Marriage of Hettinga CA4/2 ( 2023 )

Filed 2/10/23 Marriage of Hettinga CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of CHRISTY AND
GERBEN HETTINGA.
CHRISTY HETTINGA,
E077367
Appellant,
(Super.Ct.No. FAMRS1400253)
v.
OPINION
GERBEN HETTINGA,
Respondent;
AMERICAN BEEF PACKERS, INC.,
Movant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
John L. Dodd & Associates, and John L. Dodd; Brown & Chabonneau, Gregory
G. Brown, and Joseph Dankert for Appellant.
DaCorsi Placencio, and Michael M. Hernandez for Movant and Respondent.
1
Christy and Gerben Hettinga separated after 18 years of marriage. 1 They settled
their marital dissolution action, and the trial court entered judgment pursuant to the
settlement agreement. Christy later moved to set aside the judgment on the basis of
Gerben’s allegedly incomplete disclosure of his income and his ownership interest in
various businesses, including American Beef Packers, Inc. (American Beef Packers).
After a trial on Christy’s motion, the trial court declined to set aside the judgment.
American Beef Packers then moved for sanctions against Christy for misusing the
discovery process before trial. Christy appeals from that order. We affirm.
BACKGROUND 2
A. The Dissolution and Postjudgment Proceeding
In 2015, Christy moved to set aside the judgment of dissolution on the ground that
Gerben had not accurately and fully disclosed his assets and income. Christy claimed
that Gerben and his father, Hein Hettinga, lied to her about the value of GH Dairy (a
company they co-owned along with Hein’s wife), Gerben did not accurately disclose his
income, Gerben falsely claimed to own only 25 percent of American Beef Packers when
1 We refer to Christy, Gerben, and certain other individuals by their first names
because they have the same last name. No disrespect is intended.
2 We grant Christy’s request for judicial notice of the record on appeal in case
number E075687. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) We deny Christy’s
request for judicial notice of the record in case number E076835 (an appeal she took from
a separate posttrial sanctions award), because it is not relevant to our analysis of the
issues in this appeal. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th
415, 422, fn. 2 [“any matter to be judicially noticed must be relevant to a material
issue”].)
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he actually owned 50 percent of the company, and Gerben failed to disclose his
ownership interest in other businesses.
After an 11-day bench trial in 2020, the trial court denied the motion. We affirm
the denial in a separate nonpublished opinion.
B. Posttrial Motion for Sanctions
After the trial court denied Christy’s motion to set aside the judgment, American
Beef Packers moved for sanctions against Christy and her counsel under sections 1987.2,
2023.010, 2023.020, and 2025.410, subdivision (d), of the Code of Civil Procedure.
(Undesignated statutory references are to the Code of Civil Procedure.) American Beef
Packers sought sanctions on the basis of Christy’s alleged abuse of the discovery process.
American Beef Packers sought an award of attorney fees incurred in making or opposing
five specific motions, duplicative subpoenas propounded by Christy, and “[b]riefs, letters,
and other communications with Discovery Referee regarding the Motions to Quash,
Motions to Compel, and apex subpoenas.” The motion was based on (1) attached
declarations filed by two of American Beef Packers’ attorneys and a legal assistant, (2)
attached exhibits that included minute orders, billing records from American Beef
Packers’ attorneys, and subpoenas, (3) a memorandum of points and authorities, (4) “the
pleadings, records, and files” in the action, and (5) any further evidence submitted at the
hearing on the matter.
Christy opposed the motion, arguing that it was time-barred, American Beef
Packers sought attorney fees that were previously requested and denied, American Beef
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Packers had not requested sanctions when the discovery disputes occurred, one of the
motions was never heard by the court, and American Beef Packers failed to specify
which fees were incurred for each underlying motion. She also argued that the trial court
should not award sanctions for conduct related to some of the underlying discovery
motions.
C. Pretrial Discovery Proceedings
In October 2016, the trial court issued a statement of decision on numerous
motions it had previously heard. The court denied Gerben’s motion to dismiss Christy’s
motion to set aside the judgment. The court granted Christy’s motion to compel
discovery from Gerben. The court concluded that Christy was allowed to seek discovery
on her motion to set aside the judgment even though the stipulated judgment between
Christy and Gerben prohibited further discovery. The court “reserve[d] jurisdiction on
any Sanctions under the circumstances of this case.” (Italics omitted.)
Later that month, Christy served American Beef Packers with a subpoena for the
production of documents, with a production deadline the following month. Christy
sought 11 categories of documents from American Beef Packers from January 1, 2013,
through the date of production. American Beef Packers objected. Christy subsequently
withdrew the subpoena.
On January 3, 2017, Christy served a second subpoena for production of
documents on American Beef Packers, with a production deadline later that month.
Christy sought 11 categories of documents from American Beef Packers from January 1,
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2013, through the date of production, including American Beef Packers’ tax returns and
financial statements. The subpoena was not served on counsel for American Beef
Packers. In April 2017, American Beef Packers objected to the subpoena.
In April 2017, American Beef Packers, GH Dairy, and other nonparties moved to
quash subpoenas issued to all of them to produce business records. The motion was
heard on June 14, 2017. While that motion to quash was pending, Christy moved to
compel American Beef Packers to comply with the same January 3, 2017, subpoena that
was the subject of the motion to quash. The motion to compel was scheduled to be heard
on June 27, 2017.
On June 14, 2017, the trial court granted American Beef Packers’ and other
nonparties’ motion to quash. The court ordered Christy’s counsel to “redraft an
appropriate subpoena for both companies, [GH Dairy] and [American Beef Packers] and
any other company believed that [Gerben] has failed to disclose. Th[i]s subpoena needs
to be specific as to the ownership interest of [Gerben], any money by way of salary or
stock or any typ[e] of benefit that he may have received prior to the date of separation.”
(Capitalization omitted.) The court also ordered “all counsel to meet and confer
regarding any objections on [the] document[s] that have been requested” before bringing
the dispute to the court. (Capitalization omitted.)
On June 26, 2017, Christy’s counsel agreed to American Beef Packers’ written
request to take the motion to compel compliance with the quashed subpoena off calendar.
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The following month, Christy filed an ex parte motion for clarification of the
June 14, 2017, order. On September 7, 2017, the court denied the motion.
Nearly one year later, on August 21, 2018, Christy served American Beef Packers
with another subpoena for the production of business records. Christy sought American
Beef Packers’ tax returns and financial statements from 2008 through May 2015, among
other things. Christy also subpoenaed Rabobank, N.A. (Rabobank) for records from the
same period of any loans made to American Beef Packers and for monthly statements for
any accounts held by American Beef Packers.
In September 2018, American Beef Packers’ counsel appeared at a hearing
concerning an ex parte motion to quash filed by GH Dairy and other nonparties
concerning subpoenas Christy had served on various nonparties, including American
Beef Packers and Rabobank. The court quashed certain subpoenas issued to American
Beef Packers and Rabobank because they were previously withdrawn by Christy. The
court set a future hearing date to entertain any requests for attorney fees.
In December 2018, Christy served American Beef Packers with another subpoena
for the production of business records, seeking American Beef Packers’ tax returns and
financial statements (among other records) from 2014 through the date of production.
American Beef Packers moved to quash the subpoenas by joining a motion to quash filed
by GH Dairy. On January 23, 2019, the court referred the third party discovery matters
to a discovery referee. In March 2019, the referee issued a 32-page recommendation
concerning the motion to quash.
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On May 2, 2019, the court heard a motion to compel filed by Christy. Counsel for
American Beef Packers was present. The court denied the motion and reserved
jurisdiction over the issue of sanctions.
D. Posttrial Sanctions Ruling
The court granted American Beef Packers’ posttrial motion for sanctions and
ordered Christy to pay American Beef Packers $38,818. The court issued the order
pursuant to section 2023.010 on the ground that Christy had engaged in “a ‘clear misuse
of the discovery process by persisting without substantial justification in an attempt to
obtain information or materials that are outside the scope of permissible discovery.’” The
court explained that it had allowed Christy to conduct limited discovery to ascertain
Gerben’s “income from American Beef Packers and [to] determine how his ownership
interest changed post marital separation.” Christy “chose to send subpoenas to other
companies who do business with [American Beef Packers] without any showing of a
nexus to the object of the search which was [American Beef Packers]. The first set was
ordered quashed due to overreaching and overbroad. The second set was the same as the
first and as it had previously been quashed, as such the discovery requests can only be
seen as harassment. Additionally, the appointed Discovery Referee recommendations
were consistently finding that the subpoenas went beyond the parameters of the court[’s]
restrictive ruling and had no relation to determining [Gerben’s] income or ownership of
American Beef Packers.”
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DISCUSSION
Christy argues that the trial court abused its discretion by awarding sanctions to
American Beef Packers. She also argues in the alternative that the award should be
reduced because certain portions are not supported by substantial evidence. We are not
persuaded.3
Section 2023.010 sets forth a nonexhaustive list of acts or practices that are
misuses of the discovery process, including “[p]ersisting, over objection and without
substantial justification, in an attempt to obtain information or materials that are outside
the scope of permissible discovery.” (Id., subd. (a).)
Section 2023.030 authorizes a trial court to impose monetary sanctions for abuses
of the discovery process. (Id., subd. (a).) The statute provides: “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.” (Ibid.)
3 Christy argues that if we reverse the trial court’s order denying her motion to set
aside the judgment or the order awarding sanctions to GH Dairy, then we should reverse
the sanctions award to American Beef Packers as well. The argument fails because by
separate opinions we affirm the order denying her motion to set aside the judgment and
the order awarding sanctions to GH Dairy (though we reduce the amount of the award
from $41,092.90 to $40,900.15). In addition, Christy makes various arguments
concerning GH Dairy, which are not relevant to the sanctions awarded to American Beef
Packers and therefore need not be addressed.
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“Discovery sanctions serve to remedy the harm caused to the party suffering the
discovery misconduct. [Citation.] Because discovery sanctions are not designed to
punish, ‘“sanctions should be tailored to serve that remedial purpose, should not put the
moving party in a better position than he would otherwise have been . . . , and should be
proportionate to the offending party’s misconduct.”’” (Kwan Software Engineering, Inc.
v. Henning (2020) 58 Cal.App.5th 57, 74 (Kwan).)
“We review the trial court’s sanctions order for abuse of discretion. As the trial
court has broad discretion in selecting sanctions, ‘we will reverse the trial court only if it
was arbitrary, capricious, or whimsical in the exercise of that discretion.’” (Kwan, supra,
58 Cal.App.5th at p. 73.) We defer to the trial court’s credibility determinations and
draw all reasonable inferences in favor of the ruling. (Ibid.) We review any express or
implied factual determinations for substantial evidence. (Ibid.; West Coast Development
v. Reed (1992) 2 Cal.App.4th 693, 697-698.) We independently review questions of
statutory interpretation. (Kwan, at p. 73.)
We first analyze Christy’s arguments concerning the propriety of awarding
sanctions to American Beef Packers.4 Christy argues that the trial court awarded
4 Christy “disputes the central claim [that American Beef Packers] is a ‘nonparty’
for purposes of these sanctions motions.” The argument is forfeited because Christy did
not make it in the trial court. (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909,920, fn. 3
(Richey).) On the contrary, Christy conceded the point by referring to American Beef
Packers as a “non-party” in her opposition. In any event, Christy was married to Gerben,
not to American Beef Packers. Regardless of the nature of Gerben’s ownership interest
in American Beef Packers, American Beef Packers was not a party to the divorce
proceeding.
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sanctions on the basis of an erroneous understanding of the scope of Christy’s motion to
set aside the judgment. She contends that the court incorrectly believed that discovery
was limited to Gerben’s ownership interest in and income received from American Beef
Packers alone and did not extend to other related businesses. The argument fails because
the court made no such error. The court’s award of sanctions to American Beef Packers
was based on abusive discovery propounded on American Beef Packers or on other
businesses (such as Rabobank) concerning American Beef Packers, which American
Beef Packers consequently had to oppose. The court’s sanctions ruling is not based on an
erroneous assumption that discovery was limited to American Beef Packers. Rather, it is
based on the correct understanding that American Beef Packers properly sought sanctions
only for discovery that related to American Beef Packers but was abusive because it went
beyond the permissible scope of discovery as to American Beef Packers.
Christy next argues that the record in the trial court was not adequate to support an
award of sanctions. She contends that American Beef Packers did not carry its burden of
proof because it only supported its motion with minute orders of the court’s previous
rulings, some of the underlying subpoenas, and attorney billing records without asking
the court to take judicial notice of the underlying motions. Christy did not make that
argument in the trial court, so we do not consider it. (Richey, supra, 60 Cal.4th at p. 920,
fn. 3.) Moreover, the motion stated that it was based on “the pleadings, records, and
files” in the action, in addition to the attached exhibits. Christy did not argue in the trial
court (and does not argue here) that the court could not consider the entire case file in
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deciding the motion. We accordingly do not consider the propriety of American Beef
Packers’ request to have the trial court consider all of the records in the case.5
Christy also argues that because her discovery requests directed at American Beef
Packers were not made in bad faith or without substantial justification, the trial court
abused its discretion by awarding sanctions to American Beef Packers. Christy did not
make that argument in the trial court, so we do not consider it. (Richey, supra, 60 Cal.4th
at p. 920, fn. 3.) Moreover, by awarding sanctions to American Beef Packers under
section 2023.030, the court necessarily found that Christy did not act with substantial
justification. (§ 2023.030, subd. (a).) Christy does not explain how that implied finding
amounted to an abuse of discretion or was not supported by substantial evidence.
We next analyze Christy’s arguments concerning the amount of sanctions
awarded. Christy argues that the trial court abused its discretion by awarding American
Beef Packers the requested amount of sanctions because American Beef Packers did not
specify which billable hours were attributable to each of the underlying motions and
instead submitted a “‘running total’” of billable hours. Christy argues that American
Beef Packers’ submission of the attorneys’ aggregate billable hours violates the statutory
5 In her opening brief on appeal, Christy also notes that in the trial court she
“objected on the ground all [American Beef Packers’] individual motions and oppositions
did not include a notice it was seeking sanctions.” She does not follow that observation
by any legal argument or analysis in support of the objection. We therefore consider any
such argument forfeited. (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670,
681.) Christy does not state that the purpose of her observation is to incorporate by
reference the objection she made in the trial court. In any event, we do not consider
arguments incorporated by reference. (Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 294, fn. 20 (Soukup) [“the Court of Appeal does not permit incorporation by
reference of documents filed in the trial court”].)
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requirement that a motion for sanctions must be “accompanied by a declaration setting
forth facts supporting the amount of any monetary sanction sought.” (§ 2023.040.)
American Beef Packers’ supported its motion with declarations from two attorneys
and a legal assistant. All three attested that they had reviewed the law firm’s attached
billing record and verified that the bill reflected only those fees that were incurred as a
result of Christy’s conduct for which American Beef Packers sought sanctions. Billing
entries for work unrelated to the conduct at issue were redacted. Christy fails to explain
how the attestations do not satisfy section 2023.040’s requirement that a sanctions motion
must be “accompanied by a declaration setting forth facts supporting the amount of any
monetary sanction sought.” (Ibid.) Nothing in the statutory language implies that the
three declarations introduced by American Beef Packers in support of the sanctions
motion were insufficient. Christy does not cite any authority interpreting the statute
otherwise.
Christy argues that the trial court could not “determine which fees were the result
of which discovery request without specificity from counsel.” The argument is irrelevant
because the trial court awarded American Beef Packers the entire amount of attorney fees
requested. The trial court therefore credited the attestations of the attorneys and the legal
assistant and implicitly found that all of the requested attorney fees were incurred as a
result of Christy’s misuse of the discovery process. The court could not otherwise have
awarded American Beef Packers monetary sanctions under section 2023.030, because the
statute requires that the attorney fees awarded as a sanction for misuse of the discovery
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process be incurred “as a result of that conduct.” (§ 2023.030, subd. (a).) Moreover, the
award is supported by substantial evidence because the attorneys and a legal assistant
attested that all of the attorney fees identified on the attached billing records resulted
from the conduct for which American Beef Packers sought sanctions.
Christy also argues separately that the trial court abused its discretion by awarding
sanctions on the basis of each of the underlying discovery motions identified in the
posttrial sanctions motion. Most of the arguments she raises were not made in the trial
court, so we do not consider them. (Richey, supra, 60 Cal.4th at p. 920, fn. 3.) Below we
address only the remaining arguments that were made in the trial court.
Christy argues that the trial court abused its discretion by awarding sanctions on
the basis of her motion to quash heard on June 14, 2017, because “the court specifically
did not order fees and/or sanctions concerning this motion.” To support that contention,
Christy cites the transcript and the minute order from the hearing on June 14, 2017. The
court did not award any attorney fees or sanctions at that hearing, but the court also did
not deny any request for attorney fees or sanctions. Christy does not develop the
argument that the trial court could not later award attorney fees or sanctions if it did not
order them when it ruled on the motion. We will not develop the argument for her.
(Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684.) Rather, the
argument is forfeited because Christy fails to support it with any legal analysis or citation
to legal authority. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th
142, 146 (United Grand).)
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For identical reasons, Christy has forfeited the only argument that she both made
in the trial court and makes on appeal with respect to her motion for clarification heard on
September 7, 2017. Christy claims the award of sanctions based on work done opposing
that motion was an abuse of discretion because “the court neither awarded fees or
sanctions or reserved jurisdiction over the issue.” Christy again does not develop the
argument or provide any legal analysis or authority to support the contention that in order
to award posttrial sanctions based on a pretrial discovery motion the court had to reserve
jurisdiction over the issue or to have previously ordered attorney fees or sanctions. The
argument is consequently forfeited. (United Grand, supra, 36 Cal.App.5th at p. 146.)
Finally, with respect to the category of “[b]riefs, letters, and other communications
with Discovery Referee regarding the Motions to Quash, Motions to Compel, and apex
subpoenas” on which American Beef Packers sought to recover sanctions, Christy points
out that she “argued below no statute authorized sanctions for this generalized activity”
and American Beef Packers did not offer any justification for such an award in its reply
brief. Aside from pointing out that she made the argument in the trial court, however,
Christy does not develop the argument on appeal or support it with legal analysis or
citation to legal authority. The argument is consequently forfeited. (United Grand,
supra, 36 Cal.App.5th at p. 146.) Moreover, we do not consider arguments made in the
trial court and incorporated by reference on appeal (Soukup, supra, 39 Cal.4th at p. 294,
fn. 20), if that is what Christy meant to do.
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For all of the foregoing reasons, we conclude that the trial court did not abuse its
discretion by awarding American Beef Packers $38,818 in sanctions under section
2023.030, subdivision (a), on the basis of Christy’s abuse of the discovery process.
DISPOSITION
The May 7, 2021 order awarding sanctions to American Beef Packers is affirmed.
American Beef Packers shall recover its costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.
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