Sheks Construction Co. v. City of South S.F. CA1/5 ( 2022 )

Filed 12/27/22 Sheks Construction Co. v. City of South S.F. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
SHEKS CONSTRUCTION
COMPANY et al.,
Defendants, Cross- A164798
Complainants, and Appellants,
(San Francisco County
v. Super. Ct. No. CGC-17-557970)
CITY OF SOUTH SAN
FRANCISCO,
Cross-Defendant and
Respondent.
Sheks Construction Company and its owner, Luen Shee Shek
(collectively, Appellants), appeal the trial court’s order granting a motion for
sanctions filed by the City of South San Francisco (City). We affirm.
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BACKGROUND1
In 2017, Ramon Gomez (Plaintiff) filed the underlying personal injury
lawsuit against Appellants and others for injuries allegedly sustained when
he rode his skateboard over a hose. The hose was stretched diagonally across
an intersection, connecting a fire hydrant to a construction site (Site).
According to the police report, Appellants admitted placing the hose in the
intersection in connection with their plumbing work at the Site.
Appellants filed a cross-complaint for equitable indemnity and
contribution against the City, Zers Development Inc. (Zers), and Henry
Zhang. The City successfully moved for summary judgment on Appellants’
cross-complaint and this court affirmed. (Sheks Construction Company et al.
v. City of South San Francisco (June 29, 2022, A163204) [nonpub. opn.].)
1 With its respondent’s brief, the City filed an appendix containing
numerous documents neither filed nor lodged in the superior court. “An
appendix may contain only accurate copies of documents filed with the
superior court in the matter or matters under appeal.” (Aixtron, Inc. v. Veeco
Instruments Inc. (2020) 52 Cal.App.5th 360, 381.) The City also appended to
its respondent’s brief two declarations created for the appellate proceedings.
“ ‘[D]ocuments not before the trial court cannot be included as part of the
record on appeal.’ ” (Mize v. Mentor Worldwide LLC (2020) 51 Cal.App.5th
850, 855, fn. 4.) We grant Appellants’ unopposed motion to strike these
documents and all references to these documents in the City’s respondent’s
brief. In their motion, Appellants contend the City’s conduct is sanctionable
and suggest the City should be ordered to pay attorney fees Appellants
incurred in filing the motion to strike. Appellants did not comply with the
required procedure for seeking sanctions and we therefore decline to consider
imposing monetary sanctions. (Saltonstall v. City of Sacramento (2014)
231 Cal.App.4th 837, 858 [“We deny the request because [the respondent] has
not filed a motion for sanctions along with a declaration supporting the
amount sought.”].)
2
Zers and Zhang are also defendants in Plaintiff’s lawsuit.2 In
deposition testimony, Zhang testified Zers owned the Site and Zhang was the
president of Zers. Zhang further testified Zers hired Janice Pe to
communicate with contractors at the Site, and the police report stated Pe
identified herself to officers as the Site supervisor.
In advance of trial, Appellants issued trial subpoenas to a City building
inspector who performed inspections at the Site and a City planning division
employee who reviewed applications regarding the Site and communicated
with Zers and Zhang about planning division decisions. Appellants also
subpoenaed the custodians of records for the City fire department and
planning division, to authenticate certain records relating to a fire hydrant
use permit for the Site and other records regarding the Site.
The City filed a motion to quash the trial subpoenas, obtain a
protective order against certain further trial subpoenas, and impose
sanctions pursuant to Code of Civil Procedure sections 128.5 and 1987.2.3
The City argued the testimony of the subpoenaed employees would be
cumulative, irrelevant, and/or undisputed, attaching the evidence described
above as well as discovery responses from Zers producing records including
permits for the Site identifying Zers as the owner, a permit application
submitted by Zhang seeking use of a fire hydrant for the Site, and an issued
fire hydrant permit (which expired well before Plaintiff’s fall). The City
sought monetary sanctions for attorney fees incurred in reviewing the trial
subpoenas, meeting and conferring with Appellants’ counsel, and preparing
2 All other defendants have either been dismissed or defaulted.
3 All undesignated section references are to the Code of Civil Procedure.
3
the motion to quash. Appellants opposed the motion.4 According to the
minute order from the hearing on the motion, counsel for Plaintiff joined in
the City’s motion and presented argument. The trial court granted the
motion to quash, issued the requested protective order, and imposed
sanctions against Appellants in the amount requested by the City.
DISCUSSION
Appellants argue the sanctions order fails to provide the factual basis
for the order and constitutes an abuse of discretion.5 The trial court’s order
cites two statutory bases for sanctions, sections 128.5 and 1987.2. We
conclude Appellants have not demonstrated the order was error under section
1987.2, and therefore we need not and do not decide whether section 128.5
provides an independent statutory basis for the order.
Section 1987.2 provides that, in making an order on a motion to quash,
“the court may in its discretion award the amount of the reasonable expenses
incurred in making or opposing the motion, including reasonable attorney’s
fees, if the court finds the motion was made or opposed in bad faith or
without substantial justification or that one or more of the requirements of
the subpoena was oppressive.” (§ 1987.2, subd. (a).) Whether Appellants
opposed the City’s motion “ ‘in bad faith or without substantial justification’
(§ 1987.2, subd. (a), italics added), [is] a question we review for an abuse of
discretion. [Citation.] ‘ “A court’s decision to impose a particular sanction is
4Although the trial date had been continued at the time of Appellants’
opposition, Appellants’ counsel averred Appellants would reissue the
subpoenas in advance of the new trial date.
5In their briefs on appeal, Appellants also challenged the trial court’s
rulings on the motion to quash and protective order. Subsequently, they
withdrew their challenge to all rulings other than the order imposing
sanctions.
4
‘subject to reversal only for manifest abuse exceeding the bounds of
reason.’ ” ’ ” (Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1311
(Evilsizor).)
Appellants first argue the trial court’s order fails to identify the factual
basis justifying the sanctions award. “[S]ection 1987.2 does not contain the
same language of [other sanctions statutes] ... that a written order be issued
setting forth the specific conduct or circumstances justifying the sanctions.”
(First City Properties, Inc. v. MacAdam (1996) 49 Cal.App.4th 507, 515 (First
City Properties).) Nonetheless, “when an appeal is processed on a standard of
abuse of discretion, the party aggrieved must be put on notice of the acts for
which it was sanctioned in order to mount an effective review. Failure to
delineate the grounds for exercise of discretion precludes meaningful review,
a denial of due process.” (Id. at p. 516.) Accordingly, in imposing sanctions
pursuant to section 1987.2, “ ‘The trial court must set forth the factual basis
for the award either in a formal order, a minute order, or in the reporter’s
transcript of the hearing on the motion.’ ” (Evilsizor, supra, 230 Cal.App.4th
at p. 1312; accord, First City Properties, at p. 516 [“We believe the ...
requirement [that the person being sanctioned be told the conduct or
circumstances justifying the sanction] should be read into section 1987.2.”].)
Although Appellants point only to the trial court’s written order, which
does not set forth the factual basis for the sanctions award, the factual basis
need not be in written form but can instead be stated orally by the court at
the hearing. (Evilsizor, supra, 230 Cal.App.4th at p. 1312 [factual basis can
be “in the reporter’s transcript of the hearing on the motion”]; First City
Properties, supra, 49 Cal.App.4th at p. 517, fn. 9 [“a detailed formal order is
not required where the reporter’s transcript and minute order reveal specific
reasons for imposition of sanctions”].) Appellants elected to proceed on
5
appeal without a record of the oral proceedings.6 “ ‘In the absence of a
contrary showing in the record, all presumptions in favor of the trial court’s
action will be made by the appellate court. ...’ ... ‘Consequently, [the
appellant] has the burden of providing an adequate record. [Citation.]
Failure to provide an adequate record on an issue requires that the issue be
resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594,
609.) Appellants have failed to provide an adequate record on the issue of
whether the trial court provided a factual basis for its sanctions order at the
hearing, and the issue is therefore necessarily resolved against Appellants.
Appellants also argue the order is an abuse of discretion. As
Appellants failed to provide an adequate record as to the court’s factual basis,
we presume the court found Appellants’ opposition to the City’s motion to
quash lacked substantial justification.7 “ ‘Substantial justification’ means
‘that a justification is clearly reasonable because it is well grounded in both
law and fact.’ ” (Evilsizor, supra, 230 Cal.App.4th at p. 1312.) Appellants
argue the subpoenaed witnesses’ testimony was relevant to Appellants’ claim
that Zers and Zhang should bear a larger proportionate share of any fault
because the witnesses will provide evidence that “Zers and Mr. Zhang were
building the Project and directed how trades were to obtain water necessary
for their work.” Appellants do not contend any of the subpoenaed witnesses
have knowledge relating to the use of water at the Site, much less to any
6 Although the hearing on the motion to quash was not reported,
Appellants could have used a settled statement. (Cal. Rules of Court,
rule 8.137(b)(A) [an appellant may use a settled statement as the record of
oral proceedings if “[t]he designated oral proceedings in the superior court
were not reported by a court reporter”].)
7 We need not and do not decide whether an order based on Appellants’
bad faith would be an abuse of discretion.
6
direction provided by Zers and Zhang on this issue. There is no indication
the planning department employee ever visited the Site. Although
Appellants deposed the building inspector, they cite no evidence he had any
knowledge regarding use of the hose; instead, they cite only to deposition
testimony that he understood Janice Pe to be “the one in charge” at the Site.
Appellants fail to explain how the custodians of record or even the
subpoenaed documents bear on Zers and Zhang’s direction regarding the use
of water at the Site. Thus, the trial court could reasonably conclude the only
relevant evidence the subpoenaed witnesses might provide was that Zers was
the owner of the Site and Janice Pe was Zers’s onsite representative, and the
court could further reasonably conclude this evidence had already been
admitted to by Zers’s owner in his deposition and was therefore not in
dispute. “[W]e are not free to substitute our discretion for that of the trial
court so long as its ruling ‘was a reasonable exercise of its discretion.’ ”
(Evilsizor, supra, 230 Cal.App.4th at p. 1313.) The trial court’s ruling was
not an abuse of discretion.
DISPOSITION
The order is affirmed. Respondent is awarded its costs on appeal.
7
SIMONS, J.
We concur.
JACKSON, P. J.
BURNS, J.
(A164798)
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