Castillo v. McCreary CA2/3 ( 2023 )

Filed 2/21/23 Castillo v. McCreary CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
RUTH CASTILLO B317493
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC701497)
v.
DUNCAN J. McCREARY,
Objector and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mel Red Recana, Judge. Reversed.
McCreary and Duncan J. McCreary, in pro. per., for
Objector and Appellant.
Law Offices of Gavril T. Gabriel and Gavril T. Gabriel, for
Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Duncan J. McCreary is the attorney for Nissani
Bros. Chrysler, Chevrolet Nissani Bros., and HK Automotive, Inc.
(collectively, defendants), defendants in a lawsuit brought by
respondent Ruth Castillo. After defendants repeatedly failed to
appear at depositions noticed by Castillo, the trial court imposed
monetary sanctions against defendants and McCreary pursuant
to Code of Civil Procedure section 2025.450.1
We conclude that section 2025.450 did not authorize
monetary sanctions against McCreary based on defendants’
failures to appear at the depositions. We therefore reverse the
order imposing monetary sanctions against McCreary.
FACTUAL AND PROCEDURAL BACKGROUND
I. Initial attempts to depose defendants
Castillo filed a complaint for breach of contract and related
causes of action against several car dealerships, including
defendants. At all times relevant here, McCreary represented
defendants in the lawsuit.
Castillo initially noticed the depositions of defendants’
persons most knowledgeable for November 6 and 7, 2019.2 For
1 All subsequent undesignated statutory references are to
the Code of Civil Procedure.
2 There are some discrepancies between the dates identified
in Castillo’s brief and those identified in the record, but the
discrepancies are not material here. Where such discrepancies
exist, we rely on the declarations filed with the trial court by
Castillo’s counsel on May 19, 2020, in support of Castillo’s
motions to compel. We also note that Chevrolet Nissani Bros. is
sometimes referred to in the record as Nissani Bros. Chevrolet.
2
reasons not clear from the record, Castillo’s counsel took those
depositions off calendar. After McCreary failed to provide
available dates to schedule the depositions, Castillo filed motions
to compel the depositions.
Hoping to resolve the matter informally, Castillo later took
the motions off calendar and re-noticed the depositions of Nissani
Bros. Chrysler and Chevrolet Nissani Bros. for December 12,
2019. But McCreary never confirmed his or his clients’
availability for those dates, so Castillo took those depositions off
calendar too.
Castillo re-noticed the depositions for January 23, 2020.
Once again McCreary failed to confirm defendants’ availability
for the depositions, so once again Castillo took the depositions off
calendar.
Castillo then rescheduled the depositions of Nissani Bros.
Chrysler and Chevrolet Nissani Bros. for June 16, 2020, and the
deposition of HK Automotive, Inc. for June 18, 2020.3 McCreary
and defendants failed to appear at those depositions.
Hence, Castillo re-noticed the depositions for June 23,
2020. Again, neither McCreary nor defendants appeared.
Finally, Castillo re-noticed the depositions for July 21,
2020, after McCreary confirmed that he and defendants were
available on that date. However, McCreary emailed Castillo’s
We use the former name here, which is how the trial court
identifies the defendant in its sanctions order.
3 The depositions for Nissani Bros. Chrysler and Chevrolet
Nissani Bros. were initially scheduled for June 11, 2020, but at
McCreary’s request Castillo rescheduled the depositions to June
16, 2020.
3
counsel on the date of the depositions stating that McCreary had
been “trying to confirm with” his client representatives but
“[t]hey are not calling [him] back,” and that McCreary was
“unsure what is going on.” Although McCreary appeared at the
depositions, his clients did not.4
II. Motion to compel
Relying on section 2025.450, Castillo filed motions seeking
to compel the deposition attendance of defendants’ persons most
knowledgeable and monetary sanctions against defendants and
McCreary.
Nissani Bros. Chrysler and Chevrolet Nissani Bros.
opposed the motions.5 They submitted the declaration of their
person most knowledgeable, who stated that she was unable to
attend the depositions on July 21, 2020, “because the dealership
was shut down due to an outbreak of COVID-19 amongst the
employees and [she] could not access the login from [her] home.”6
They also argued that section 2025.450 did not authorize the trial
court to impose monetary sanctions on McCreary based on
defendants’ failures to appear at the depositions.
4 The declarations submitted by Castillo’s counsel in support
of Castillo’s motions to compel state that McCreary did not
appear at the depositions. But a transcript attached to the
declarations shows that McCreary did appear.
5 HK Automotive, Inc. did not file an opposition because it
appears it was not an active corporation at the time the
oppositions were due.
6 The oppositions did not address defendants’ failure to
attend the depositions scheduled for June 16, 18, and 23, 2020.
4
At the hearing on Castillo’s motions, the trial court ordered
the parties to meet and confer about scheduling the depositions
and continued the hearing. At the continued hearing, the parties
advised the court that they had scheduled the depositions for
August 24, 2021. The court thus continued the hearing again.
On August 20, 2021, four days before the scheduled
depositions, McCreary emailed Castillo’s counsel and asked to
reschedule the depositions because, according to McCreary,
defendants’ person most knowledgeable had “been rushed to the
hospital due to complications with COVID-19.” The depositions
did not proceed on August 24, 2021.
A week later, Castillo’s counsel filed a declaration stating
that he had asked McCreary for evidence of the deponent’s
hospital admission, but that he had not received any such
evidence. The next day, McCreary filed a declaration stating that
the deponent was unable to attend the depositions “due [to] being
in the hospital with COVID-19.” McCreary attached the
deponent’s purported “medical records” to his declaration.
Attached were two screen shots from an unidentified site
providing almost no information, and which failed to clearly
indicate that the deponent had been admitted to the hospital.
Following the continued hearing on Castillo’s motions to
compel, the trial court ordered monetary sanctions of attorney
fees and costs against McCreary and defendants jointly and
severally in the total amount $6,577.42.7 The trial court’s order
7 The trial court ordered sanctions of $2,327.32 against HK
Automotive, Inc. and McCreary; $1,898.85 against Nissani Bros
Chrysler and McCreary; and $2,351.25 against Chevrolet Nissani
Bros and McCreary.
5
does not cite any statutory or other authority in support of its
imposition of sanctions.
DISCUSSION
McCreary argues that section 2025.450, the discovery
statute Castillo relied upon in seeking monetary sanctions,
authorizes such sanctions only against the deponent or party
affiliated with the deponent. He contends that the trial court
therefore erred by imposing monetary sanctions on him for
defendants’ failures to appear at the depositions.8
Before we address the merits of McCreary’s appeal, we
briefly address the timeliness of his notice of appeal. Although
no party raised the issue, we raised the issue sua sponte and
asked for supplemental briefs. (See Drum v. Superior Court
(2006) 139 Cal.App.4th 845, 849 [“[B]ecause the timeliness of an
appeal poses a jurisdictional issue, we must raise the point sua
sponte.”].)
I. Timeliness of notice of appeal
The timeliness of McCreary’s notice of appeal is governed
by California Rules of Court, rule 8.104.9 Subsection (a)(1)
provides that “[u]nless a statute or rules 8.108, 8.702, or 8.712
8 McCreary further contends that the trial court erred
because Castillo failed to produce evidence demonstrating
McCreary had any role in defendants’ failures to appear.
Because we agree with McCreary that section 2025.450 did not
authorize monetary sanctions against him, we do not address this
argument.
9 All subsequent references to “Rule” are to the California
Rules of Court.
6
provides otherwise, a notice of appeal must be filed on or before
the earliest of: (A) 60 days after the superior court clerk serves
on the party filing the notice of appeal a document entitled
‘Notice of Entry’ of judgment or a filed-endorsed copy of the
judgment, showing the date either was served; (B) 60 days after
the party filing the notice of appeal serves or is served by a party
with a document entitled ‘Notice of Entry’ of judgment or a filed-
endorsed copy of the judgment, accompanied by proof of service;
or (C) 180 days after entry of judgment.” (Rule 8.104(a)(1)(A)–
(C).) “As used in (a) . . . ‘judgment’ includes an appealable order
if the appeal is from an appealable order.” (Rule 8.104(e).) “The
entry date of an appealable order that is entered in the minutes
is the date it is entered in the permanent minutes.” (Rule
8.104(c)(2).)
The appealable order here is the trial court’s September 3,
2021 minute order imposing sanctions. (See § 904.1, subd. (a)(12)
[authorizing appeal “[f]rom an order directing payment of
monetary sanctions by a party or an attorney for a party if the
amount exceeds five thousand dollars ($5,000)”]; Lindsey v.
Conteh (2017) 9 Cal.App.5th 1296, 1302.) The minute order
states it is “signed and filed this date,” but is not filed-endorsed.10
10 In 2016, Rule 8.104 was amended to substitute the phrase
“filed-endorsed” for “file-stamped.” (See Rule 8.104, Historical
Notes [“The Jan. 1, 2016 amendment, in subds. (a)(1)(A),
(a)(1)(B), and (a)(3), substituted ‘filed-endorsed’ for ‘file-
stamped.’ ”].) In City of Calexico v. Bergeson (2021) 64
Cal.App.5th 180 (Calexico), at page 186, footnote 11, the court
described a filed-endorsed minute order as follows: “The
September 24 ruling that the clerk sent to the parties contains a
stamp stating: ‘Endorsed’; the date (Sept. 24, 2019); the trial
7
The minute order states, “The clerk is to give notice. [¶]
Certificate of Mailing is attached.” The certificate of mailing is
filed-endorsed September 3, 2021, and states that the minute
order was served on McCreary and Castillo’s counsel on
September 7, 2021.
McCreary filed his notice of appeal on December 17, 2021,
more than 60 days after the trial court served the minute order,
but less than 180 days after entry of the minute order. Thus, if
the trial court’s service of the minute order triggered Rule
8.104(a)(1)(A), McCreary’s appeal is untimely. If not, McCreary’s
appeal is governed by Rule 8.104(a)(1)(C) and therefore timely.
Our Supreme Court has explained that, at least for some
purposes, we may treat a minute order and attached certificate of
mailing as a single document. (See Alan v. American Honda
Motor Co., Inc. (2007) 40 Cal.4th 894, 905 (Alan).) In Alan, the
superior court clerk mailed the parties two documents in a single
envelope—a file-stamped copy of a statement of decision denying
class certification, and a minute order without a file stamp which
described the issuance of the statement of decision and showed
the date it and the statement of decision were mailed. (Id. at
p. 898.) Alan held the clerk’s mailing did not trigger former Rule
judge’s name; the clerk of court’s name; and a deputy clerk’s
name.”
In his supplemental brief, Castillo asserts the minute order
is filed-endorsed because the text of the order states it is “signed
and filed this date.” We disagree. The minute order does not
contain any file endorsement like that described in Calexico.
8
8.104(a)(1)11 because the file-stamped statement of decision was
not an appealable order, and the appealable minute order, which
showed the date it was mailed, was not file-stamped. (Id. at
pp. 901–902.)
Alan instructed that former Rule 8.104(a)(1) “require[s] a
single document—either a ‘Notice of Entry’ so entitled or a file-
stamped copy of the judgment or appealable order—that is
sufficient in itself to satisfy all of the rule’s conditions, including
the requirement that the document itself show the date on which
it was mailed.” (Alan, supra, 40 Cal.4th at p. 905.) Relevant
here, however, Alan further explained as follows: “[W]e see no
reason why the clerk could not satisfy the single-document
requirement by attaching a certificate of mailing to the file-
stamped judgment or appealable order, or to a document entitled
‘Notice of Entry.’ Obviously a document can have multiple
pages.” (Ibid.)
Given this guidance in Alan, it is at least arguable that the
clerk’s service of the minute order together with the filed-
endorsed certificate of mailing satisfied the requirements of Rule
11 The former version of Rule 8.104 at issue in Alan has since
been amended, but not in a manner that is material here. The
version of Rule 8.104(a) at issue in Alan provided that an appeal
had to be filed “ ‘[¶] (1) 60 days after the superior court clerk
mails the party filing the notice of appeal a document entitled
“Notice of Entry” of judgment or a file-stamped copy of the
judgment, showing the date either was mailed; [¶] (2) 60 days
after the party filing the notice of appeal serves or is served by a
party with a document entitled “Notice of Entry” of judgment or a
file-stamped copy of the judgment, accompanied by proof of
service; or [¶] (3) 180 days after entry of judgment.’ ” (Alan,
supra, 40 Cal.4th at p. 898.)
9
8.104(a)(1)(A), thus triggering a 60-day deadline to appeal. But
we are not aware of any courts to have taken that approach and
we decline do so here.
Alan emphasized the “ ‘the well-established policy, based
on the remedial character of the right to appeal, of according that
right in doubtful cases “when such can be accomplished without
doing violence to applicable rules.” ’ ” (Alan, supra, 40 Cal.4th at
p. 901; see also id. at p. 902.) Alan further noted that this
principle of construction “has led courts interpreting rule
8.104(a)(1) and its predecessors to hold that documents mailed by
the clerk do not trigger the 60-day period for filing a notice of
appeal unless the documents strictly comply with the rule. . . .
Thus, courts have consistently held that the required ‘document
entitled “Notice of Entry” ’ (rule 8.104(a)(1)) must bear precisely
that title, and that the ‘file-stamped copy of the judgment’ (ibid.)
must truly be file stamped.” (Id. at pp. 902–903, italics added;
see, e.g., MSY Trading Inc. v. Saleen Automotive, Inc. (2020) 51
Cal.App.5th 395, 401 [180-day deadline for appeal applied where
appealable order served by clerk “was neither file stamped nor
entitled ‘notice of entry’ ”]; Bi-Coastal Payroll Services, Inc. v.
California Ins. Guarantee Assn. (2009) 174 Cal.App.4th 579, 586
[deadline to appeal not triggered by clerk’s mailing of minute
order that that was not entitled “Notice of Entry” and was not
file-stamped].)
Here, the trial court’s minute order is not “truly” filed-
endorsed. (Alan, supra, 40 Cal.4th at p. 903.) Instead, the
attached certificate of mailing is filed-endorsed. Although Alan
held that we could treat a minute order and certificate of mailing
as a single document, we conclude it did so only for purposes of
satisfying the requirement in Rule 8.104(a)(1)(A) that the minute
10
order “itself show the date on which it was mailed.” (Alan, at
p. 905.) As we read Alan, it does not permit us to substitute a
filed-endorsed certificate of mailing for a minute order that is not
filed-endorsed, even if the two documents may otherwise be
treated as a single document for purposes of Rule 8.104(a)(1)(A).
(See Alan, at p. 905 [allowing clerk to “satisfy the single-
document requirement by attaching a certificate of mailing to the
file-stamped judgment or appealable order” (italics added)].)
Particularly apt here, Alan observed that Rule 8.104(a)(1) “does
not require litigants to glean the required information from
multiple documents or to guess, at their peril, whether such
documents in combination trigger the duty to file a notice of
appeal.” (Alan, at p. 905.)
We therefore conclude McCreary’s appeal was governed by
Rule 8.104(a)(1)(C) and is timely.
II. Standard of review
“We review an order imposing discovery sanctions under
the abuse of discretion standard.” (New Albertsons, Inc. v.
Superior Court (2008) 168 Cal.App.4th 1403, 1422 (New
Albertsons).) “An abuse of discretion occurs if, in light of the
applicable law and considering all of the relevant circumstances,
the court’s decision exceeds the bounds of reason and results in a
miscarriage of justice.” (Ibid.)
“The abuse of discretion standard affords considerable
deference to the trial court, provided that the court acted in
accordance with the governing rules of law.” (New Albertsons,
supra, 168 Cal.App.4th at p. 1422.) “Thus, ‘where the propriety
of a discovery order turns on statutory interpretation, an
appellate court may determine the issue de novo as a question of
11
law. [Citation.]’ ” (Haniff v. Superior Court (2017) 9 Cal.App.5th
191, 198.)
When we interpret a statute, our task “ ‘is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first
examine the statutory language, giving it a plain and
commonsense meaning. We do not examine that language in
isolation, but in the context of the statutory framework as a
whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the language is
clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the
Legislature did not intend. If the statutory language permits
more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and
public policy.’ ” (Sierra Club v. Superior Court (2013) 57 Cal.4th
157, 165–166.)
III. The trial court erred by sanctioning McCreary for
his clients’ failures to appear at the depositions
Discovery is generally governed by the Civil Discovery Act
(Discovery Act). (See § 2016.010 et seq.) “The Discovery Act
provides a self-executing process for litigants to obtain broad
discovery with a minimum of judicial intervention.” (City of Los
Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th
466, 498 [300 Cal.Rptr.3rd 432], review granted Jan. 25, 2023,
S277211 (City of Los Angeles).) “To accomplish this exchange, the
Discovery Act sets forth six methods of civil discovery in different
chapters: depositions, interrogatories, inspections, medical
examinations, requests for admission, and exchanges of expert
witness information.” (Ibid., citing § 2019.010.)
12
“Each discovery method authorizes the court to impose
specific types of sanctions under specific circumstances.” (City of
Los Angeles, supra, 84 Cal.App.5th at p. 498, rev.gr.) “When a
discovery motion is filed, the statute governing the motion
generally requires that the court impose a monetary sanction
against a party, person, or attorney who unsuccessfully made or
opposed the motion, unless the person subject to the sanction
acted with substantial justification or sanctions would be unjust
under the circumstances.” (Ibid.)
Chapter 9 of the Discovery Act addresses oral depositions.
(See §§ 2025.010–2025.620.) Relevant here, section 2025.450,
subdivision (a) provides, in part, “If, after service of a deposition
notice, a party to the action or an officer, director, managing
agent, or employee of a party, or a person designated by an
organization that is a party under Section 2025.230, without
having served a valid objection under Section 2025.410, fails to
appear for examination . . . the party giving the notice may move
for an order compelling the deponent’s attendance and
testimony . . . .” Subsection (g)(1) provides that if “a motion
under subdivision (a) is granted, the court shall impose a
monetary sanction under Chapter 7 (commencing with Section
2023.010) in favor of the party who noticed the deposition and
against the deponent or the party with whom the deponent is
affiliated, unless the court finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.”
(§ 2025.450, subd. (g)(1), italics added.)
McCreary relies on the language italicized above in section
2025.450, subdivision (g)(1), and argues that the trial court
lacked authority to impose monetary sanctions on him because of
13
defendants’ failures to appear at the depositions. Based on the
plain language of section 2025.450, subdivision (g)(1), we agree
with McCreary that defendants’ failures to appear at the
depositions authorized the trial court to impose monetary
sanctions only “against the deponent or the party with whom the
deponent is affiliated” (§ 2025.450, subd. (g)(1)), i.e., McCreary’s
clients. (See Sierra Club v. Superior Court, supra, 57 Cal.4th at
p. 165 [“ ‘We first examine the statutory language, giving it a
plain and commonsense meaning.’ ”].) We find nothing in section
2025.450 that authorizes a trial court to impose monetary
sanctions against an attorney for a party’s failure to appear at a
deposition.
That omission is telling, because other provisions of the
Discovery Act specifically authorize monetary sanctions against
an attorney. (See Sierra Club v. Superior Court, supra, 57
Cal.4th at p. 165 [“ ‘We do not examine that language in isolation,
but in the context of the statutory framework as a whole in order
to determine its scope and purpose and to harmonize the various
parts of the enactment.’ ”].) Indeed, the Discovery Act is replete
with provisions authorizing a trial court to impose monetary
sanctions against a “party, person, or attorney,” including
sections relating to written depositions;12 interrogatories;13
12 See §§ 2028.040, subd. (c) [motion to sustain objection];
2028.050, subd. (c) [motion to overrule objection].
13 See §§ 2030.090, subd. (d) [motion for protective order];
2030.290, subd. (c) [motion to compel response]; 2030.300, subd.
(d) [motion to compel further response]; 2030.310, subd. (d)
[motion to deem binding initial answer].
14
inspection demands;14 physical and mental examinations;15
requests for admission;16 and exchanges of expert witness
information.17 Even certain provisions of the Discovery Act
regarding oral depositions, such as motions to quash or for
protective orders, authorize a trial court to impose monetary
sanctions against a “party, person, or attorney.”18 The Discovery
14 See §§ 2031.060, subd. (h) [motion for protective order];
2031.300, subd. (c) [motion to compel response]; 2031.310, subd.
(h) [motion to compel further response]; 2031.320, subd. (b)
[motion to compel compliance].
15 See §§ 2032.240, subd. (c) [motion to compel response];
2032.250, subd. (b) [motion to compel compliance]; 2032.510,
subd. (f) [motion for protective order]; 2032.620, subd. (b) [motion
to compel delivery of medical reports]; 2032.650, subd. (b) [motion
to compel delivery of previous or subsequent medical reports].
16 See §§ 2033.080, subd. (d) [motion for protective order];
2033.290, subd. (d) [motion to compel further response].
Monetary sanctions are also authorized against a “party or
attorney, or both” in connection with a motion to deem admitted
“the genuineness of any documents and the truth of any matters
specified” in unanswered requests for admission. (§ 2033.280,
subds. (b) & (c).)
17 See §§ 2034.250, subd. (d) [motion for protective order];
2034.470, subd. (g) [motion to set expert witness fee]; 2034.630
[motion to augment or amend expert witness information];
2034.730 [motion to submit tardy expert witness information].
18 See §§ 2025.260, subd. (d) [motion to increase travel limits
for party deponent]; 2025.410, subd. (d) [motion to quash
deposition notice]; 2025.420, subd. (h) [motion for protective
order]; 2025.480, subd. (j) [motion to compel answers or
15
Act also authorizes a trial court to impose monetary sanctions
against a “party, person, or attorney” in connection with motions
to extend or reopen discovery (see § 2024.050, subd. (c)), and
motions addressing certain types of discovery in civil cases
alleging sexual harassment, sexual assault, or sexual battery (see
§ 2017.220, subd. (b)). Finally, the Discovery Act authorizes a
trial court to impose a monetary sanction “[n]otwithstanding the
outcome of the particular discovery motion” against “any party or
attorney who fails to confer as required.” (§ 2023.020.)
Yet, as noted above and in contrast to these provisions,
section 2025.450, subdivision (g)(1) authorizes imposition of
monetary sanctions against only “the deponent or the party with
whom the deponent is affiliated.” Because the Discovery Act
expressly authorizes a trial court to impose monetary sanctions
against an attorney in some instances, we must assume the
Legislature’s omission of such authority in section 2025.450,
subdivision (g)(1) was by design. (See Jarman v. HCR
Manorcare, Inc. (2020) 10 Cal.5th 375, 385 [“ ‘When one part of a
statute contains a term or provision, the omission of that term or
provision from another part of the statute indicates the
Legislature intended to convey a different meaning.’ ”]; Pasadena
Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564,
576 [“When the Legislature ‘has employed a term or phrase in
production]; 2025.520, subd. (h) [motion to suppress]; 2025.530,
subd. (f) [same]. Monetary sanctions are also authorized against
a “party, or the attorney for that party, or both” in certain
instances. (See §§ 2025.430 [failure to attend or proceed with
deposition by party giving notice]; 2025.440, subd. (a) [failure to
serve required deposition subpoena].)
16
one place and excluded it in another, it should not be implied
where excluded.’ ”].)
Castillo contends that two other sections of the Discovery
Act authorized the trial court’s imposition of monetary sanctions
against McCreary due to defendants’ failures to appear at the
depositions: sections 2023.01019 and 2023.030, subdivision (a).20
19 Section 2023.010 states in full: “Misuses of the discovery
process include, but are not limited to, the following: [¶] (a)
Persisting, over objection and without substantial justification, in
an attempt to obtain information or materials that are outside
the scope of permissible discovery. [¶] (b) Using a discovery
method in a manner that does not comply with its specified
procedures. [¶] (c) Employing a discovery method in a manner or
to an extent that causes unwarranted annoyance,
embarrassment, or oppression, or undue burden and expense. [¶]
(d) Failing to respond or to submit to an authorized method of
discovery. [¶] (e) Making, without substantial justification, an
unmeritorious objection to discovery. [¶] (f) Making an evasive
response to discovery. [¶] (g) Disobeying a court order to provide
discovery. [¶] (h) Making or opposing, unsuccessfully and without
substantial justification, a motion to compel or to limit discovery.
[¶] (i) Failing to confer in person, by telephone, or by letter with
an opposing party or attorney in a reasonable and good faith
attempt to resolve informally any dispute concerning discovery, if
the section governing a particular discovery motion requires the
filing of a declaration stating facts showing that an attempt at
informal resolution has been made.”
20 Section 2023.030, subdivision (a) states as follows: “To the
extent authorized by the chapter governing any particular
discovery method or any other provision of this title, the court,
after notice to any affected party, person, or attorney, and after
opportunity for hearing, may impose the following sanctions
17
We disagree. As City of Los Angeles recently concluded, the
“plain language of the statutory scheme does not provide for
monetary sanctions to be imposed based solely on the definitional
provisions of sections 2023.010 or 2023.030, whether construed
separately or together.” (City of Los Angeles, supra, 84
Cal.App.5th at p. 475, rev.gr.)
“Section 2023.010 describes general categories of discovery
misconduct, but does not contain any language that authorizes
the court to impose sanctions for the conduct listed.” (City of Los
Angeles, supra, 84 Cal.App.5th at p. 500, rev.gr.) “Instead, each
of the categories of misconduct listed in section 2023.010 are
managed through the procedures set forth in the chapters
governing the discovery methods, as well as the other provisions
of the Discovery Act that regulate and sanction misconduct.”
(Ibid.) Castillo contends defendants’ failures to attend the
depositions constituted “[f]ailing to respond or to submit to an
authorized method of discovery.” (§ 2023.010, subd. (d).) Castillo
further contends that defendants, with McCreary’s assistance,
against anyone engaging in conduct that is a misuse of the
discovery process: [¶] (a) 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. The court may also impose
this sanction on one unsuccessfully asserting that another has
engaged in the misuse of the discovery process, or on any
attorney who advised that assertion, or on both. 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.”
18
“oppos[ed], unsuccessfully and without substantial justification, a
motion to compel . . . discovery.” (§ 2023.010, subd. (h).) But we
agree with City of Los Angeles that these provisions are not
independent statutory authority to impose monetary sanctions.
(See City of Los Angeles, supra, 84 Cal.App.5th at pp. 500–502,
rev.gr.)
Similarly, “[s]ection 2023.030 authorizes a court to impose
the specified types of sanctions, ‘[t]o the extent authorized by the
chapter governing any particular discovery method or any other
provision of this title,’ ” meaning that “the statutes governing the
particular discovery methods limit the permissible sanctions to
those sanctions provided under the applicable governing
statutes.” (New Albertsons, supra, 168 Cal.App.4th at p. 1422;
City of Los Angeles, supra, 84 Cal.App.5th at p. 503, rev.gr. [“The
plain language of the statute requires sanctions under section
2023.030 to be authorized by another provision of the Discovery
Act.”]; see also London v. Dri-Honing Corp. (2004) 117
Cal.App.4th 999, 1003–1006 [construing former section 2023,
subdivision (b)].) Thus, because section 2025.450, subdivision
(g)(1) does not authorize imposition of monetary sanctions
against an attorney for a party’s failure to appear at a deposition,
Castillo’s reliance on section 2023.030 is misplaced.
Last, Castillo cites Rule 3.1348(a),21 but we find nothing in
that rule suggesting it authorizes imposition of monetary
21 Rule 3.1348(a) provides, “The court may award sanctions
under the Discovery Act in favor of a party who files a motion to
compel discovery, even though no opposition to the motion was
filed, or opposition to the motion was withdrawn, or the
requested discovery was provided to the moving party after the
motion was filed.”
19
sanctions independent of the Discovery Act. To the contrary, it
provides that a “court may award sanctions under the Discovery
Act” (Rule 3.1348(a), italics added), and, as we have already
described, the Discovery Act did not authorize monetary
sanctions against McCreary due to defendants’ failures to appear
at depositions.
DISPOSITION
The court’s order imposing monetary sanctions against
McCreary is reversed. McCreary is entitled to his costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
20