Filed 2/20/20 Miller v. Hobbs CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

MICHAEL MILLER,

Plaintiff,

v.

MARCIA HOBBS, as Trustee, etc., et al.,

Defendants and Respondents

NAJILA K. BRENT,

Objector and Appellant.

B285748

(Los Angeles County

Super. Ct. No. BP157208)

APPEAL from an order of the Superior Court of Los Angeles County. Clifford L. Klein, Judge. Denied.

Najila K. Brent, for Objector and Appellant.

Venable, Alex M. Weingarten, Jeffrey K. Logan, and Guido E. Toscano for Defendants and Respondents.

* * * * * *

The trial court imposed a $5,000 monetary sanction on an attorney for discovery misconduct because she served, on behalf of her client, insufficient responses to a document production and inspection request and then unsuccessfully opposed a motion to compel further responses. The underlying matter has long since settled, but the attorney now appeals the sanction. We construe the appeal as a writ petition, conclude the trial court’s sanction was well within its discretion, and deny the petition.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Paula Kent Meehan (Meehan) died on June 23, 2014. At that time, her estate was worth more than $100 million.

Three weeks before she died, Meehan executed a Fourth Amended and Restated Declaration of a Trust she had originally executed in 1994 (Fourth Amendment). As pertinent here, the Fourth Amendment (1) left Meehan’s son, Michael Miller (Michael), $13 million less whatever taxable gifts Meehan paid him after 2013, (2) left Meehan’s grandson (and Michael’s son), Courtland Miller (Courtland), $1 million “outright and free of trust” and another $1.484 million less whatever taxable gifts Meehan paid him after 2013, and (3) left the residual corpus of the estate, after several other individual and charitable gifts, to a charity Meehan founded called the Pet Care Foundation.

The Fourth Amendment had a no contest clause.

II. Procedural Background

A. Litigation on the merits

On October 30, 2014, Michael filed a petition seeking to supersede the Fourth Amendment with a holographic instrument he claimed Meehan executed six days before her death. That instrument consisted of an illegible scrawl that, according to Michael, read: “I will my mansion to my son[.] My wealth, businesses and my real properties to Michael Miller.”

Marcia Hobbs and Wendy Karzin, co-trustees of Meehan’s trust, filed a competing petition to disqualify Michael under the Fourth Amendment’s no contest clause.

On July 24, 2017, the trial court approved a settlement agreement resolving these pending petitions.

B. Discovery sanction

1. The co-trustees’ request for production and inspection of documents

Back in December 2014, and on the same day they filed their petition to disqualify Michael as a trust beneficiary, the co-trustees served Michael with a set of requests for production and inspection of documents. Specifically, the co-trustees requested 37 categories of documents and communications generally pertaining to (1) Meehan’s physical and mental health, as well as observations of such, in June 2014; (2) the holographic instrument; (3) the Fourth Amendment; (4) Michael’s inheritance; (5) any challenges to the trust by family members; and (6) the allegations in Michael’s petition. Michael’s responses were due January 14, 2015.

2. Michael’s various responses

a. Initial response

On January 13, 2015, Michael—through attorney Najila K. Brent (Brent) and attorneys from the law firm Holland and Knight—provided an initial response. The response attached no documents. Instead, the response (1) listed 18 general objections, (2) made further, specific objections to a subset of the individual 37 requests, and (3) promised, as to all the requests except one, to “produce all non-privileged and relevant documents responsive to [each] request in [Michael’s] possession, custody or control.” Although the response asserted that some of the documents were privileged, no privilege log was attached.

On February 13, 2015, Michael’s attorneys from Holland and Knight stated that Michael would produce documents as well as a privilege log in the next few weeks.

b. Disassociation of counsel

On March 10, 2015, Michael disassociated Holland and Knight as his counsel, leaving Brent as his sole counsel.

c. First Supplemental Response

Brent assisted Michael in preparing and serving a First Supplemental Response on March 5, 2015. The First Supplemental Response (1) re-incorporated all prior objections, (2) attached 168 pages of documents, about 40 of which were merely photographs of Michael with Meehan over the years, and (3) stated, in an omnibus section lumping together all 37 requests, that Michael had disclosed “all non-privileged documents responsive to [the co-trustees’] requests . . . in his possession, custody [and] control and to the extent they are available.” The First Supplemental Response also had a paragraph captioned “Privilege Log” that did not list any specific communications, but stated that “applicable privileges” applied to “[a]ll communications between [Michael] and his attorneys,” “[a]ll communications between Michael . . . and his wife” and “[a]ll communications between Michael . . . [and] any other person(s) who are subject to applicable privileges.”

Although, as noted above, the First Supplemental Response represented that Michael had disclosed all “responsive,” “non-privileged” documents, Brent demonstrated that this representation was false when she admitted to the co-trustees in a subsequent writing that Michael “is producing more documents.”

d. Second Supplemental Response

After the co-trustees wrote to Brent indicating that the First Supplemental Response was deficient because it responded to the 37 separate document requests in an omnibus response and because its privilege log was defective, Brent assisted Michael in preparing and serving a Second Supplemental Response on April 10, 2015.

Notwithstanding Brent’s representation that Michael had additional documents to produce, the Second Supplemental Response (1) again disclosed no further documents, (2) again represented that Michael had “produced all non-privileged documents,” but (a) repeated this language under 37 different headings corresponding to each of the 37 requests with newly interposed objections, and (b) narrowed the scope of his responses by limiting them to documents “related to” the Fourth Amendment and the holographic instrument. Brent also copied and pasted the prior, defective privilege log into the Second Supplemental Response.

Although, as noted above, the Second Supplemental Response represented that Michael had disclosed all “responsive,” “non-privileged” documents, Brent again demonstrated that this representation was false because she subsequently informed the co-trustees two more times in writing that Michael will “serve” or “forward” “more documents.”

When the co-trustees wrote to Brent to indicate that the Second Supplemental Response was deficient because its privilege log was still inadequate, because Michael had unilaterally (and hence impermissibly) narrowed the scope of the document requests, and because Michael had yet to disclose the documents Brent herself had promised to “serve” or “forward,” Brent responded by stating that (1) the co-trustees had waived any right to a privilege log, and (2) she was “still trying to respond” to the electronic discovery requests.

3. Motion to compel

a. The co-trustees’ motion

On May 27, 2015, the co-trustees filed a motion to compel further responses. The motion sought (1) further responses to the requests for production and inspection, and (2) monetary sanctions against Michael and Brent of $6,585 to cover the co-trustees’ attorney fees.

b. Michael’s opposition and Third Supplemental Response

On July 16, 2015, Michael—through Brent—filed an opposition. In that opposition, Brent argued that (1) she was simultaneously serving a Third Supplemental Response on the co-trustees that “moot[ed]” the motion, (2) the motion was defective because the co-trustees had not attempted to meet and confer prior to filing their motion, (3) Michael was entitled to a protective order and sanctions, and (4) the co-trustees and their attorneys had “dispens[ed] false information, fabricated statements, and false declarations,” were laboring under “conflict[s] of interests” and were engaged in “Rambo[-]style” “litigation tactics” to “harass.” Brent also argued that imposing monetary sanctions would be a “travesty of justice.”

Brent did not include the Third Supplemental Response with Michael’s opposition. Further, notwithstanding Brent’s representation that Michael had additional documents to produce, the Third Supplemental Response served on the co-trustees (1) disclosed no further documents, (2) re-incorporated all prior objections and re-asserted that all relevant, responsive documents had been disclosed, and (3) attached a one-page privilege log that listed 24 emails, sent between May 24, 2014 and June 17, 2014, between Michael and an unidentified person named “Mitchell M. Gaswirth” as being subject to the attorney-client privilege.

c. Fourth Supplemental Response and hearing on motion

Hours before the July 27, 2015 hearing on the co-trustees’ motion to compel, Brent filed a supplemental declaration with the trial court indicating that she had served a Fourth Supplemental Response on the co-trustees that morning. The Fourth Supplemental Response (1) repeated the responsive language in the Third Supplemental Response except without the additional narrowing, (2) disclosed an additional nine pages of documents along with a PDF file containing the previously disclosed 168 pages, and (3) re-asserted objections, including based on privilege.

At the outset of the hearing, the trial court noted the same-day filing and indicated it had not had time to read it. However, the court indicated that it had read the “moving papers” and asked questions based on the content of Michael’s and Brent’s opposition. Brent repeatedly stated that she had “responded [to] everything,” that she had disclosed “everything [her] client gave [her],” that there was “nothing left to produce” and that her “privilege log” was “complete.”

d. Ruling

At the conclusion of the hearing and in a further written order, the trial court granted the co-trustees’ motion to compel further responses. The court also imposed monetary sanctions of $5,000 on Brent, to be paid jointly and severally by Brent and Michael.

e. Post-order objections

Following the trial court’s oral ruling, Brent filed two different sets of objections: (1) she filed an objection to the co-trustees’ proposed order for the court, and (2) she filed objections after the trial court filed its written order. In the first set of objections, Brent asked the trial court to “reconsider” its ruling, going on to (1) reiterate that the monetary sanction award was a “travesty of justice,” (2) argue that her non-compliance with co-trustees’ discovery request was “substantially justified,” and (3) complain that the trial court did not read her filings. In the second set of objections, Brent (1) raised 10 different objections to the co-trustees’ discovery requests, (2) reiterated that the monetary sanction was a “travesty of justice,” and (3) accused the co-trustees of lying under oath, of having unclean hands, and of making a frivolous motion to compel.

C. Appeal

More than two years later, but within 60 days of a written settlement among several beneficiaries and the co-trustees, Brent filed a notice of appeal challenging the imposition of the discovery sanction.

DISCUSSION

Brent argues that the trial court erred in imposing the monetary sanction against her.

I. Jurisdiction

As a preliminary matter, we must independently assess whether we have jurisdiction to entertain this appeal. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 818-820 (Berg) [independently reviewing issue of appealability]; Lester v. Lennane (2000) 84 Cal.App.4th 536, 556-561 [same]; see also Olson v. Cory (1983) 35 Cal.3d 390, 398 [“since the question of appealability goes to our jurisdiction, we are duty bound to consider it on our own motion”].) Sanctions orders are subject to immediate appeal only if they exceed $5,000. (Code Civ. Proc., § 904.1, subd. (a)(12); Guillemin v. Stein (2002) 104 Cal.App.4th 156, 161.) In all other cases, they are appealable only after “entry of final judgment in the main action” or, in an appellate court’s discretion, by “petition for an extraordinary writ.” (§ 904.1, subd. (b).) It is unclear whether the settlement agreement here gives rise to a final judgment: On the one hand, it purports “to settle all of the issues set forth in [the] various petitions and motions now pending” and to “discharge[]” the co-trustees “from any and all liability” under the agreement; on the other hand, it necessarily only reaches the disputes between the subset of beneficiaries in the Fourth Amendment who elected to settle, and Brent’s appeal may for that reason be premature. We need not resolve this ambiguity, however, because we have the discretion to construe this fully briefed appeal as a writ petition and to address its merits as such. (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 974; Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1310.) We choose to exercise our discretion in this case.

II. Propriety of Monetary Sanction for Discovery Violation(s)

The Civil Discovery Act (§ 2016.010 et seq.) (the Act) grants a trial court the discretion to “impose a monetary sanction” upon “one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both” (§ 2023.030, subd. (a)), and defines “misuse of the discovery process” to include “[f]ailing to respond . . . to an authorized method of discovery,” “[m]aking . . . an unmeritorious objection to discovery” “without substantial justification,” and “[m]aking an evasive response to discovery” (§ 2023.010, subds. (d), (e) & (f)). The Act makes such a sanction mandatory “against any party, person, or attorney who unsuccessfully . . . opposes a motion to compel further response[s]” unless the party to be sanctioned “acted with substantial justification or . . . other circumstances make the imposition of the sanction unjust” (§§ 2031.310, subd. (h) [document production], 2031.320, subd. (b) [demand for inspection]; see also id., 2023.010, subd. (h) [defining “misuse[] of the discovery process” to include “[o]pposing, unsuccessfully and without substantial justification, a motion to compel”]; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423-1424 [noting mandatory nature of sanctions in this circumstance]). We review a trial court’s imposition of monetary sanctions for an abuse of discretion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 401 (Sinaiko).) The burden of showing such an abuse rests with the appellant. (Ibid.)

The trial court did not abuse its discretion in finding that Brent had engaged in a misuse of the discovery process. To properly respond to a request for the production and inspection of documents, the responding party must (1) give answers that are true and accurate (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 193 [party “engaged in sanctionable conduct by providing false discovery responses”]; see also § 2031.220 [requiring responding party to specify whether documents will be produced or whether there is an objection thereto]); and, if the party believes that one or more responsive documents is protected by a privilege, (2) provide a privilege log that “identif[ies] with particularity each document the responding party claims is protected from disclosure by a privilege and provide sufficient factual information for the propounding party and [trial] court to evaluate whether the claim [of privilege] has merit” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 (Catalina Island); § 2031.240, subds. (c)(1) & (c)(2); see also People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1073-1074). To be sufficient, a privilege log should ordinarily spell out (1) “the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document,” (2) “the document’s date,” (3) “a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies,” and (4) “the precise privilege or protection asserted.” (Catalina Island, at p. 1130.)

Brent’s responses did not satisfy either of these requirements. The First, Second and Third Supplemental Responses did not provide truthful and accurate responses because each reported that Michael had no further documents to disclose, while Brent repeatedly acknowledged in writing that she had further documents to disclose. Her disclosure of an additional nine pages of documents on the morning of the hearing on the motion to compel does not wipe away the prior months of intransigence and untruths. (Sinaiko, supra, 148 Cal.App.4th at p. 407 [so holding]; Cal. Rules of Court, rule 3.1348(a) [“The court may award sanctions . . . even though . . . the requested discovery was provided to the moving party after the motion [to compel discovery] was filed.”].) Brent also never provided a valid privilege log. The privilege logs included in the First and Second Supplemental Responses made no effort to identify with particularity the specific documents that Michael was claiming to be protected from discovery and the log attached to the Third Supplemental Response—even if we elect not to disregard it entirely for its tardiness (Sinaiko, at p. 407)—continues to be deficient because (1) it provides no description of the contents of the documents, and (2) it is untrue because it did not include documents involving Michael’s written communications with third parties that Michael elsewhere claimed were privileged and which fell outside of the party’s stipulation not to report communications with one’s attorneys.

The trial court also did not abuse its discretion in finding that Brent had unsuccessfully opposed the co-trustees’ motion to compel further responses and had done so without substantial justification or proof that the imposition of monetary sanctions was unjust. The trial court granted the motion, so Brent’s opposition was unsuccessful. Brent’s sole refrain was that the imposition of sanctions would be a “travesty of justice.” However, merely reciting these words did not establish substantial justification for her opposition or demonstrate that sanctions would be unjust notwithstanding her trenchant refusal to provide a proper response in any of the four supplemental responses she made. (See Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435 [burden of proving substantial justification on party opposing motion for sanctions].)

Brent offers what boil down to five arguments against the imposition of monetary sanctions. None has merit.

First, she asserts that she should not be held liable for monetary sanctions because an attorney may be saddled with such sanctions only if she has “advis[ed] [her client’s] disobedience.” This assertion rests on faulty legal and factual premises.

Legally, the standard Brent relies upon—“advising disobedience”—came from a statute that is no longer the law. (Former § 2034(b)(2)(D).) As noted above, the governing statute now holds an attorney liable as long as she “advise[s]” “the misuse of the discovery process.” (§ 2023.030, subd. (a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261 (Ghanooni) [noting current standard].)

Factually, the trial court did not abuse its discretion in finding that Brent had “advis[ed]” Michael to misuse the discovery process by providing untrue and evasive responses because substantial evidence supports that finding. (Strumsky v. San Diego County Employees Ret. Ass’n. (1974) 11 Cal.3d 28, 31 [an “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence”].) Brent was Michael’s sole counsel at the time he served all four supplemental responses; she sent emails admitting that the responses were not complete and, in time, accusing the co-trustees and their attorneys of all manner of misbehavior; and, most tellingly, she attested to her “assist[ance]” with all of these responsive acts. To the extent Brent suggests that any and all noncompliance was Michael’s idea, she bore the burden of proof on this issue (Corns v. Miller (1986) 181 Cal.App.3d 195, 201) and proffered no evidence to the trial court in support of it. (Cf. Ghanooni, supra, 20 Cal.App.4th at p. 261 [attorney submitted declarations and documentation showing that party was not taking counsel’s advice]; In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1077 [noting that “all evidence points to [counsel’s] repeated attempts to have [the party] comply with” trial court’s discovery order], italics added.) Brent’s attempt to develop that theory on appeal is too little, too late. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780 (Bogacki) [rule against raising issues for first time on appeal “is to be stringently applied when the new theory depends on controverted factual questions whose relevance thereto was not made to appear at trial”].) Brent alternatively proclaims that she need not produce any evidence of who was the driving force behind the misconduct because any such evidence would necessarily entail disclosure of attorney-client privileged communications. The net effect of Brent’s argument is to immunize all counsel from liability for discovery misconduct, a result inconsistent with the plain language of the Act as well as common sense. She cites Luke v. Baldwin-United Corp. (1985) 167 Cal.App.3d 664 and Custom Craft Carpets, Inc. v. Miller (1982) 137 Cal.App.3d 120 in support of her argument, but these cases do not involve discovery sanctions.

Second, Brent contends that the trial court’s monetary sanctions order violated due process. At its core, due process entitles a person to notice and the opportunity to be heard before a neutral decision-maker. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212; Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.) Brent got that: The co-trustees filed their motion to compel and for sanctions in May 2015 with notice of the sanctions sought, Brent filed an opposition, and the trial court held a hearing in July 2015 where it heard argument before ruling. She says that the trial court engaged in “direct discussions” with the co-trustees’ counsel, implying that the court engaged in ex parte communications that impugn its impartiality. However, she cites to no portion of the record and our review of the entire record reveals no hint of any such ex parte communication. Brent also says that the court “did not even have time to review all the records related to [the co-trustees’] motion.” However, the court at the hearing demonstrated its familiarity with both parties’ filings and indicated only that it had not read the unauthorized filing Brent made that morning but still granted her the opportunity to argue. Were we to hold that a litigant makes out a due process violation entitling her to a reversal merely by making a last-minute, unauthorized filing, we would facilitate a whole new level of game playing by counsel. Not surprisingly, we decline to do so.

Third, Brent argues that the co-trustees and their attorneys acted with bad motives and themselves engaged in discovery misconduct, and litters her brief with so many pejorative adjectives that she could make a thesaurus blush. However, the co-trustees’ behavior is irrelevant to whether she engaged in discovery misconduct. (See Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653 [rejecting “tit-for-tat” excuse for discovery misconduct]; see also Nat’l Acad. of Recording Arts & Scis., Inc. v. On Point Events, LP. (C.D. Cal. 2009) 256 F.R.D. 678, 680 [same].)

Fourth, Brent posits that her opposition to their motion to compel was appropriate because (1) she had “substantial justification” for opposing the motion given that she eventually produced a valid privilege log and produced all of the responsive documents, (2) she had valid grounds for obtaining a protective order, and (3) the co-trustees never met and conferred with her prior to filing the motion. Brent never adduced any evidence to support these arguments before the trial court; her attempt to do so now, as noted above, comes too late. (Bogacki, supra, 5 Cal.3d at p. 780.) What is more, the evidence that is in the record refutes these tardily asserted defenses. As noted above, the privilege log attached to the Third Supplemental Response was still defective and subsequent litigation regarding the scope of the attorney-client privilege revealed additional responsive documents that had not been included in the log. Brent never moved for a protective order. And the co-trustees met and conferred with Brent before filing their motion to compel in a series of letters over the course of weeks pointing out the deficiencies with the First and Second Supplemental Responses. (§ 2016.040 [detailing meet and confer requirement].)

Lastly, Brent asserts that the trial court did not have inherent or common law authority to issue monetary sanctions against her. Whether the court possessed such authority does not matter because, as discussed above, the court had ample statutory authority under the Act to issue those sanctions.

III. Sanctions on Appeal

Co-trustees, in their brief and in a separate motion, ask us to sanction Brent for filing a frivolous appeal and to award them the $92,279.50 they incurred in attorney fees responding to the appeal. We agree that Brent’s appeal lacks merit, is brimming with unsubstantiated invective, and does not comply with the Rules of Court by providing citations to the record for all of its factual assertions. However, we conclude that it does not satisfy the objective and subjective prerequisites of frivolity necessary to overcome the general rule that parties bear their own attorney fees. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650 [discussing twin standards].)

DISPOSITION

We construe Brent’s appeal as a petition for an extraordinary writ, and deny that petition and affirm the sanctions order. The co-trustees are entitled to their costs on appeal, but not the sanctions they request for the filing of a frivolous appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P.J.

LUI

_________________________, J.

ASHMANN-GERST