Filed 8/17/18 Achterkirchen v. Montiel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DAVID ACHTERKIRCHEN et al.,

Plaintiffs and Respondents,

v.

JESUS A. MONTIEL,

Defendant and Appellant.

A148424

(San Francisco City & County

Super. Ct. No. CPF-11 5116369)

Jesus Montiel appeals from a postjudgment order granting monetary, issue, and evidentiary sanctions against him and his attorney for failure to comply with court orders compelling the production of documents sought pursuant to a subpoena duces tecum. Shortly after judgment was entered against Montiel in the underlying litigation, he recorded a deed of trust in favor of his attorney, Thomas Smurro, against a commercial building Montiel owned. The deed of trust referenced an underlying promissory note to Smurro for $850,000. Creditors subsequently served an order for a debtor’s examination on Montiel, accompanied by a subpoena duces tecum seeking, among other things, the promissory note and related documents.

Montiel sought several ex parte continuances of his debtor’s examination based on his medical condition. The trial court granted continuances, denied a motion to quash the subpoena, ordered Montiel to produce documents, and imposed monetary sanctions for his failure to comply with court orders. Though Montiel eventually appeared for examination, he never produced the promissory note, asserting it was protected by the attorney-client privilege. The trial court granted a subsequent motion brought by creditors to compel further examination and production of the promissory note. When Montiel still refused to produce the promissory note, the trial court granted the creditors’ request for monetary, issue, and evidentiary sanctions.

Montiel argues the trial court erred because a subpoena duces tecum is not a statutorily authorized method of discovery under the Enforcement of Judgments Law, he was denied due process when the trial court ordered him to produce documents without notice and a hearing, the trial court erred by requiring the production of documents protected by the attorney-client privilege, and the sanctions imposed were unauthorized by law. We agree with Montiel the monetary, issue, and evidentiary sanctions imposed by the trial court in April 2016 were not authorized and must be set aside. We otherwise affirm the trial court’s orders.

I. BACKGROUND

Montiel’s present challenge is the third appeal we have considered in this case. We discuss only the facts relevant to this appeal, and incorporate our prior nonpublished opinions, Achterkirchen v. Montiel (Mar. 24, 2015, A140277) and Achterkirchen v. Montiel (Mar. 28, 2017, A147386), which discuss factual and procedural information relevant to the prior appeals and underlying litigation.

In July 2013, the trial court entered judgment in favor of plaintiffs David Achterkirchen, Jane Achterkirchen, Genna Tricarico, Christopher Padula, Blake Mueller, and Matteo Fabiano (hereafter creditors) in the amount of $445,838. Less than a month later, before creditors had recorded the abstract of judgment, Montiel recorded a deed of trust in favor of his attorney, Thomas Smurro, against a commercial building Montiel owned in San Francisco. The next day, Montiel accepted an offer to purchase the property for about $1.8 million.

Creditors subsequently sought and obtained an order for a judgment debtor’s examination. On January 21, 2015, they served Montiel with the order to appear on February 5, 2015, and a civil subpoena duces tecum for production of documents. The subpoena duces tecum sought, among other things, all documents related to the promissory note identified in the deed of trust.

Shortly after he received the subpoena, Smurro contacted creditors’ counsel and informed them he was unavailable on February 5. Counsel for both parties exchanged communications regarding a stipulation to reschedule the debtor’s examination. In his letter to opposing counsel, Smurro stated although creditors had “absolutely no right to demand” production of documents a week before the examination, he had agreed to such a condition “in order to show good faith.” At the hearing on February 5, 2015, the trial court issued a failure to appear notice and ordered the examination continued to March 3, 2015.

In late February, Montiel filed an ex parte application to continue the March 3 exam because he had surgery requiring him to remain “off his feet.” Smurro attests he appeared by telephone on the day his ex parte motion was to be heard, but the court clerk told him his papers could not be located and it was not clear whether or where the motion would be heard that day. On March 2, the trial court issued an order granting Montiel’s continuance and ordering him to produce documents requested in the subpoena on or before March 6. The same afternoon (March 2), the court clerk left Smurro a voice mail message stating the court had granted Montiel’s motion and continued the examination to March 12, but did not mention the order requiring production of documents by March 6. Smurro received a copy of the March 2 order on March 9, 2015.

On March 12, 2015, Smurro appeared in court on a second ex parte motion to continue the exam for medical reasons. Smurro informed the court (1) he had not received the order requiring production of documents until three days after the documents were to have been produced and (2) he had filed a motion to quash the subpoena duces tecum. The court then ordered the production of documents on March 26. When Smurro asked if the production would be subject to his pending motion to quash, the court confirmed it would. The trial court ordered creditors’ counsel to prepare an order for the court’s signature.

On March 17, Smurro filed an objection to the proposed order presumably submitted by creditors’ counsel, stating it did not reflect the court’s ruling at the hearing on March 12. Smurro filed his own proposed order, which continued the debtor’s examination to April 2, and stated Montiel “shall produce responsive documents pursuant to a Subpoena Duces Tecum . . . on March 26, 2015, subject to resolution of any pending Motion to Quash said Subpoena Duces Tecum.” On March 23, 2015, the court entered an order continuing the exam to April 2 and requiring production of documents pursuant to the subpoena by March 26. On March 25, the court denied Montiel’s motion to quash the subpoena duces tecum, and awarded monetary sanctions of $7,615 against Montiel’s counsel payable to creditors’ counsel based on willful failure to comply with the court’s March 2 order and the court’s determination the motion to quash “seem[ed] to be without basis and designed to delay the proceedings.”

After his motion to quash was denied, Montiel provided written responses and produced some documents responsive to the subpoena. Montiel objected to the production of the promissory note and related documents on the ground they were attorney-client privileged communications.

Montiel subsequently applied for and was granted further continuances of the debtor’s examination. On June 2, 2015, the court granted a continuance of the debtor’s exam to June 25, but ordered Montiel to pay creditors’ counsel a monetary sanction of $7,500 based on his “repeated[] and knowing[]” violation of court rules and orders. Montiel appeared on June 25, 2015 and the examination was completed.

In September 2015, creditors filed a motion to compel production of documents pursuant to the subpoena and a request for monetary sanctions. Montiel opposed the motion, contending, among other things, the documents sought were privileged. On December 21, 2015, the court granted the motion to compel, ordering Montiel to produce the promissory note and provide a privilege log for other categories of related documents. Montiel filed a petition for writ of mandate, which this court denied.

By February 2016, Montiel still had not produced the promissory note or a privilege log. Creditors filed a motion for monetary, issue, and evidentiary sanctions. The trial court granted the motion, finding Smurro and Montiel “repeatedly and willfully violated prior orders of this Court at every stage of the litigation, committing an egregious abuse of post-judgment discovery.” The court awarded monetary sanctions of $6,620 against Montiel and Smurro, and granted the requested issue and evidentiary sanctions, finding the promissory note and related documents did not exist (issue sanction), and Montiel was precluded from introducing any evidence related to the note (evidentiary sanction). Montiel filed his notice of appeal the same day.

II. DISCUSSION

A. Appealability

As a preliminary matter, we address the appealability of the trial court’s orders. Creditors note Montiel’s notice of appeal designated only the April 29, 2016 order granting monetary, issue, and evidentiary sanctions and contend his right to challenge matters resolved in the trial court’s earlier orders was forfeited when he failed to seek timely review. Specifically, they assert the March 25, 2015 (motion to quash) and June 2, 2015 (ex parte continuance) orders were immediately appealable under Code of Civil Procedure section 904.1, subdivision (a)(12) because they were orders directing payment of monetary sanctions exceeding $5,000. Since Montiel failed to timely appeal those appealable orders, creditors argue, this court is precluded from reviewing their merits. (§ 906; see Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239 [party must file timely notice of appeal to obtain review of appealable order].)

Though Montiel acknowledges the trial court’s orders imposing monetary sanctions over $5,000 were immediately appealable, he contends the nonmonetary portions of those orders were not appealable at the time they were made. (See Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1431–1433 [order compelling compliance with prior discovery order and awarding monetary sanctions was appealable as to the monetary sanctions but not the order compelling production of documents]; Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211, 215–218 [postjudgment order granting motion to compel discovery was not final determination of rights or obligations of parties].) Further, he asserts the March 25 order denying the motion to quash and March 2, March 23, and June 2 orders continuing the debtor’s examination were not separately appealable when they were entered, because they were not a final determination of the parties’ rights but were made in contemplation of further proceedings if the court orders were not obeyed.

Montiel contends prior nonappealable orders and rulings need not be specified in a notice of appeal from a subsequent appealable order, and accordingly, he was not required to list each of the trial court’s orders in the notice of appeal. He asserts this court may nonetheless review those earlier orders because the trial court’s April 29, 2016 order granting monetary, issue, and evidentiary sanctions was the “final word of the trial court on this discovery dispute. . . . leaving no legal issue for future consideration.”

Postjudgment orders are appealable under section 904.1, subdivision (a)(2) when they raise issues different from those arising from appeal of the judgment and when they affect the judgment or relate to it by enforcing it or staying its execution. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651–652.) As our Supreme Court has observed, postjudgment orders that are nonappealable generally fall into two main categories: (1) orders that, although following an earlier judgment, are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal; and (2) orders that pertain to the preparation of a record for use in a future appeal. (Id. at pp. 652–653.) Here the orders compelling production of documents were made in connection with enforcement of the judgment, and were preliminary to a further order only if the debtor did not comply. At the time the orders were entered, it was not clear the trial court would be required to make any future determination. (See, e.g., SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 750 [noting order granting postjudgment motion to compel did not appear to be preliminary to later decision from which appeal could be taken and judgment debtor did not identify what any future determination may be when underlying judgment fully resolved parties’ rights].)

We acknowledge, however, the state of the law on this issue is uncertain. (See, e.g., Yolanda’s Inc. v. Kahl & Goveia Commercial Real Estate (2017) 11 Cal.App.5th 509, 512–513 [discussing inconsistency in case law as to whether postjudgment discovery orders are appealable but suggesting better approach is to treat them as nonappealable to prevent unnecessary delay and deter concealment of assets]; SCC Acquisitions, Inc. v. Superior Court, supra, 243 Cal.App.4th at pp. 748–750 [surveying cases analyzing whether postjudgment discovery orders are directly appealable and observing “authorities are inconclusive.”].) The weight of present authority suggests postjudgment orders compelling a party to produce documents are nonappealable. (See Yolanda’s Inc., at pp. 512–513; Roden v. AmerisourceBergen Corp., supra, 130 Cal.App.4th at p. 216 [postjudgment order granting motion to compel production of documents not appealable]; Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1215 [postjudgment discovery orders were “ ‘one of the steps taken in the course of a proceeding to obtain’ information pertaining to a judgment debtor’s assets” and were not final appealable orders]; but see Macaluso v. Superior Court (2013) 219 Cal.App.4th 1042, 1048–1049 [postjudgment order compelling third party witness to produce documents at judgment debtor examination is appealable]; Li v. Yan (2016) 247 Cal.App.4th 56, 64, fn. 1 [assuming without discussion postjudgment order compelling production of documents pursuant to subpoena duces tecum is appealable].) Moreover, our courts have held a postjudgment order denying a motion to quash is not appealable. (Rogers v. Wilcox (1944) 62 Cal.App.2d 978, 979 [postjudgment order denying motion to quash debtor examination is nonappealable]; Ahrens v. Evans (1941) 42 Cal.App.2d 738, 739 [postjudgment order denying motion to quash subpoena duces tecum served on third party is not appealable].)

We conclude the March, June, and December 2015 orders were not separately appealable when entered and may be considered as part of Montiel’s appeal from the court’s April 29, 2016 order, which finally determined the rights of the parties as to their dispute. (§ 906 [on appeal of appealable order, appellate court may review “any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the . . . order appealed from . . . .”].)

B. Motion to Dismiss

Before proceeding to the merits of the appeal, we address creditors’ motion to dismiss. After Montiel filed his opening brief on appeal, creditors filed a motion to dismiss premised on the “disentitlement doctrine.” Under the disentitlement doctrine, an appellate court has the inherent power to dismiss an appeal by a party who refuses to comply with a trial court order. (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229.) “ ‘Appellate disentitlement “is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction.” ’ ” (Id. at p. 1230.) California courts have applied the disentitlement doctrine in the context of postjudgment debtor proceedings when debtors act to frustrate creditors’ legitimate efforts to enforce the judgment in the trial court. (See, e.g., id. at pp. 1228, 1232–1233 [dismissing appeal where debtors refused to comply with subpoena seeking financial information in contempt of New York trial court’s orders]; TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 380 (TMS, Inc.) [appeal dismissed where judgment debtors refused to comply with order to respond to postjudgment interrogatories]; Stone v. Bach (1978) 80 Cal.App.3d 442, 448 (Stone) [judgment debtor’s refusal to comply with trial court’s order to deposit partnership funds into trust and appear for examination justified dismissal of appeal].) Creditors here argue Montiel’s repeated defiance of the trial court’s orders to produce the promissory note and a privilege log should bar him from pursuing this appeal.

Under the circumstances of this case, we decline to exercise our discretionary power to dismiss the appeal. Though it appears Montiel repeatedly failed to comply with presumptively valid postjudgment orders, including orders to appear for examination and produce the promissory note and related documents, he eventually appeared for a judgment debtor’s examination, produced some documents and withheld others on a claim of privilege, and has participated in all stages of the legal proceedings contesting the court’s orders, including seeking writ review when his privilege claim was denied. This is not a case like TMS, Inc., supra, 71 Cal.App.4th at page 380, where the judgment debtor fled the jurisdiction, nor like Stone, supra, 80 Cal.App.3d at page 444, where the judgment debtor refused to be sworn for his examination. Moreover, as discussed below, the trial court lacked authority to issue discovery sanctions for Montiel’s failure to comply with the subpoena duces tecum. Though it would arguably be appropriate to dismiss given Montiel’s apparent willful disobedience of the trial court’s orders and frustration of creditors’ legitimate attempts to enforce the judgment for over a year, we opt instead to determine the issues on the merits. (See, e.g., Tobin v. Casaus (1954) 128 Cal.App.2d 588, 592 [“The right to an appeal must not be lightly forfeited, and where a doubt exists as to a litigant’s conduct being contumacious or wilful, an appellate court will tolerate temporarily the acts which were disruptive of the judicial process. We always prefer to resolve a case on its merits . . . .”].)

C. Validity of Subpoena Duces Tecum

Turning to the merits of his appeal, Montiel first contends the subpoena duces tecum was “void” when issued because it is not an authorized method of obtaining documents in a judgment debtor proceeding. He argues the only approved method to obtain documents is by a request for production of documents pursuant to section 708.030. As a result, he claims, the March 2, 2015 order, and every subsequent order compelling the production of documents, was void. We disagree.

The Enforcement of Judgments Law (EJL) provides several remedies for creditors seeking to enforce a money judgment. Under article 1 of chapter 6 of division 2 of the EJL, a judgment creditor can seek written discovery in the form of written interrogatories (§ 708.020, subd. (a)) or inspection demands (§ 708.030, subd. (a)). Under article 2, a judgment creditor may apply to the court for an order requiring the judgment debtor to appear before the court “to furnish information to aid in enforcement of a money judgment.” (§ 708.110, subd. (a).) A judgment creditor may obtain documents in connection with a debtor’s examination either by (1) making a demand for inspection under section 708.030, or (2) by serving a debtor with a subpoena duces tecum in connection with the examination process in section 708.110 et seq. (Lee v. Swansboro Country Property Owners Assn. (2007) 151 Cal.App.4th 575, 581–582 (Lee v. Swansboro); Li v. Yan, supra, 247 Cal.App.4th p. 65 [judgment creditor may obtain documents from debtor by either subpoena duces tecum or discovery request for production]; People v. Pereira (1989) 207 Cal.App.3d 1057, 1066 [“use of a subpoena duces tecum to discover and inspect relevant documents [in postjudgment proceedings] is an accepted practice”].) Here, creditors chose the latter procedure by serving the subpoena duces tecum with the order to appear for examination.

In addition to the statutory and case authority cited above, numerous treatises and practice guides have recognized the use of a subpoena duces tecum as a legitimate method for obtaining documents in a debtor examination. (See, e.g., Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2017) ¶ 6:1301, p. 6G-10 [judgment debtor examination “will usually be more effective if the judgment creditor subpoenas into court documents showing the debtor’s assets and liabilities” and creditor should serve subpoena with the examination order if not sooner]; Cal. Judges Benchbook: Civil Proceedings After Trial (CJER 2017) Witnesses and Discovery, § 7.27, p. 554 [use of subpoena duces tecum in judgment debtor examination is accepted practice]; 1 Goldsmith et al., Matthew Bender Practice Guide: Cal. Debt Collection and Enforcement of Judgments (2017) §§ 10.21, 10.26 [noting debtor examination coupled with subpoena for records on debtor is most effective method for ascertaining debtor’s ability to pay judgment and sources of income and assets]; 2 Goldstein et al., Debt Collection Practice in California (Cont.Ed.Bar 2d ed. 2017) The Debtor’s Property, § 8.37, p. 8-47 [judgment creditor may choose to obtain documents from judgment debtor by subpoena under § 1987 or by document demand under § 708.030].)

Montiel argues Lee v. Swansboro and Li v. Yan are not persuasive because they are dicta, and People v. Pereira is distinguishable because it was decided under prior law. He instead urges us to look to the fact the Legislature expressly incorporated the document demand provisions of the Civil Discovery Act into section 708.030, but made no reference to section 1985 et seq. regarding subpoenas. The plain language of section 708.030, however, does not indicate an inspection demand is the exclusive method of obtaining documents in aid of enforcement of a money judgment. (See Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 [in statutory interpretation, we give words their plain and commonsense meaning].) Rather, it states a judgment creditor “may demand that any judgment debtor produce and permit the party making the demand . . . to inspect and to copy a document” in the manner provided in section 2031.010 et seq. (§ 708.030, subd. (a), italics added.) The use of “may” suggests the method is permissive, not mandatory or exclusive. (See, e.g., Neville v. County of Sonoma (2012) 206 Cal.App.4th 61, 75 [statutes providing commissioner “may” be removed were permissive and not exclusive means for removing commissioner].

Moreover, under section 708.130, subdivision (a), “Witnesses may be required to appear and testify before the court or referee in an examination proceeding under this article in the same manner as upon the trial of an issue.” It is well established a subpoena duces tecum may be served on a party to compel production of documents at trial. (2 Witkin, Cal. Evidence (5th ed. 2012) Discovery, § 221, p. 1199; see Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 810–811 [party served with subpoena duces tecum on eve of trial was required to produce documents].)

Further, Montiel fails to demonstrate how he was prejudiced by the court’s order he produce documents pursuant to a subpoena duces tecum rather than a demand for inspection under section 708.030. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) In light of the statutory provisions, numerous published cases and treatises approving the use of a subpoena duces tecum in connection with a judgment debtor’s examination, and the lack of prejudicial error, we reject Montiel’s claim.

Montiel also contends the subpoena is invalid because it was untimely under section 1987, subdivision (c). That subdivision, however, applies only when a notice to attend described in section 1987, subdivision (b) is used in lieu of a subpoena, which was not the case here. (§ 1987, subd. (c) [“The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5”]; see Ahart, Cal. Practice Guide: Enforcing Judgments and Debts, supra, ¶ 6:1301, p. 6G-10 [noting judgment creditor may serve debtor with notice to produce documents at least 20 days before examination date or any shorter time ordered by court under § 1987, subd. (c) as alternative to subpoena].)

Montiel also argues the subpoena is invalid because it was not supported by a declaration of good cause, but he forfeited his right to raise that issue by failing to assert it in his motion to quash below. (See Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131 [reviewing court ordinarily will not consider claims raised for first time on appeal which were not presented to trial court]; People ex rel. Dept. of Pub. Wks. v. Younger (1970) 5 Cal.App.3d 575, 579 [motion to quash is proper method to test validity of subpoena duces tecum].)

D. Alleged Due Process Violations

Montiel next asserts the trial court committed reversible error when it ordered him to produce documents on March 2 and 23, 2015, without giving him notice or a hearing, in violation of his due process rights. The order first requiring Montiel to produce documents pursuant to the subpoena was filed March 2, 2015, when the court granted Montiel’s ex parte application to continue his debtor’s examination. Though Montiel called in for his ex parte hearing, he was told by the court clerk his papers could not be found and the clerk did not know whether the matter would be heard. Nonetheless, the court issued an order that day, continuing the exam and requiring Montiel to produce documents by March 6. He contends that order, issued without notice or an opportunity to be heard on the document production issue, was void when signed and rendered void each of the trial court’s subsequent orders to produce documents, all of which were based on the first order. He contends the March 23 order was void for the same reason.

For two reasons, we reject Montiel’s argument. First, he forfeited the issue by failing to raise it below. (Gonzalez v. County of Los Angeles, supra, 122 Cal.App.4th at p. 1131; People v. Marchand (2002) 98 Cal.App.4th 1056, 1060 [lack of notice amounting to due process violation can be forfeited where party had opportunity to raise issue below but failed to do so].) Although Montiel arguably did not have adequate notice the trial court might order production of documents on March 2, within three days of receiving the court’s order in the mail, he was back in court requesting another (second) ex parte continuance. There is no evidence he raised the due process issue with the trial court at that time or any time thereafter, including in his reply brief on the motion to quash or at the hearing on the motion to quash.

Second, Montiel waived his due process concerns when he filed objections on March 17, 2015, to a proposed order on his second ex parte application for a continuance of the examination. Montiel submitted his own proposed order agreeing to produce documents by March 26, subject to his motion to quash, which again, did not raise due process concerns. (Civ. Code, § 3515 [“He who consents to an act is not wronged by it.”] & § 3516 [“Acquiescence in error takes away the right of objecting to it.”]; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 397, pp. 454–455 [party’s request for an order may constitute waiver or invited error regarding correctness of rulings involving the subject of the order].)

We also reject Montiel’s arguments the March 25 and June 2, 2015 orders improperly awarded sanctions without identifying the statutory basis for the sanctions award and without proper notice. As Montiel concedes, those orders were final appealable orders under section 904.1, subdivision (a)(12). Because he failed to timely challenge them, we may not consider them now.

E. Attorney-client Privilege

Montiel also asserts the trial court committed reversible error when it ordered him to produce the promissory note and related documents because they were attorney-client privileged communications. As a preliminary matter, we note the trial court’s December 21, 2015 order required Montiel to produce only the promissory note—as to the remaining categories of related documents, the court ordered him to provide a privilege log identifying the basis for the claim of privilege. Because the trial court’s order requiring Montiel to prepare and serve a privilege log did not compel the production of documents related to the promissory note, any claim the order was invalid as a violation of the attorney-client privilege fails as to those documents. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 596.)

As to the promissory note itself, Montiel’s claim likewise must be rejected because he failed to meet his initial burden of showing the privilege applied. As Montiel concedes, “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733; see State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640–641.) Here, Smurro’s declaration filed in support of the opposition to the creditors’ motion to compel contains no facts regarding the existence or purpose of the attorney-client relationship, or indicating the promissory note was a confidential communication or transmission between Montiel and Smurro. Accordingly, we cannot disturb the trial court’s order. (See Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 843 [“ ‘ “unless a claimed privilege appears as a matter of law from the undisputed facts, an appellate court may not overturn the trial court’s decision to reject that claim” ’ ”].) Though we conclude the promissory note is not privileged, we take no position on whether the other requested documents are privileged because that determination is still subject to review by the trial court after the privilege log has been provided.

F. Monetary, Issue, and Evidentiary Sanctions

Montiel contends the trial court’s April 29, 2016 order must be reversed because none of the sanctions awarded were authorized. This contention has merit.

Creditors sought monetary, issue, and evidentiary sanctions under section 2023.030. Section 2023.030, which authorizes a court to impose sanctions for “misuse of the discovery process,” is part of the Civil Discovery Act (§ 2016.010 et seq.). Section 2023.030 allows a court to impose sanctions “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” “This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)

The Civil Discovery Act applies to discovery aiding the enforcement of a money judgment only to the extent provided in sections 708.010 through 708.030. (§ 2016.070.) These sections provide for discovery through written interrogatories (§ 708.020, subd. (a)) and inspection demands (§ 708.030, subd. (a)). These sections do not address judgment debtor examinations under section 708.110, or use of a subpoena duces tecum under section 1985. Therefore, sanctions under the Civil Discovery Act do not apply to the use of a subpoena duces tecum for a judgment debtor examination. The court was not authorized under section 2023.030 to sanction Montiel or his attorney for refusing to comply with its orders to produce documents responsive to the subpoena.

While we are compelled to reverse the final order granting unauthorized discovery sanctions, we can understand and empathize with the frustration that led the trial court to order them. On this record, it appears Montiel has been engaged in a campaign of delay and obstruction that impeded creditors’ legitimate efforts to collect their judgment. Though we conclude the discovery sanctions awarded are not available for violation of the order to produce documents pursuant to the subpoena duces tecum, we note a party may be held in contempt for failure to comply with a subpoena or a valid court order, and other sanctions may be appropriate given proper notice and an opportunity to be heard. (See §§ 1209, subd. (a)(5) & (10), 1991, 177.5.) Montiel’s refusal to produce the promissory note or provide a privilege log is without substantial justification for the reasons stated in this opinion. On remand, we anticipate he will promptly comply with the trial court’s orders if he wishes to avoid those sanctions which are authorized by law.

III. DISPOSITION

The April 29, 2016 order granting monetary, issue, and evidentiary sanctions is reversed. The other orders appealed from, including the March 2, 2015, March 23, 2015, March 25, 2015, June 2, 2015, and December 21, 2015 orders, are affirmed. The parties are to bear their own costs on appeal.

 

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Margulies, J.

We concur:

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Humes, P.J.

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Dondero, J.