Filed 5/15/20 Marriage of Clarke and Akel CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re the Marriage of MATTHEW CLARKE and CLAUDIA AKEL

MATTHEW W. CLARKE,

Respondent,

v.

CLAUDIA G. AKEL,

Appellant.

A154595

(San Mateo County

Super. Ct. No. FAM 0120913)

In this marriage dissolution case, Claudia Akel appeals family court orders imposing monetary and evidence sanctions and reserving jurisdiction over a temporary child support order. We agree with Akel that no evidence supports the amount of the monetary sanction, and therefore we reverse and remand. The other two orders (evidence sanction and reservation of jurisdiction) are not appealable.

BACKGROUND

A.

After notice and an opportunity to be heard, a court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process . . . pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 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 . . . and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so.” ’ ” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1285, italics omitted.)

B.

Clarke petitioned to dissolve the marriage to Akel in 2013. We summarized the early proceedings in a prior appellate opinion. (See Clarke v. Akel (In re Akel) (Dec. 11, 2018, A151888) 2018 Cal.App.Unpub.LEXIS 8331 [nonpub. opn.] (Akel) ) In that decision, a different panel of this Division affirmed a May 2017 family court order compelling Akel to respond to document requests and to pay Clarke approximately $15,000 in sanctions. (Id. at p. *1)

One of the document requests at issue in the appeal related to requests for sanctions Akel had made against Clarke and for need-based attorney fees (totaling $305,151), allegedly based on 621.9 hours of billable work performed through 2017. She had refused to produce most attorney fee documents, claiming some were privileged. The May 2017 order thus compelled Akel to respond to the request or to produce any non-privileged documents related to her attorney fee payments dating back to January 2014.

Many months passed, and despite Clarke’s efforts to meet and confer with Akel, she did not produce any requested responses or documents as ordered. Clarke claimed he could not challenge the reasonableness or necessity of Akel’s attorney fee requests without the fee records. In December 2017, Clarke filed a request under section 2023.030 for an order of discovery sanctions—specifically, he asked the family court to preclude Akel from making any attorney fee demands until she produced the requested documents.

In January 2018, Akel finally responded that she did not have any attorney fee invoices or other documents related to fees dating back to September 1, 2015 because the documents never existed—a fact that she presumably knew all along. At this point, it had been more than one and one-half years since Clarke had served the original document request, and, in the interim, Clarke had filed a successful motion to compel, won an appeal, made several meet-and-confer attempts, and, finally, filed a motion for sanctions. Clarke altered his request for sanctions in his reply brief—asking the court instead to preclude Akel from seeking any fees. Clarke’s reply brief also added a request for $7,000 in monetary sanctions to compensate him for approximately 14 hours of his attorney’s time litigating the issue.

C.

After a hearing, the family court issued an evidence sanction that precluded Akel from introducing any documents evidencing attorney fee charges or payments from September 1, 2015, through January 24, 2018, in any hearing or attaching them to any attorney fee declaration. Recognizing that Akel only complied with Clarke’s requests after multiple rounds of litigation, the family court also awarded sanctions in the amount of $7,000 to compensate Clarke for his attorney fees and to deter future abuse of the discovery process.

DISCUSSION

We review a trial court’s imposition of monetary sanctions for an abuse of discretion. (In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 108.) The failure to comply with the statute authorizing sanctions constitutes an abuse of discretion. (See Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 194 (Howell).) We independently review the trial court’s interpretation of discovery statutes. (Gonsalves v. Li (2015) 232 Cal.App.4th 1406, 1414.)

A.

Akel argues the court abused its discretion by ordering her to pay $7,000 in monetary sanctions to Clarke when there was no admissible evidence supporting that amount. We agree.

Although courts may impose monetary sanctions on parties who misuse the discovery process, there must be a notice of motion supported by a memorandum of points and authorities, as well as “a declaration setting forth facts supporting the amount of any monetary sanction sought.” (§ 2023.040; In re Marriage of Niklas (1989) 211 Cal.App.3d 28, 37 (Niklas) [“[M]onetary discovery sanctions payable to the opposing party are limited to the opposing party’s actual costs, including attorneys’ fees”].) Clarke proposed the $7,000 amount in a reply brief. In the absence of a declaration or other admissible evidence documenting Clarke’s actual fees and expenses, we must reverse the monetary sanctions order. (§ 2023.040; Howell, supra, 18 Cal.App.5th at p. 195 [monetary sanctions require evidence that fees were incurred as a result of discovery violations].) Additionally, by seeking the monetary sanctions for the first time in his reply brief, Clarke did not provide adequate notice. (§§ 1005, subd. (b), 2023.040; Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207.)

Relying on Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246 (Padron), Clarke argues a trial court may use its inherent authority to award monetary sanctions without respect to his actual costs. Padron, however, is an unusual case in which the court invoked judicial estoppel to affirm a daily fine for egregious discovery abuse. (Padron, supra, 16 Cal.App.5th at p. 1249.) We adhere to the established rules that discovery sanctions awarded to another party require evidence of, and are limited to, the party’s actual expenses. (§ 2023.040; Niklas, supra, 211 Cal.App.3d at pp. 37-38.)

Monetary sanctions may be entirely appropriate for Akel’s conduct, and nothing in our opinion should suggest otherwise. Accordingly, we vacate that portion of the family court order directing Akel to pay $7,000 to Clarke and remand for a new hearing to determine appropriate monetary sanctions.

Because we reverse the monetary sanctions on this issue, we do not address Akel’s other contentions.

B.

We will not address the merits of Akel’s appeal of the other two orders—the May 2017 evidence sanction and the April 2018 order “reserv[ing] jurisdiction to retroactively modify child support to November 1, 2017 if appropriate after” a future evidentiary hearing. Neither is an appealable order.

Unlike the monetary sanctions discussed above (§ 904.1, subd. (a)(12) [sanction order over $5,000 is appealable]), discovery orders like an evidence sanction are generally not appealable. (See § 904.1.) Contrary to Akel’s argument, we do not find the issue to be so intertwined with the propriety of the monetary sanction that we may exercise discretion to address it. (See Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1433 [declining to review discovery sanction where challenge to monetary sanction was not inextricably intertwined with challenge to other discovery sanction].)

Similarly, the family court’s 2018 order reserving jurisdiction is not final and thus not appealable. (In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1074.)

DISPOSITION

We reverse and remand for a new hearing on monetary sanctions.

 

_______________________

BURNS, J.

We concur:

____________________________

JONES, P.J.

____________________________

NEEDHAM, J.

A154595