Filed 9/15/20 Cantu v. Equinox Holdings CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
FAWNIA CANTU et al.,
Plaintiffs and Appellants,
v.
EQUINOX HOLDINGS, INC. et al.,
Defendants and Appellants.
B295973
(Los Angeles County
Super. Ct. No. BC694565)
APPEAL from an order of the Superior Court of Los Angeles County, Mel Red Recana, Judge. Affirmed.
Traylor Law Office, Michael S. Traylor, for Plaintiffs and Appellants.
Jackson Lewis, Adam Y. Siegel, Zoe Yuzna, Dylan B. Carp, for Defendants and Appellants.
__________________________
Plaintiffs and appellants Fawnia Cantu and Ashley Jackson appeal from an order awarding sanctions of $5,684 to defendants and respondents Equinox Holdings, Inc., Jack Gannon, and Nathan Cook (collectively Equinox) after the plaintiffs’ unsuccessful opposition of motions to compel further discovery in their employment discrimination action. On appeal, Cantu and Jackson contend the trial court abused its discretion by finding they opposed Equinox’s motions without substantial justification. We conclude that the record on appeal is inadequate for review, because it lacks a reporter’s transcript of the hearing on the demurrer or a suitable substitute, such as a settled statement under California Rules of Court, rule 8.137. Even were we to consider the record adequate, Cantu and Jackson have not shown that the trial court abused its discretion. Because the plaintiffs have not met their burden on appeal to demonstrate error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On February 21, 2018, Cantu and Jackson filed a complaint against Equinox for employment discrimination, negligence, retaliation, intentional infliction of emotional distress, wrongful termination, violation of the whistleblower protection statutes, breach of contract and failure to pay wages. On June 6, 2018, the parties executed a joint stipulation to extend the time for Equinox to file responsive pleadings. On August 16, 2018, Cantu and Jackson filed an amended complaint against Equinox alleging the same claims.
Equinox was represented by attorneys Zoe Yuzna and Adam Siegel. On September 11, 2018, Equinox served Cantu and Jackson with requests for the production of documents, which were due on October 15, 2018.
Yuzna and her colleague Ricardo Lopez spoke with the plaintiffs’ attorney Michael Traylor to request extensions of time to file a responsive pleading and outstanding discovery responses. On September 12, 2018, Yuzna sent an email to Traylor stating, “Thank you for extending defendants’ time to respond to the first amended complaint to 10/4/18. Also, thank you for extending defendants’ deadline to respond to the discovery which was due 9/19/18 by three weeks to 10/10/18.”
On September 26, 2018, Equinox served Cantu and Jackson with form interrogatories, responses to which were due from each plaintiff on October 30, 2018. On October 3, 2018, Equinox filed its answer. No appearance was made for Cantu and Jackson at a case management conference on October 30, 2018.
On November 1, 2018, Yuzna sent an email to Traylor stating: “Plaintiffs have not responded to defendants’ requests for production of documents. The deadline for plaintiffs’ responses was October 15, 2018 – more than two weeks ago. Please serve responses without objections by close of business on Monday, November 5, 2018.”
On November 5, 2018, Yuzna sent an email to Traylor noting that in addition to the lack of response to requests for production, Cantu and Jackson’s responses to form interrogatories had been due on October 30, 2018. She advised that Equinox intended to file motions to compel all outstanding discovery responses on November 7, 2018, and would seek sanctions.
Traylor replied by email later that day: “Per our agreement (when you requested extension), I have an automatic 30-day extension on all discovery. With that said, we intend to serve responses before Thanksgiving.”
Attorney Siegel replied, “I do not recall an agreement to ‘automatic’ 30-day extensions. What I agreed to, and what I will always agree to, are timely requests for extensions on discovery (so long as there is no critical deadline). Please forward any correspondence detailing an ‘automatic’ extension. As you can see from the attached email, I indicated that we would grant extensions ‘to the extent necessary’ and similarly in our text messages, we agreed to extensions ‘should [you] need one.’ You mention in your text ‘in the bank’ but that’s just a reference to the fact that we would provide an extension should one be needed and requested. At no time prior to the deadline did you request an extension, despite the fact that a simple phone call or email or even text message would suffice. Having said that, I will confer with my client as to how they would like us to proceed.”
Traylor responded, “Check with [Yuzna]. She and I spoke when she requested extension more recently.” On November 6, 2018, Yuzna replied, “Are you saying that I granted you an automatic, blanket 30-day extension on all discovery responses? I’ve never heard of such a blanket extension and would never give one. As [Siegel] mentioned yesterday, we’re always willing to grant timely requested extensions but we did not receive one in this case. [¶] Your false claim that you were given an extension is not well taken. We have spoken with our client and will move to compel discovery responses without objections. We will seek sanctions.”
Traylor replied, “This is simply untrue. I conditioned my extension on an extension in the event I needed one on the outstanding discovery requests. Let me know if you will not honor same.”
Siegel replied in relevant part, “As I mentioned in my prior email, we are always willing to grant extensions when the request is made timely. Here, you never actually made a discovery extension request and thus we were not aware of any need for one and the deadline to respond to discovery had lapsed. Again, there was no ‘automatic’ extension. Had you asked, we would have given you one. However, had we not reached out the second time, perhaps we would not have even known that you were even contemplating actually responding. Please advise if you are willing to provide responses without objection. If so, we can agree not to move to compel.”
Traylor responded, “Thanks for the info. I will keep that in mind. I’m a bit surprised at all of this . . . but it’s ok. I’m sure that there will be no future confusion on response dates and whether or not extensions were granted. I will get responses to the pending discovery out as quickly as possible.”
On November 6, 2018, Traylor mailed Cantu’s objections to the requests for production of documents, Cantu’s objections to the form interrogatories, Jackson’s objections to the requests for production of documents, and Jackson’s objections to form interrogatories. Each two-page document contained the same four paragraphs of boilerplate, blanket objections to all of the items requested by all of the Equinox defendants.
On November 7, 2018, Siegel sent an email to Traylor stating in part, “Can we agree on receiving responses by next week without objections.” Traylor replied, “No more agreements on discovery . . . . I’m sure [Yuzna] is chomping away on her motion(s). I sent responses out last night, so her motions will be moot. I do anticipate amending the responses and will do so as quickly as possible. Should you find either set of those responses unsatisfactory, I will happily meet and confer with you in an effort to avoid you having to file a Motion to Compel.” He added, “Some additional discovery requests went out today via overnight delivery. If there’s a possibility of getting those responses before the depositions in NY, that would be ideal.”
On November 8, Equinox received 19 sets of discovery requests from Cantu and Jackson. On November 9, 2018, Equinox received Cantu’s objections to the requests for production of documents and objections to the form interrogatories, as well as Jackson’s objections to the requests for production of documents and objections to form interrogatories.
On November 13, 2018, Equinox’s counsel sent Traylor a lengthy meet and confer letter about the discovery responses. On November 20, 2018, Yuzna sent an email to Traylor stating that no substantive responses had been received, her meet and confer letter had been ignored, and Equinox would be filing motions to compel. That day, Traylor responded that Yuzna was being ridiculous and the plaintiffs would respond to the meet and confer letter the following week. Siegel replied by email that the general objections were inappropriate and Equinox required substantive discovery responses prior to scheduling depositions.
On November 20, 2018, Traylor sent a response to the meet and confer letter stating that he had been traveling extensively and in trials, he would deal directly with Siegel on all matters, and he was concerned about Equinox’s position that anticipated depositions would not go forward without receipt of responsive documents. He noted that the plaintiffs served blanket objections after Yuzna failed to honor her agreement to provide an extension.
That day, Siegel responded by email to Traylor’s meet and confer letter. He affirmed his position that no automatic extension of time to respond to discovery had ever been given, and although Equinox would have agreed to an extension, no extension was requested. He would not prejudice his clients by allowing their depositions without the opportunity to review the necessary discovery responses and documents that were timely served.
On December 6, 2018, Equinox filed a motion to compel Cantu’s further responses to requests for production of documents and requested sanctions of $2,360 based on the billing rates of Equinox’s attorneys. On December 10, 2018, Equinox filed a motion to compel Cantu’s further responses to form interrogatories, a motion to compel Jackson’s further responses to requests for production of documents, and a motion to compel Jackson’s further responses to form interrogatories. Equinox requested an award of sanctions of $2,360 with respect to each motion to compel. Yuzna filed a declaration in support of each motion denying any agreement to an automatic extension of any kind.
On December 11, 2018, Cantu and Jackson filed a “partial, combined opposition” to the motions to compel. They explained that they had served further discovery responses on December 10, 2018, causing the motions to compel to be moot. They also asserted that Equinox propounded excessive requests for production. Equinox’s counsel reneged on a promised extension to provide responses to more than 500 separate document production requests, then contended the responses must be provided within three days before rushing to court to file motions to compel. They asked that no sanctions be awarded because the motions to compel were moot.
Cantu and Jackson submitted Traylor’s declaration in support of their opposition to the motions to compel further responses. Traylor declared that he was traveling in September 2018, when he spoke with Yuzna and her colleague Ricardo Lopez about the status of the case. Equinox’s counsel requested extensions to file a responsive pleading and outstanding discovery responses. Traylor had previously granted Equinox’s counsel extensions on seven occasions. During this conversation, Traylor stated the extensions were conditioned on allowing him a “30 day extension in my hip pocket, if I need it.” They agreed, and Traylor relied on their representation. He did not document the extensions, since he was traveling and did not imagine they would renege. When Traylor attempted to exercise the extension, Equinox’s counsel declined and sent emails denying their agreement, quickly following with a meet and confer letter. Traylor provided objections with admittedly boilerplate responses to avoid motions to compel, while he worked to gather responsive information. Equinox’s counsel continued to refuse to abide by their agreement. On November 13, 2018, Yuzna purported to allow three days to respond to several hundred requests, which was not possible. On December 10, 2018, Traylor provided full, verified responses and provided documents in compliance with the requests. Several objections were asserted, but no information or documents were withheld. The conduct of Equinox’s counsel was surprising and unreasonable in light of the extensions that Traylor had previously granted to them.
On December 21, 2018, Equinox filed a reply to the motion to compel Cantu’s further responses to requests for production of documents. Equinox argued that the responses provided were untimely and improper. Cantu’s verification of the further responses was dated November 8, 2018, more than a month before the responses were served on Equinox, so either the responses were not complete when Cantu signed the verification, or the responses had been intentionally withheld. No extension had been granted for Cantu’s discovery responses, the responses provided were a grave misuse of the discovery process, and monetary sanctions were warranted.
Equinox submitted Yuzna’s declaration stating that she and Lopez spoke with Traylor on September 12, 2018. Traylor had not yet received the discovery requests from Equinox and did not request an extension at that time. Equinox received the plaintiffs’ further responses to the requests for production. Plaintiffs’ further document production in response to Equinox’s request consisted of six pages and did not identify which plaintiff produced the documents.
Equinox submitted Cantu’s three-page further responses to the request for production of documents, which included the objections asserted to the original responses. Cantu reserved the right to introduce evidence from any source that might be discovered. For requests 1 through 231, she stated that she had conducted a diligent search and had located some documents responsive to the request, which were being produced. She believed additional documents existed which were responsive to the request within her possession, and as soon as such documents were located, they would be produced subject to the objections stated. In addition, she believed additional documents existed which were in Equinox’s possession. She did not have any additional information regarding any responsive documents, but would continue to search for them.
On December 27, 2018, Equinox filed a reply to the motion to compel Jackson’s further responses to request for production of documents, which was substantially similar to the reply filed regarding Cantu’s responses. Jackson’s verification of the further responses was dated November 7, 2018, more than a month before the responses were served on Equinox, so either the responses were not complete when Jackson signed the verification, or the responses were intentionally withheld. Yuzna filed a substantially similar declaration in support of the reply, as well as Jackson’s identical three-page further responses to the request for production of documents.
On January 1, 2019, Equinox filed a reply to the motion to compel Cantu’s further responses to form interrogatories that was substantially similar to the replies to the other motions. Equinox argued that the further responses simply stated the allegations of the complaint. She argued that the motion was not moot, Equinox made a substantial effort to meet and confer, and sanctions were warranted. Equinox submitted Yuzna’s declaration in support of the reply. On January 7, 2019, Equinox filed a reply in support of the motion to compel Jackson’s further responses to form interrogatories and a declaration from Yuzna that were substantially similar to the prior replies.
A hearing was held on February 22, 2019. No reporter’s transcript or agreed or settled statement of the proceedings has been made part of the record on appeal. In the trial court’s ruling, the court noted that parties may agree to extend the time to provide discovery responses under Code of Civil Procedure sections 2030.270 and 2031.270, and their agreement may be informal, but the statutes require the agreement to be confirmed in a writing. Traylor had failed to show the parties confirmed an agreement for an extension in writing. The trial court granted the motions to compel further responses to the extent that the supplemental responses failed to address the bases of Equinox’s motions.
The court found that although the plaintiffs provided supplemental responses, monetary sanctions were proper to compensate Equinox for having to bring the motions to compel. Equinox had requested a total of $9,440 in attorney fees. While the hourly rates of the attorneys were reasonable, the number of hours that Equinox sought to recover were unreasonable when the motions were substantively the same or similar. The plaintiffs also provided supplemental responses and did not dispute the merit of the motions. The trial court used a blended rate and a reduced number of hours to calculate sanctions of $5,684. The trial court granted the motions and ordered sanctions in the total amount of $5,684 against Cantu and Jackson, jointly and severally. Cantu and Jackson filed a timely notice of appeal.
DISCUSSION
Statutory Scheme and Standard of Review
Parties can agree to extend the time provided by statute to respond to interrogatories (Code Civ. Proc., § 2030.270, subd. (a)) or to requests for the production of documents (Code Civ. Proc., § 2031.270, subd. (a)). An agreement to extend the time to respond may be informal, but the discovery statutes require that “it shall be confirmed in a writing that specifies the extended date.” (Code Civ. Proc., § 2030.270, subd. (b); Code Civ. Proc., § 2031.270, subd. (b).)
A party who fails to serve a timely response to interrogatories waives any right to produce writings under Code of Civil Procedure section 2030.230, as well as any objection to the interrogatories. (Code Civ. Proc., § 2030.290, subd. (a).) Similarly, a party who fails to serve a timely response to a demand for inspection, copying, testing, or sampling has waived any objection to the demand, including an objection based on privilege or work product protection. (Code Civ. Proc., § 2031.300, subd. (a).)
After receiving a response to interrogatories, the propounding party may move to compel a further response if an answer is evasive or incomplete, an exercise of the option to produce documents under section 2030.230 is unwarranted or not sufficiently specific, or an objection to an interrogatory is meritless or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Code of Civil Procedure section 2030.300 requires: “The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.300, subd. (d).)
Likewise, after receiving a response to a demand for production, the party making the demand may move to compel further response to the demand if a statement of compliance with the demand is incomplete, a representation of the party’s inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) Except in cases of certain electronically stored information, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310, subd. (h).)
In addition, Code of Civil Procedure section 2023.030, subdivision (a), authorizes the imposition of monetary sanctions for discovery abuses: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (§ 2023.030, subd. (a).)
“‘Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, unsuccessfully making or opposing discovery motions without substantial justification, and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so.’ [Citation.]” (In re Marriage of Michaely (2007) 150 Cal.App.4th 802, 809.)
We review the court’s imposition of discovery sanctions for abuse of discretion. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) “‘The abuse of discretion standard is not a unified standard . . . . The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ [Citation.]” (Jarvis v. Jarvis (2019) 33 Cal.App.5th 113, 128.) “The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)
Inadequate Record
The record on appeal in this case does not include a reporter’s transcript of the hearing on the demurrer or a suitable substitute, such as a settled statement under California Rules of Court, rule 8.137. We conclude the record is insufficient to demonstrate reversible error under California law.
“In numerous situations, appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided. [Citations.] [¶] The reason for this follows from the cardinal rule of appellate review that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.”’ (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.)” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186–187.)
“A reporter’s transcript may not be necessary if the appeal involves legal issues requiring de novo review. [Citation.] In many cases involving the substantial evidence or abuse of discretion standard of review, however, a reporter’s transcript or an agreed or settled statement of the proceedings will be indispensable.” (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483.)
If the record is inadequate to allow meaningful review, “‘“the appellant defaults and the decision of the trial court should be affirmed.”’ [Citation.] ‘. . . [Appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].’ [Citation.]” (Foust v. San Jose Construction Co., Inc., supra, 198 Cal.App.4th at p. 187.)
Without a record of the proceedings, we cannot review the arguments, concessions, or information presented to the trial court. The record is insufficient to show what evidence was presented at the hearing to support the trial court’s finding that the plaintiffs had no substantial justification for opposing Equinox’s motions to compel further discovery responses, and there is no basis to review the trial court’s exercise of its discretion. We presume the judgment is correct unless the record affirmatively demonstrates otherwise, and therefore, no showing of an abuse of discretion has been made on appeal.
Evidence Supports Trial Court Ruling
Even were we to conclude that the record is adequate for review, we would find no abuse of discretion in awarding monetary sanctions against Cantu and Jackson.
“In a variety of similar contexts, the phrase ‘substantial justification’ has been understood to mean that a justification is clearly reasonable because it is well grounded in both law and fact. [Citations.]” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434–1435.)
Substantial evidence supports the trial court’s finding that the oppositions to motions to compel further responses were made without substantial justification. The plaintiffs’ belief that Equinox granted them a 30-day extension of time to respond to all discovery matters was not reasonable or justified, because there was no written confirmation. The statutes authorizing informal extensions of time to respond to discovery specifically require confirmation of the agreements in writing. Without any written confirmation, Cantu and Jackson cannot claim to have been substantially justified in failing to respond to the discovery deadlines. In addition, their untimely responses to discovery requests were woefully inadequate and did not represent a good faith effort to comply with their statutory duties. Even considering the extension of time that the plaintiffs claimed to have received by agreement, their discovery responses were due before November 30, 2018. No proper responsive discovery was provided by November 30, 2018. Equinox did not file motions to compel further responses until December 2018. Cantu and Jackson have not demonstrated on appeal that their further responses to discovery requests met the requirements of the discovery statutes and were not evasive. It was the exclusive function of the trial court to weigh the evidence before it and resolve any conflicts. Despite these deficiencies, the court substantially reduced the amount of monetary sanctions that Equinox requested. We find no abuse of discretion in the trial court’s award of monetary sanctions against Cantu and Jackson.
DISPOSITION
The order awarding sanctions of $5,684 to Equinox is affirmed. Respondents Equinox Holdings, Inc., Jack Gannon, and Nathan Cook are awarded their costs on appeal.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.