $ 5,000 or more. (Code Civ. Proc., § 904.1, subds. (a)(11), (12).) Courts are split on whether the $ 5,000 rule applies to monetary discovery sanctions, as opposed to other types of sanctions. Thus, some courts hold that monetary discovery sanction orders are only reviewable on appeal from the final judgment in the action because the legislature intended to restrict appealable sanction orders to those already appealable under the collateral order doctrine. (See, e.g., Ballard v. Taylor (1993) 20 Cal.App.4th 1736, 1739; Green v. GTE. California, Inc. (1994) 29 Cal.App.4th 407, 409-410; Hanna v. Bankamerica Business Credit, Inc. (1993) 16 Cal.App.4th 913.) Other courts, however, uphold immediate appealability on the rationale that section 904.1 does not distinguish between the types of sanction "orders" appealable. (See, e.g., Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 969-970, 280 Cal. Rptr. 474; Greene v. Amante (1992) 3 Cal.App.4th 684, 690.) Furthermore, the amendment to section 904.1, which increased the lower appealability threshold from $ 750 to $ 5,000, recognized that a right of appeal lies from "orders" (Code Civ. Proc., § 904.1, subd. (a)(11)) as well as a sanctions interlocutory judgment (Code Civ. Proc., § 904.1, subd. (a)(12).) (Rao v. Campo (1991) 233 Cal. App. 3d 1557, 1568, 285 Cal. Rptr. 691.) We follow the latter line of cases, finding monetary discovery sanction orders appealable.
However, even where appealable, unrelated sanctions may not be aggregated to reach the $ 5,000 threshold, even if such sanctions are payable to the same person and were awarded at the same time. (Champion/L.B.S. Associates Development Co. v. E-Z Serve Petroleum Marketing, Inc. (1993) 15 Cal.App.4th 56, 59.) However, Champion pointed out that there may be situations where permitting separate sanction orders to reach the statutory minimum may be appropriate, such as where several discovery motions are pending and the same conduct is being sanctioned in each case. (Id. at pp. 59-60.) In the instant case, Daviss sanctioned conduct all arose out of Lindys terminated deposition, although his conduct in filing an unjustified motion to suppress was not the same as his obstructionist tactics at the deposition. Nonetheless, in order to avoid piecemeal appeals of the same discovery dispute, we find it appropriate here to permit aggregation of all three orders.
Appellants attempt to appeal the denial of the motion for reconsideration, which resulted in a sanction to Lindy of $ 7,500. Because the Notice of Appeal did not specifically refer to that Order, we decline to review it. "Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from. [Citation.]" (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) A notice of appeal that unambiguously designates a specific judgment or order from which the appeal has been taken is limited to that judgment or order. (See Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal. App. 3d 35, 46, 269 Cal. Rptr. 228.) Moreover, when several orders occurring close in time are separately appealable, each appealable order must be expressly specified. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.)
B. The Motion to Compel: Scope of the Attorney-Client Privilege.
We will not overturn the trial courts determination of the motion to compel discovery in the absence of an abuse of discretion. (Dickerson v. Superior Court (1982), 135 Cal. App. 3d 93, 98, 185 Cal. Rptr. 97.) If the privilege does not appear as a matter of law, we will not disturb the trial courts findings if there is any substantial evidence to support them. (D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729, 36 Cal. Rptr. 468, 388 P.2d 700.) The appellate court may not weigh the evidence, resolve conflicts in the evidence, or resolve conflicts in the inferences that can be drawn from the evidence. If there is substantial evidence in favor of the finding, no matter how slight it may appear in comparison with the contradictory evidence, the finding must be affirmed. (9 Witkin, Cal. Procedure (4th ed. 1997) §§ 359, 364, pp. 408, 414.)
Evidence Code section 952 provides that, "As used in this article, confidential communication between client and lawyer means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." Evidence Code section 954 provides in relevant part that "the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure."
The attorney-client privilege protects "Almost any act, done by the client in the sight of the attorney and during the consultation, [which] may conceivably be done by the client as the subject of a communication, and the only question will be whether, in the circumstances of the case, it was intended to be done as such. The client, supposedly, may make a specimen of his handwriting for the attorneys information, or may exhibit an identifying scar, or may show a secret token. If any of these acts are done as part of a communication to the attorney, and if further the communication is intended to be confidential . . ., the privilege comes into play." (City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 235-236.)
Although the privilege protects communications between the attorney and client, it does not protect underlying facts which may be referenced in the communication. (Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, 1004-1005.) The privilege does not protect the identity of the client, nor the fact that a communication took place, or the time, date and participants in the communication. (Willis v. Superior Court (1980) 112 Cal. App. 3d 277, 292, 169 Cal. Rptr. 301; State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640.)
The communication must have been made during the course of an attorney-client relationship. Actual employment of the attorney is not necessary; as stated by Evidence Code section 951, a "client" is "a person who . . . consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity." Thus, a person may discuss a problem with attorney for the purpose of obtaining advice or representation. The matter is privileged even though no actual employment follows. (In re DuPonts Estate (1943) 60 Cal. App. 2d 276, 288, 140 P.2d 866.)
As a general rule, the voluntary disclosure of a "significant" part of the communication to a third person works a waiver of the privilege. (Evid. Code, § 912, subd. (a); People v. Barnett (1998) 17 Cal.4th 1044, 1124, 954 P.2d 384.) The disclosure must reveal enough information so that the specific content of the communication is disclosed. (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 49, 265 Cal. Rptr. 801, 784 P.2d 1373.) Thus, the scope of the privilege permits a client to divulge the legal conclusions of the lawyer without waiving the privilege as to the actual contents of the communication. (Id. at p. 49.) Disclosures to agents of the attorney are covered by the privilege if disclosure to that person is "reasonably necessary for the transmission of the information." (Evid. Code, § 952.) Documents which have such an independent existence as to be subject to compulsory production while in the clients possession may be subject to disclosure even where delivered to the attorney for use in preparing the case. (Holm v. Superior Court (1954) 42 Cal.2d 500, 511.)
Evidence Code section 912, subdivision (a) provides in relevant part as follows: "Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954, . . . is waived with respect to a communication protected by such privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including the failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege."
The attorney-client privilege and attorney work product rule may be impliedly waived by placing the contents of the privileged communications at issue in the case. (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 604, 208 Cal. Rptr. 886, 691 P.2d 642; Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 129 (Wellpoint).) But the client must tender an issue involving the substance or content of a protected communication; the communication cannot merely be one of several forms of indirect evidence in a particular case. (Rockwell Internat. Corp. v. Superior Court (1994) 26 Cal.App.4th 1255, 1268.) "Where privileged information goes to the heart of the claim, fundamental fairness requires that it be disclosed for the litigation to proceed." (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 292.) The scope of an implied waiver must be "narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver." (Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal. App. 3d 1047, 1052, 233 Cal. Rptr. 825.) The party opposing the privilege bears the burden of showing that there has been an implied waiver. (Evid. Code, § 917; Wellpoint, supra, 59 Cal.App.4th at p. 124.)
Evidence Code section 917 provides: "Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client, physician-patient, psychotherapist-patient, clergyman-penitent, or husband-wife relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential."
With these principles in mind, we discuss the various questions at issue and the parties arguments.
a. Question numbers 1 to 20. These questions do not involve privilege.
b. Question numbers 21 to 27 and 34. These questions relate to Lindys retention of Mr. Hassan and her consultation with Mr. Baker. The referee incorrectly concluded these questions were foundational and that it was also permissible to ask questions about Mr. Baker because he was apparently not retained. The only "foundational inquiry" that is appropriate to this representation is whether Lindy consulted these attorneys and when. (State Farm Fire & Casualty Co. v. Superior Court, supra, 54 Cal.App.4th at p. 640.) Furthermore, it is not necessary that the attorney actually be retained in order for the privilege to attach. Questions asking whether she consulted Mr. Hassan (her attorney) or Mr. Baker (who was apparently not retained) about a particular topic violate the privilege. A view that "foundational" questions could include the substance of the communication would completely eviscerate the privilege by blurring the line between the fact of a communication and the contents of a communication. (See e.g. Maas v. Municipal Court (1985) 175 Cal. App. 3d 601, 606, 221 Cal. Rptr. 245.)
c. Question numbers 36 to 38. These questions relate to her retention of counsel to advise her about the Release. Davis argues that no implied waiver has been made with respect to Question numbers 36 to 38 because neither Lindys tendering of a cause of action nor Grossmans need to prove a defense can constitute an implied waiver. (See, e.g., Mitchell v. Superior Court, supra, 37 Cal.3d at pp. 603-605.) Furthermore, her counsels state of mind is not at issue with respect to these questions because they relate to the execution of the Release.
We agree. The issue of misrepresentation with respect to the Release pertains to statements Donald made to Lindy concerning his net worth and the fact he was "broke" at the time the Release was entered into, and Donald and/or Grossmans failure to advise Lindy of the alleged oral agreement between her parents which she alleges would have entitled her to Donalds entire estate. Because of her ignorance of the true facts, she contends she executed the Release. These facts, however, do not put the content of communications with her own counsel regarding whether she should sign the Release in issue, as she has not alleged her own counsel made misrepresentations to her concerning the Release. Under Grossmans view, every time a client signs a document after consulting an attorney, it would automatically put the execution of the document "at issue" for purposes of the privilege. (See e.g. Maas v. Municipal Court, supra, 175 Cal. App. 3d at p. 606 [defendants signing of immunity agreement under which she was obligated to the tell the truth did not waive attorney-client privilege].)
Question numbers 39, 42 to 62 and 64. These questions related to Lindys retention of Epstein and Pearson. Davis argues that there was no actual waiver because no information had been disclosed, and this lack of disclosure permits her to withdraw her waiver. Although there is no express authority for such retraction in Evidence Code section 912, he argues analogous law should permit such a waiver. (See, e.g., Pen. Code, § 1192.5 [withdrawal of guilty plea]; Code Civ. Proc., § 631, subd. (d) [withdrawal of waiver of jury trial]; Code Civ. Proc., § 2033, subd. (m) [withdrawal of admissions].) He contends his waiver was made halfway through the fourth day of Lindys deposition, and "to cut to the chase," he proposed a limited waiver of the privilege (apparently for "three hours") as to those communications regarding "her understanding of [what] Donalds promise to her mother was." He contends the offer to waive lapsed, because the waiver was "time conditioned and Grossman elected not to pursue the matter that afternoon, and did not pursue it on the fifth and last day of the deposition. This lapse resulted in no privileged information ever being disclosed. Davis argues without a disclosure of the significant part of the communication, there is no waiver. (See, e.g., Southern Cal. Gas v. Public Utilities Com, supra, 50 Cal.3d at p. 46; Travelers Insurance Companies v. Superior Court (1983) 143 Cal. App. 3d 436, 444-445, 191 Cal. Rptr. 871 (Travelers).)
While we agree that a party may give a limited waiver of the privilege, and Davis waived the privilege on Lindys behalf at the deposition, he cannot now seek to retract the waiver through a theory of a "lapsed" offer. Even if we assume his statement merely constituted an "offer" of waiver, rather than an actual waiver, the waiver was made knowingly and intentionally, and Davis cannot take advantage of the serendipitous fact that Grossman decided not to ask questions for the remainder of the fourth day of the deposition or on the fifth day of the deposition and the deposition was later recessed to permit motions caused by Daviss own conduct. Davis was the person preventing Grossman from even accepting the "offer" of waiver. We note, however, the record indicates the waiver was made as to the declarations, not just Lindys understanding of her mothers promise. Therefore, the waiver must be limited to preparation of the declarations and the drafting of the second amended complaint. Thus, Grossman cannot now go on a fishing expedition to try and discover every communication made by Lindy to Pearson and Epstein. Furthermore, even if we were to agree Davis could retract the waiver, that issue appears to be moot. By responding to Grossmans opposition to her motion for leave to file a second amended complaint, Lindy put the matter at issue by filing declarations from her attorneys. Now that the door has been opened by this attempt to explain the changes in Lindys factual allegations, it cannot be shut.
Frankly, we are mystified by the uproar over the inconsistent factual allegations in Lindys complaints. While we recognize at times such allegations may be mere shams to ward off a demurrer, that does not appear to be the case here. As a layperson, Lindy cannot be expected to understand the difference between community property, separate property, or a persons "estate" for purposes of probate. She apparently heard about the agreement from third persons and was unsure of its contents pending further discovery. Her allegations were on "information and belief," and her complaints were not verified. There was apparently unclear communication to her lawyers and between lawyers. Yet Grossmans counsel persists in treating her allegations as if they were made under oath at trial in order to inappropriately try this factually intensive case at the pleading stage.
For these reasons, Daviss reliance on Travelers is misplaced. In Travelers, the client (who was an attorney being sued for malpractice) prepared answers to interrogatories which included the fact he had discussed the pending lawsuit with his insurers representatives, including having reported the matter to the insurer and his intention in doing so. He named the representatives with whom he spoke, but did not give phone numbers, dates, or addresses. (Travelers, supra, 143 Cal. App. 3d at p. 444.) The court found this limited disclosure did not waive the privilege under Evidence Code section 912, subdivision (a) because it did not constitutes a "significant" part of the communication. Instead, the answers "at most, were preliminary and foundational - and quite vague." (Id. at p. 444.) Limited disclosure differs substantively from an attempt to retract a valid waiver.
In summary, by our calculations, Davis was correct as to the privilege on only a small portion of the total questions asked. Given that the majority of the objections were baseless, we cannot say the referee or the trial court abused its discretion in ordering sanctions.
C. The Motion for Protective Order.
At deposition, questions may relate to "any matter, not privileged, that is relevant to the subject matter . . . if . . . admissible . . . or . . . reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017, subd. (a); Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1417.) Grounds for objection to questions at deposition are limited, and generally do not excuse the deponent from answering. It is improper to instruct a witness not to answer a question on any ground other than privilege. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.) Local superior court rules limit objections to those that are "well founded and necessary for the protection of a clients interest." (Super. Ct. L.A. County, Local Rules, rule 7.12(e)(7).) Counsel should avoid coaching the deponent, direct a deponent to refuse to answer a question unless the questions seek privileged information or are "manifestly irrelevant" or "calculated to harass." (Super. Ct. L.A. County, Local Rules, rule 7.12(e)(8) and (9).) Counsel should avoid self-serving speeches and should not engage in conduct that would not be allowed in the presence of a judicial officer. (Super. Ct. L.A. County, Local Rules, rule 7.12(e)(10) and (11).) Violations of such rules may be sanctioned as abuses of the discovery process under Code of Civil Procedure section 2023.
In particular, Rule 7.12 of the Los Angeles Superior Court was put into the local rules at the request of the Los Angeles County Bar Association as a means of restoring civility in civil litigation. In this case, it does not seem to have accomplished its purpose.
In the instant case, the objections and refusals to answer were groundless and meritless and disturbed the conduct of the deposition. Counsels long-winded speeches, coaching of the deponent, testimony, condescending attitude towards his own client (calling her "baby cakes") and opposing counsel, and his rude conduct and remarks only prejudice his clients cause and demean the legal profession. The referee and trial court were well within their discretion in sanctioning Davis.
D. The Motion to Suppress the Deposition.
Davis makes no substantive argument in his briefs why sanctions on this motion, which the court found was made without "substantial justification," should be reversed. He only argues that because the orders are all part and parcel of the same course of conduct, all sanctions should be reversed. Not only will we not make his arguments for him, we disagree with his position. His baseless refusal to answer questions where no privilege was implicated, his persistently rude and obstructionist behavior, and his motion to suppress a deposition where the most egregious behavior was of his own doing, are separate and distinct matters which are separately sanctionable. We see no abuse of discretion.
E. The Sanctions are Not Excessive.
Davis argues that the sanctions should be reversed because there were legitimate reasons for objections and refusals to answer. Furthermore, the sanctions violate Lindys rights and public policy. (Rockwell Internat. Corp. v. Superior Court, supra, 26 Cal.App.4th at p. 1270.)
We reject this argument. Given the volume of unmeritorious objections and the egregious conduct at the deposition, the amount of sanctions is within the trial courts discretion, and we find no abuse here.
II. THE FACT NEITHER THE REFEREE NOR THE TRIAL COURT HELD HEARINGS DOES NOT CONSTITUTE A DUE PROCESS VIOLATION
Davis contends that because neither the discovery referee nor the trial court held a hearing on the motion to compel and motion for protective order, the trial courts order should be reversed, as it constitutes a due process violation. While conceding that the trial court is not required to hold a hearing before adopting a referees report, she contends this case falls outside the general rule and instead falls within a class of cases where a "critical matter of considerable significance" is at issue, requiring a full hearing and oral argument. (See, e.g., Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 745; TJX Companies, Inc. v. Superior Court (2001) 87 Cal.App.4th 747, 750.) She contends the discovery dispute in this case is such a matter, as it implicates the attorney-client privilege. Grossman argues that the trial court acted well within its discretion by not ordering oral argument, and that Daviss argument is not well taken because the Referees Report indicate that Judge Dell in fact held oral argument. Grossman distinguishes the cases Davis relies on by pointing out that such cases did not involve a referee; in those cases, the parties were not afforded any hearing in any forum. We find no hearing was necessary, either before the referee or in the trial court.
Nowhere does the statutory scheme governing the use of referees to hear matters, including discovery matters, require that a hearing be afforded the parties prior to the rendering of a referees decision. (Code Civ. Proc., §§ 638 et seq.) Sections 638 and 639 govern the appointment of a referee, either by consent or in those cases where the parties do not consent, and provide that a referee may be appointed "hear and determine" those matters referred to the referee. (Code Civ. Proc., §§ 638, subd. (a); 639, subd. ((a)(5) [discovery matters].) Despite the apparently conjunctive language "hear and determine," the statutory scheme as a whole discloses that no hearing is required. Code of Civil Procedure, section 643 , providing for the referees report and objections thereto, states: "Unless otherwise directed by the court, the referee[] or commissioner must report their statement of decision in writing within 20 days after the hearing, if any, has been concluded and the matter has been submitted." (Emphasis added.) Similarly, pursuant to California Rules of Court, rule 244.2, subdivision (h), defining the scope of the referees discretion on matters referred pursuant to Code of Civil Procedure section 369, the referee "is authorized to set the date, time and place for all hearings determined by the referee to be necessary, to direct the issuance of subpoenas, to preside over hearings, to take evidence, and to rule on objections, motions, and other requests made during the course of the hearing." (Emphasis added.)
Furthermore, as Davis recognizes, a trial court entering an order based upon a referees recommendation is not required to hold a hearing. (Marathon Nat. Bank v. Superior Court (1993) 19 Cal.App.4th 1256, 1261.) In Marathon, the court pointed out that a referees report is advisory, not determinative, and the trial court must independently consider the referees findings before acting upon the referees recommendations. "One way to do this is to hold a hearing but a hearing is not required as a matter of law. In an exercise of its discretion, the trial court may consider the matter as the circumstances dictate." (Id. at p. 1261.)
In Titmas, the court held that where a prima facie claim of attorney-client privilege is made, the trial judge must accord a full hearing, with oral argument, before ordering the revelation of client confidences. (Titmas v. Superior Court, supra, 87 Cal.App.4th at p. 740.) Titmas pointed out that the right to preserve attorney-client confidences is an important pretrial matter of considerable significance to the parties. (Id. at p. 744.) However, Titmas involved summary procedures held in the trial court before a substituted judge and did not involve a discovery referee; instead it involved motion practice in the trial court and related rules thereon which clearly provide for notice and a hearing. (Titmas v. Superior Court, supra, at p. 741; see also TJX Companies, supra, 87 Cal.App.4th at p. 749 [trial court may not dispose of demurrer without hearing]; Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 114-115.)
We thus reject Daviss cursory argument that because a hearing did not occur, Lindys due process rights were automatically violated. Other than complaining no hearing occurred and stating that the attorney-client privilege is a critical matter, she offers no cogent argument why her due process rights were violated by a statutory scheme that clearly provides no hearing is necessary and case law that concludes the trial court may likewise decline to hold a hearing. We will not make her arguments for her. On the other hand, the record discloses the referee undertook a lengthy, careful and considered evaluation of the motions submitted to him. Given the contentious nature of this lawsuit (as evidenced by the discovery dispute and the briefs in this appeal), it was well within the referees discretion, as well as the trial courts discretion, to conclude that a hearing would not be of any benefit and to consider the matter without holding oral argument. We find no error.
The record is unclear whether a hearing actually occurred on the referees report. The transcript in the trial court indicates that Davis advised the court serveral times no hearing occurred; Grossmans counsel did not contest these statements. However, Grossman has directed this Courts attention to a declaration filed in connection with a January 16, 2002 hearing on the motion to compel before the referee, in which counsel states they attended the hearing; Daviss moving papers indicate that the referees report issued on or about March 6, 2002 was issued more than 20 days following the submission of this matter following oral argument on January 16, 2002. The latter facts would seem to indicate a hearing did occur. In any event, whether or not a hearing occurred, as our discussion indicates, we find on error.
III. GROSSMANS MOTION FOR APPELLATE SANCTIONS IS DENIED.
Grossman requests that this court award sanctions against Davis on the basis that the opening brief is misleading, incomplete and inaccurate, the appendix omits certain key documents necessary for a resolution of this appeal, and the appeal is frivolous. Grossman argues this appeal unreasonably violates the rules of court and is frivolous. (Code of Civ. Proc., § 907; Cal. Rules of Court, rule 27(e); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 646, 183 Cal. Rptr. 508, 646 P.2d 179; Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 194.) Grossman seeks sanctions of $ 47,481. Davis argues that he complied with the rules of appellate practice, the appeal has merit, and imposing sanctions under these circumstances will chill the rights of parties to seek appellate review of their claims.
We may impose monetary sanctions on appellants who pursue an appeal that is "frivolous" or "taken solely for delay." (Code Civ. Proc., § 907; Cal. Rules of Court, rule 27(e)(1) ; In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) An appeal is frivolous where the appeal indisputably has no merit — i.e., any reasonable attorney would agree the appeal is totally and completely without merit. (In re Marriage of Flaherty , supra, at p. 650; Doran v. Magan (1999) 76 Cal.App.4th 1287, 1295.) "Nevertheless, any definition of a frivolous appeal must be read to avoid a serious chilling effect on the assertion of litigants rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions." (Doran v. Megan, supra, 76 Cal.App.4th at p. 1296.) Hence, our Supreme Court "relies on the good judgment of appellate courts to strike the proper balance and has emphasized that, in light of the competing interests, the punishment should be used most sparingly to deter only the most egregious conduct." (Ibid.)
Code of Civil Procedure section 907 provides, "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." Rule 27(e) of the California Rules of Court provides that if the appeal is frivolous or taken solely for the purpose of delay the reviewing court may impose upon offending attorneys or parties such penalties, including the withholding or imposing of costs, as the circumstances of the case and the discouragement of like conduct in the future may require.
Even when an appeal is not "frivolous" or "taken solely for delay," we may assess sanctions against a party or attorney who has included in (or omitted from) the record any matter not reasonably material to determination of the appeal or who has committed any other unreasonable violation of the California Rules of Court on appeal. (Cal. Rules of Court, rule 27(e)(1)(B) & (C); Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29; see also Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 194.) A partys brief must accurately discuss the facts and applicable law; a failure to do so waives the alleged error. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.) In some instances, egregious violations of the Rules of Court will lead to sanctions. (See, e.g., Alicia T. v. County of Los Angeles (1990) 222 Cal. App. 3d 869, 884-886, 271 Cal. Rptr. 513 [failure to address controlling authority in brief and citing of unpublished opinions warranted sanctions].)
An appendix must contain those items required to be contained in a clerks transcript (Cal. Rules of Court, rule 5.1(b)(1)(A)) and items that are "necessary for proper consideration of the issues." (Cal. Rules of Court, rule 5.1(b)(1)(B).) Certain items must not be included in an appendix, such as documents not necessary for a proper consideration of the issues. (Cal. Rules of Court, rule 5.1(b)(2).) Lastly, "filing an appendix constitutes a representation that the appendix consists of accurate copies of documents in the superior court file. The reviewing court may impose monetary or other sanctions for filing an appendix that contains inaccurate copies or otherwise violates this rule." (Cal. Rules of Court, rule 5.1(f); In re Marriage of Green (1984) 159 Cal. App. 3d 1163, 1164-1165, 206 Cal. Rptr. 286.) The basis of sanctions is the unnecessary cost to the court and opposing counsel to address briefs that violate the court rules. (Alicia T. v. County of Los Angeles, supra, 222 Cal. App. 3d at p. 869 ["substantial additional time to craft an opinion when the court rules are [flagrantly] ignored" justified sanctions]; cf. Orr v. Pacific Southwest Airlines (1989) 208 Cal. App. 3d 1467, 1474-1475, 257 Cal. Rptr. 18 [brief that is not model of appellate briefing but nonetheless "not so misleading or otherwise improper as to cause the needless expenditure of substantial time by court or counsel" not basis for sanctions; Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal. App. 3d 576, 579-580, 243 Cal. Rptr. 799 [where failure to include points and authorities in appendix prompted respondents to include them and omission not of grave nature, no sanctions awarded].)
Grossman contends a reasonable attorney would have concluded that the appeal was frivolous, pointing to Daviss failure to present any legal argument concerning the $ 15,000 sanction award on the motion for protective order or the $ 3,575 sanction on the motion to suppress. Grossman further contends that Daviss brief is misleading, as it "offers no clue that Mr. Davis was sanctioned for three sets of distinct misconduct, or that more than half of the total sanctions resulted from his own egregious behavior. . . ." Grossman points out further inaccuracies, such as the statement that Judge Dell never heard oral argument; Daviss contention that part of the sanctions awarded were awarded against Lindy when in fact all were awarded against Davis; the appendixs failure to contain Grossmans motion for a protective order (except for the cover page), with an allegedly false representation that the exhibits were omitted because they were duplicative of the motion for protective order. In addition, the appendix omits the CD-ROM of Lindys deposition and Grossmans request for judicial notice in support of the motion for protective order.
Davis counters that he intended to limit excessive paper and thus did not include pages he considered duplicative. Because this appeal arose out of a single event, the deposition, which generated three separate motions and a motion for reconsideration, Davis was not required to address them separately in order to avoid the accusation that his appeal was frivolous. Lastly, he contends because he was protecting the attorney-client privilege, punishing him for seeking to protect the privilege would chill his appellate rights.
We do not find the instant appeal merits sanctions. An attorney who is sanctioned in excess of $ 25,000 has a lot at stake; indeed, it is more than just the sting of a large monetary sum, as such sanctions are reported to the State Bar. In the instant case, $ 10,000 of the sanctions imposed related to the motion to compel, which was based upon Daviss claim the questions sought privileged material. Because of the factual nature of the instant case (Lindy relied on advice of counsel in several instances and had documents explained to her by counsel), questions potentially touching on privileged material naturally came up. However, when Grossmans counsels questions blatantly asked about the substance of potentially privileged communications, we cannot say Davis was not without any justification in objecting, even with potential arguments of express or implied waiver. Because the questions could not be answered if privileged material was divulged, objection was appropriate in some instances and in others Davis had a colorable claim that no implied waiver had occurred. Thus, with respect to the motion to compel, the appeal was not frivolous. Furthermore, while we agree a larger portion of the sanctions related to the motion to suppress and the motion for protective order and were amply supported in the record and Davis made no real argument to reverse those sanctions in his briefs, because all of the instant sanctions arose out of a single course of conduct, we cannot say he was unjustified in seeking their reversal.
With respect to alleged violations of the rules of court, we hardly find Daviss appellate advocacy or his omission of certain documents the basis for monetary sanctions in this instance. All appellate briefs are misleading to a certain degree, as they seek to persuade more than they seek to inform. As appellant, Davis bears the burden of convincing this court that error has occurred, and his failure to include necessary documents or accurately recite facts hardly advances his cause. In addition, Davis apparently misguidedly concluded that his appendix might become too voluminous if he included every page of the motion to compel. With respect to his brief, his failure to advance legal and factual arguments in his brief does not warrant sanctions, and Grossmans own brief engaged in obfuscation of the issues. Nonetheless, this court was able to decipher the issues and arguments. We deny the motion for sanctions.
Indeed, in reading the briefs, it took this court some time to figure out that only one sanction order was involved and that it consisted of three components relating to three different motions. Grossmans "introduction" in the respondents brief nowhere makes this fact clear, but instead commences with the unnecessary hyperbole that "this appeal is so fundamentally misleading and improper that it constitutes a shameful misuse of the legal process. . . ." Only after a careful review of both parties appendices was this court able to determine what occurred in the trial court. If anyone is entitled to sanctions in this matter, it is this court.
DISPOSITION
The order of the superior court is affirmed. The parties are to bear their own costs on appeal.
The petition for rehearing is denied.
We concur: PERLUSS, P. J., WOODS, J.