Filed 4/23/20 Black v. Firemans’ Fund Ins. Co. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

DOMINIQUE BLACK,

Cross-complainant and Appellant,

v.

FIREMAN’S FUND INSURANCE COMPANY,

Cross-defendant and Respondent.

A155428

(San Mateo County

Super. Ct. No. CIV511997)

Cross-complainant Dominique Black, appearing in propria persona, appeals from a sanctions order entered against him in favor of cross-defendant Fireman’s Fund Insurance Company (Fireman’s Fund). We affirm.

BACKGROUND

This is the second opinion we have issued in this matter. In Black’s first appeal, we explained the origins of the case: “Dominique Black submitted a claim to his insurer, Fireman’s Fund . . . . The claim was initially denied and, over the next couple of years, Black communicated with company representatives through letters, emails, and telephone conversations. In these communications, Black complained, often in vitriolic terms, that Fireman’s Fund handled his claim improperly, engaged in illegal activities, and had ties to the Nazi regime in Germany. [¶] Fireman’s Fund sued Black alleging that his communications amounted to civil extortion, interference with contractual relations, interference with prospective economic advantage, and unfair business practices.” (Fireman’s Fund Insurance Company v. Black (Nov. 6, 2014, A136603) [nonpub. opn.] (Black I).)

In Black I, Black challenged a trial court order denying his special motion to strike under Code of Civil Procedure section 425.16. We affirmed the court’s order, concluding that “Fireman’s Fund’s claims have at least minimal legal merit under the facts established thus far in the proceedings.” We “otherwise [took] no position on the strength of these claims.”

After the first appeal was resolved in favor of Fireman’s Fund, the company dismissed its complaint without prejudice. The case did not end, however, because Black had filed a cross-complaint against Fireman’s Fund in which he asserted a number of claims, including insurance bad faith. Litigation on the cross-complaint proceeded, and in the fall of 2016, Black designated two experts. One of them, attorney Randy Hess, was designated as an expert about insurance claims.

Over the next year and a half, Fireman’s Fund repeatedly tried to take Hess’s deposition, to no avail. In March 2018, Fireman’s Fund moved to compel the experts’ depositions or exclude their testimony. The trial court issued a tentative ruling which, after observing that Fireman’s Fund has a right to depose Black’s designated experts, concluded, “There is no excuse for further delay. The Court orders [Black] to produce [Hess and the other designated expert] for deposition no later than July 20, 2018. If not produced for deposition by that date, their testimony shall be excluded from trial absent a good faith, reasonable explanation for not complying with the July 20, 2018 deadline.” The ruling also pointed out that Black previously represented that he had “agreed (orally) with [Fireman’s Fund’s] counsel to present both experts for deposition” by July 20, 2018. Neither party contested the tentative ruling, and it became the court’s order.

In mid-July 2018, a new law firm entered its appearance for Black and asked to postpone Hess’s deposition to July 20, the last day for expert discovery. Fireman’s Fund agreed. But later, the firm asked Fireman’s Fund to stipulate to a 45-day extension for Black to locate and designate a new expert to replace Hess, and Fireman’s Fund declined. Then, on July 20, Black filed an ex parte application to extend the expert discovery period. Fireman’s Fund opposed the application, and the trial court denied it.

Two weeks later, in early August, Black filed a motion seeking “a short continuance to allow a further expert designation and expert deposition” (the motion). The motion, which gave rise to the sanctions order at issue, argued that the expert discovery period should be reopened and continued and Black should be permitted to designate a new expert. This was supposedly necessary because Black had been “unable to ascertain whether [Hess] had been retained as an expert until [his former attorney’s] file was finally received on July 16, 2018.” Fireman’s Fund opposed the motion, arguing that Black was aware long before July that Hess was unavailable as an expert and that Black had not been diligent in satisfying his own expert discovery obligations. The company sought $7,862.50 in sanctions.

The trial court denied the motion, finding that Black was given almost 18 months’ notice of Hess’s reluctance or refusal to act as an expert and, therefore, “had plenty of opportunity, plenty of notice, plenty of time when he could [have] handle[d] this and take[n] care of it.” The court also awarded monetary sanctions to Fireman’s Fund in the requested amount.

DISCUSSION

A. The Standards of Review

“A court’s decision to impose a particular sanction is ‘subject to reversal only for manifest abuse exceeding the bounds of reason.’ ” (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.) Under this standard, we must affirm the trial court’s ruling if it is “ ‘correct on any basis, regardless of whether such basis was actually invoked.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) The appellant bears the burden of demonstrating an abuse of discretion. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)

To the extent that we review the trial court’s findings of fact, we apply a substantial evidence standard of review. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479.) And to the extent we “construe the applicable discovery statutes, we do so de novo, without regard to the trial court’s ruling or reasoning.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 401.)

B. The Trial Court Properly Awarded Sanctions.

The trial court awarded sanctions to Fireman’s Fund “pursuant to . . . [section] 2034.630.” Section 2034.630 states that a trial court “shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to augment or amend expert witness information, 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.”

On appeal, Black does not dispute that in 2016 he designated Hess as an expert, that Fireman’s Fund timely attempted to take Hess’s deposition, and that he failed to produce Hess for a deposition within the expert discovery period. Nor does Black dispute the statutory basis for, or the amount of, the sanctions award. His sole claim is that the sanctions award cannot stand because he showed that “exceptional circumstances” justified the motion. We are not persuaded.

Black’s contention that he identified “exceptional circumstances” warranting his unsuccessful attempt to extend the expert discovery period to allow him to designate a new expert is—in section 2034.630’s parlance—a contention that he had “substantial justification” for the attempt. The quoted phrase “means clearly reasonable justification that is well grounded in both law and fact.” (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1269.) As we discuss, the record contains ample evidence supporting the trial court’s determination that Black lacked a clearly reasonable justification for filing the motion.

In April 2017, early in the discovery period, Hess told Black in an email exchange that he would not act as an expert or appear at a deposition unless he was paid. Almost a year later, Hess reiterated in another email to Black, “As I have stated before, in light of your failure to provide a signed fee agreement, and make payment as promised, I am not representing you as an expert in this case.” Hess then elaborated by telling Black that he had withdrawn as an expert the previous year because no agreement had been executed and he had not been paid. And still later, Hess was even more emphatic, telling Black, “I am not your retained expert, you have known this now for over a year . . . . I have nothing further to discuss with you.”

This evidence supports the trial court’s findings that Hess refused to be Black’s expert because he was not being paid and that Black failed either to ensure Hess’s participation or to timely find a different expert. Between April 2017 and July 2018, Black could have reached agreeable terms with Hess to ensure Hess’s participation as an expert, or he could have found, designated, and made available a different expert. But Black failed to do either, and his delays and obfuscations about Hess’s deposition forced Fireman’s Fund to spend additional time and money to pursue and protect its legitimate discovery interests.

On appeal, Black continues to deny responsibility for his failure to ensure he had a designated expert who could be deposed during the expert discovery period, and he makes rambling arguments that are immaterial to the sanctions award. He argues, for example, that shortly after his former attorney withdrew from the case in November 2017, he discovered multiple conflicts of interest between the former attorney and Hess. He contends it was these conflicts, not issues related to the payment of expert fees, that caused Hess to be unavailable as his expert. The contention, even if true, is inconsequential. Once he knew Hess was unavailable, Black was obligated to find and designate a different expert (if he still wanted one) regardless of the reason for Hess’s unavailability.

Black also suggests that the attorney for Fireman’s Fund is blameworthy because the attorney “insisted on deposing Hess even though Black had expressly and implicitly informed [the attorney] that Hess was unavailable due to a conflict of interest, and indicated that his new counsel would be responsible to augment [Black’s 2016] designation of experts by removing Hess.” But Black’s problems with Hess—regardless of whether they arose from a failure to pay fees or conflicts of interest—were not caused by Fireman’s Fund, and neither the company nor its attorney was obligated to solve them. Fireman’s Fund had every right to insist on deposing Black’s designated experts within the expert discovery period.

The context in which the motion was brought also supports the sanctions award. To begin with, at the time of the motion, the trial date had already been continued six times, each at Black’s request. In addition, the motion was filed less than two weeks after the trial court rejected Black’s ex parte application to extend the expert discovery period, and it did not offer meaningful new reasons for the court to allow Black to designate a new expert. Finally, in the motion, Black did “not identif[y] an additional expert witness.” Thus, the motion amounted to little more than another effort to delay the proceedings, this time by asking to reopen and extend the expert discovery period without any assurance that an actual expert would be promptly identified and deposed. The denial of the motion was eminently reasonable, and the court did not abuse its discretion in finding that it was filed without substantial justification. Therefore, sanctions were warranted.

DISPOSITION

The trial court’s award of sanctions in the amount of $7,862.50 is affirmed. Fireman’s Fund is awarded its costs on appeal.

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

Black v. Fireman’s Fund Insurance Company A155428