Filed 3/24/20 Rybolt v. Riley CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

COURTNEY E. RYBOLT,

Respondent,

v.

JAMES E. RILEY IV,

Appellant.

C086056

(Super. Ct. No. 10FL05692)

Father James E. Riley IV appeals the trial court’s order denying his motion to compel discovery and awarding mother Courtney E. Rybolt attorney fees. He further contends the trial court lacked authority to order he undergo a vocational evaluation. Mother contends the trial court was correct and that father’s appeal is frivolous, entitling her to attorney fees on appeal. We affirm the trial court’s order and grant mother’s request for sanctions on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Father filed a motion for modification of child support. On September 19, 2017, the parties appeared before the trial court to argue discovery-related issues regarding the motion. Pursuant to mother’s request, the court ordered father to submit to a vocational evaluation. Father argued the court was without authority to do so under Family Code section 4331, subdivision (a), because that section allows for such evaluations only in proceedings for dissolution or legal separation, neither of which applied. The court disagreed and found good cause to order the evaluation under section 4058, subdivision (b) and Evidence Code section 730. Specifically, the court found that father’s income was contested given mother’s allegation that father previously held jobs that paid him substantially more than his currently claimed income.

The parties also argued regarding father’s motion to compel mother to respond to form interrogatories, special interrogatories, and his request for production of documents. In essence, father argued that mother’s claim of $2,000 a month in income did not align with her expenditures of $6,500 a month and that he needed additional information to account for the discrepancy. He further argued mother worked for an insurance company, in addition to her job as a hair stylist, and failed to provide pay stubs from the insurance company. Mother responded that father’s discovery requests were overbroad and irrelevant in that he requested five years of documentation, despite the fact they had a trial regarding child support within that time. Mother explained she did not receive pay stubs from her insurance job because it was considered self-employment and all the information father requested had already been provided to him as part of mother’s tax returns and her income and expense declaration. The court continued the matter until November 8, 2017, to allow sufficient time to “go through every line of every motion.” It indicated it thought father’s discovery requests were an abuse of process and that he was taking advantage of his law school education to file motions on his own behalf with the intention of burying mother in discovery and attorney fees. The court further indicated it would be awarding mother attorney fees if father persisted in his requests, to which father responded that he would appeal the court’s decision and he had an inability to pay attorney fees given his current income, enrollment in CalFresh, and inability to pay rent.

The court issued a decision on November 8, 2017. It initially summarized the issue before it as father’s request to modify child support, which had two primary considerations — time share of the child and the parties’ net income. The court then denied father’s motion to compel as to form interrogatory No. 1, which the court described as “prior history” because father knew mother’s name and did not need to know her Social Security number. Similarly, the court denied the motion as to form interrogatories Nos. 2 and 3, which requested whether there were other legal actions against mother, as irrelevant. Form interrogatory No. 4, persons sharing mother’s residence, was denied because that information was stated in mother’s income and expense declaration. Form interrogatory No. 6, support received for others, was denied as irrelevant because that type of income is not considered income for purposes of the child support calculation. Form interrogatory No. 7 was also denied because mother’s current income was provided on the income and expense declaration.

Although the court initially granted father’s request for mother’s tax returns, father withdrew his request after mother stated she had provided her current tax return and there was no need to provide previous tax returns given that the court had already set child support for those years upon a finding of mother’s income. Father’s motion to compel a schedule of mother’s assets and debts in form interrogatory No. 10 was denied because it was irrelevant to the child support calculation, as was his request for property valuations (No. 12), “property held by others” (No. 13), “retirement or other benefits” (No. 14), “claims for reimbursement” (No. 15), “credits” (No. 16), “insurance” (No. 17), “health” (No. 18), “children’s needs” (No. 19), and “gifts” (No. 21). The court did not appear to grant father’s motion to compel in any respect. The court further found father’s use of the form interrogatories an abuse of process that created substantial costs to mother and was done because of father’s legal knowledge with an aim to harass and annoy and bury mother in discovery.

The court then addressed father’s motion to compel regarding the special interrogatories. It denied special interrogatories Nos. 3 and 21 because father requested five years of information, which the court found excessive given that there had been trials and court findings within that time that would trump any evidence gathered from the discovery. It also denied the motion as to special interrogatory No. 35 because it was irrelevant to the custody formula. Like the form interrogatories, the court did not appear to grant father’s motion to compel in any regard as to the special interrogatories.

The court also denied father’s motion to compel the production of documents because that too was excessive in its five-year demand (Nos. 1, 9, 10, 12, and 41) or was irrelevant to the child custody formula (Nos. 8, 19, and 32). The court did not specify what father’s requests for production were nor did it grant any part of his motion to compel as to his request for production of documents.

The court then sanctioned father by awarding mother attorney fees under Code of Civil Procedure sections 2030.290, subdivision (c) and 2030.310, subdivision (h), for $1,000, as well as section 271, in the amount of $750 for the form interrogatories, $750 for the special interrogatories, and $750 for the request for production of documents, for a total of $3,250. The court found “that father’s over-litigation tactics frustrate the policy of the law to promote settlement in family law. Father . . . is a law student and is using his knowledge, which is appropriate to use your knowledge for appropriate purposes, but in this case, he is not. He is self-perpetuating all of this litigation whether it’s to prove the point or, in my opinion to bury mom [in discovery motions], and he is doing so.” The court continued, “What’s happened — he’s done through the course of these couple of years is he asserted mom’s income was almost twice what it actually was, what the Court found, and he’s managed to drop his income to half of what he had then. It’s clear what’s going on here. He’s not interested in caring for his child or supporting his child. He’s interested in shirking his responsibilities one way or the other.”

After learning that father had not completed the vocational evaluation ordered at the September 19, 2017, hearing, the court ordered father to contact the evaluator immediately.

On November 28, 2017, father filed a notice of appeal from the order entered on November 8, 2017.

DISCUSSION

I

The Trial Court Had The Authority To Order Father Undergo A Vocational Evaluation

Father contends the trial court erred by ordering him to undergo a vocational evaluation because it lacked the authority under section 4331, subdivision (a) to do so. Father does not argue the court lacked good cause to order the evaluation.

Initially, we note it is well established that discovery orders are not directly appealable. (Code Civ. Proc., §§ 904.1, 906; Southern Pacific Co. v. Oppenheimer (1960) 54 Cal.2d 784, 785-786; Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1241.) We may, however, review a discovery order under Code of Civil Procedure section 906 if it involves the merits of an appealable judgment or order. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 572, fn. 1.) Here, the court’s sanctions and attorney fee award under section 271 is an appealable order. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) Thus, we may review the discovery orders relevant to that attorney fee award; however, the vocational evaluation was not one of them. Indeed, it was not decided as part of the judgment appealed from and instead occurred on a different day involving separate facts.

We requested supplemental briefing from the parties as to whether the vocational evaluation order is an appealable order and incorporated in the notice of appeal from
the November 8, 2017, order awarding sanctions. Father responded that it is an appealable order under the collateral order doctrine. We disagree.

The collateral order doctrine is an exception to the general rule that there can be no direct appeal except from a final judgment. (Ponce-Bran v. Trustees of Cal. State University (1996) 48 Cal.App.4th 1656, 1661.) Our Supreme Court has described the doctrine as follows: “An appeal is allowed if the order is a final judgment against a party in a collateral proceeding growing out of the action. [Citations.] It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by appellant or the performance of an act by or against him [or her].” (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.) “In determining whether an order is collateral, ‘the test is whether an order is “important and essential to the correct determination of the main issue.” If the order is “a necessary step to that end,” it is not collateral.’ ” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 561.)

Father argues the order is collateral because “[t]he court often makes determinations and rulings for child support issues without the need for a vocational evaluation.” Thus, he believes “whether or not the court’s order was made, the main issue of child support could still have been decided.” That trial courts may make child support determinations without a vocational evaluation in some cases is irrelevant because, here, the trial court determined it appropriate to order the evaluation to make the child support determination in this case. The order was, therefore, not collateral to the main issue — it was “ ‘ “a necessary step to that end.” ’ ” (Lester v. Lennane, supra, 84 Cal.App.4th at p. 561.)

Although father is precluded from raising the issue in this appeal, we will address the merits of father’s argument for the purposes of accessing whether mother’s sanctions request is appropriate. Father’s substantive argument suffers from a fatal problem in that the court did not order the vocational evaluation under section 4331, it ordered it under section 4058 and Evidence Code section 730. Father does not argue the court lacked authority under these provisions, but instead argues, with citation to section 4331 only and a case interpreting it, that vocational evaluations can be ordered only in the context of spousal support. We disagree.

Section 4058, subdivision (b) “gives the court the discretion, in applying the guideline [child support] formula, to impute income to a parent based on his or her ‘earning capacity,’ in lieu of considering the parent’s actual income.” (In re Marriage of Smith (2001) 90 Cal.App.4th 74, 81.) To determine a parent’s earning capacity, the court would need an expert’s opinion on the subject. Specifically, an expert who has conducted a job survey of available employment opportunities for a person with the parent’s skills, experience, and background. The vehicle for accomplishing this is Evidence Code section 730, which allows for the appointment of an expert to investigate, render a report, and testify concerning the “matter as to which the expert evidence is or may be required.” Because the trial court had the authority to order a vocational evaluation under section 4058 and Evidence Code section 730, it did not err when ordering father to undergo such evaluation.

II

The Court Did Not Err By Denying Father’s Motions To Compel

Father contends the trial court erred by denying his motions to compel discovery because it failed to consider Code of Civil Procedure section 2017.010, in that the requested discovery need not be relevant but only likely to lead to admissible evidence. Specifically, father argues his requests would have likely led to “additional information related to [mother’s] assets. . . . The additional information would have led to possible discrepancies in [mother’s] overall financial picture; information would have been presented and ultimately admissible.” We disagree.

“Under California’s discovery statutes, ‘information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.’ ” (Los Angeles Unified School Dist. v. Trustees of Southern California IBEW-NECA Pension Plan (2010) 187 Cal.App.4th 621, 627-628.) As the trial court noted, the child support formula is dependent on two factors — a parent’s income and custody time share. (§ 4055, subds. (a) & (b).)

While father argues his discovery requests (requests he did not make part of the appellate record) would lead to “possible discrepancies in [mother’s] overall financial picture,” he has not demonstrated how mother’s “overall financial picture” is admissible as far as her income is concerned. Father does not argue how discovery of her assets and debts, support received by others, “property held by others,” “retirement and other benefits,” “claims for reimbursement,” “credits,” “insurance,” or “health” would lead to an item of evidence designed to undermine the income she claimed in her tax return and provided on her Internal Revenue Service Form 1099. (See County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1446 [“ ‘A parent’s gross income, as stated under penalty of perjury on recent tax returns, should be presumptively correct.’ ”].) Indeed, father appears to concede the trial court was correct in finding that these discovery requests were irrelevant to the calculation of mother’s income. Because father failed to demonstrate how his requested discovery would lead to admissible evidence relevant to the child support formula, the trial court did not err by denying his motions to compel.

III

The Trial Court Did Not Abuse Its Discretion By Imposing Sanctions

Father contends the trial court erred in awarding attorney fee sanctions under section 271 because it did not consider his ability to pay when imposing the sanctions. Father does not contest the amount imposed but argues that, because of his lack of assets and income, the sanctions have forced him into involuntary servitude. We disagree.

Misuse of the discovery process may result in the imposition of a variety of sanctions such as payment of costs, including attorney fees, and evidence preclusion. (Code Civ. Proc., § 2023.030, subd. (a); Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214.) Such misuse includes “[e]mploying a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc, § 2023.010, subd. (c).) A sanctions award is subject to reversal only for arbitrary, capricious, or whimsical action. (In re Marriage of Michaely (2007) 150 Cal.App.4th 802, 809.)

The problem with father’s initial argument is that while ability to pay is a factor of section 271 attorney fee sanctions, the court also imposed the sanctions under Code of Civil Procedure sections 2030.290, subdivision (c) and 2030.310, subdivision (h), which both allow for sanctions under Code of Civil Procedure sections 2023.010 through 2023.030. Those provision do not require an ability to pay finding before imposition of sanctions.

Neither does the sanction award result in father’s involuntary servitude. Our Supreme Court in People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, articulated the test for determining whether a fine is unconstitutionally excessive. The court should consider: (1) the defendant’s culpability, (2) the relationship between the harm and the penalty, (3) the penalties imposed in similar statutes, and (4) the defendant’s ability to pay. (Id. at p. 728.) As to culpability, the court found that father relied on his legal knowledge to engage in a pattern of discovery abuses aimed at burdening mother with excessive and unnecessary requests. The harm caused to her was that she had to pay attorney fees to respond to the excessive and unnecessary requests. Father points to no similar statutes with which we can compare. Finally, father had notice the court would impose sanctions. It was incumbent upon him to object on constitutional grounds and present evidence of his inability to pay. He made no objection nor did he introduce such evidence.

As is clear from father’s discovery requests and the court’s statements, father abused the discovery process to harass mother and burden her with attorney fees. Thus, the trial court did not abuse its discretion by imposing sanctions.

IV

Mother’s Request For Appellate Attorney Fee Sanctions Is Granted

Citing Code of Civil Procedure section 907 and California Rules of Court, rule 8.276, mother requests we impose appellate attorney fee sanctions on father as to the vocational evaluation issue because he has frivolously raised it with the sole purpose to delay the proceedings and to harass her. On our own motion, we raised the same issue as to father’s entire appeal and requested supplemental briefing on whether and in what amount attorney fee sanctions are appropriate. (Cal. Rules of Court, rule 8.276(a).)

In her response, mother requests sanctions as to the entire appeal in the amount of $2,980. Father argues sanctions are inappropriate because the appeal had merit, his motive was “not to delay the judgment or increase litigation costs,” and he did “not request[] a stay or attempt[] to delay the judgment otherwise.” Father further objects to the amount mother requests because he “is [s]elf-represented, unable to afford his own legal counsel and indigent” and mother “provided a general billing statement which does not provide the dates and times in which counsel worked on the subject appeal.” Upon review of the record and father’s briefs, we conclude sanctions are warranted. We also find no merit in his objection to the amount mother requests.

Sanctions may be imposed on appeal. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a).) Sanctions are warranted “only when [the appeal] is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) “The two standards under Flaherty are often used together, with one providing evidence of the other.” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1295.)

As we explained, all of father’s claims are “totally and completely without merit.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) The vocational evaluation issue was not appealable and, as to the merits, father never addressed the reason proffered by the court justifying its order when arguing the court erred. The same is true as to the sanctions issue. The court provided several justifications for imposing sanctions, yet father picked one when arguing for reversal. As to the discovery issue underlying the court’s sanctions order, we agree with the trial court. Father’s discovery requests were overbroad, irrelevant, and not designed to lead to admissible evidence. Father argues on appeal that he is engaging in a fishing expedition into mother’s overall financial picture as justification for his requests. He points to no item of admissible evidence his discovery requests were designed to elicit nor does he explain how that item would be relevant to the custody support determination.

Further, given the trial court’s statements regarding father’s conduct throughout the family court process, not only is the objective frivolousness high but also the subjective frivolousness. Father acted as his own attorney and was attending law school, while mother had to engage legal counsel whenever father initiated court proceedings at little to no cost to himself. As the trial court found, father used his legal knowledge to abuse the process of the court and frustrate the family court proceedings purely to harass and cause financial hardship to mother.

Mother incurred $2,980 in attorney fees and costs in defending this appeal. This request is supported by an itemized billing statement showing the filing fee and attorney fees incurred. Given the high degree of objective and subjective frivolousness of this appeal and the uncomplicated nature of the issues raised, we conclude $2,980 is a reasonable amount for sanctions.

DISPOSITION

The order denying father’s motions to compel and imposing sanctions is affirmed. As sanctions for a frivolous appeal, father shall pay mother’s attorney fees and costs in the amount of $2,980. (See Cal. Rules of Court, rule 8.278(a)(2).)

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Hoch, J.