Breliant v. Chase CA2/4 ( 2014 )


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  • Filed 4/29/14 Breliant v. Chase CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
    publication or ordered published for purposes of rule 8.1115.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 FOUR
    GIANNA BRELIANT,                                                          B250145
    Plaintiff,                                                       (Los Angeles County
    Super. Ct. No. EC057245)
    v.
    GARY A. CHASE, an Incompetent Person,
    etc.,
    Defendant and Respondent;
    LAWRENCE S. EISENBERG,
    Objector and Appellant.
    APPEAL from an order of the Superior Court of Los Angeles County, Donna
    Fields Goldstein, Judge. Affirmed.
    Eisenberg & Associates and Lawrence S. Eisenberg, in pro. per.; The Arkin
    Law Firm and Sharon J. Arkin for Objector and Appellant.
    Bonne, Bridges, Mueller, O’Keefe & Nichols and Joel Bruce Douglas for
    Defendant and Respondent.
    Attorney Lawrence S. Eisenberg (appellant) appeals from a July 10, 2013 order
    imposing monetary sanctions of $6,000. (Code Civ. Proc., § 2023.030, subd. (a).)
    We reject his contentions and affirm.
    BACKGROUND
    Appellant represents plaintiff Gianna Breliant in this case, which consists of
    two consolidated wrongful death actions.1 Both actions are based on the
    December 11, 2004 drug overdose death of plaintiff’s daughter, Amy Breliant.
    The July 10, 2013 sanctions order was issued in conjunction with the denial of
    plaintiff’s motion to compel the deposition of defendant and respondent Gary A.
    Chase, M.D. (Dr. Chase). The relevant facts are as follows:
    In April 2013, plaintiff served Dr. Chase with a notice to appear for his
    deposition on May 14, 2013, and a request for production of documents. Dr. Chase
    filed a written objection (objection) claiming that: (1) the documents were previously
    produced; (2) the parties had agreed to take Dr. Chase’s deposition after plaintiff’s
    deposition, which had not yet occurred; and (3) due to his Parkinson’s disease and
    dementia, Dr. Chase was “no longer able to meaningfully cooperate in his defense or
    provide responses under oath based upon any information percipient to him.”
    Dr. Chase’s objection was supported by the May 6, 2013 declaration of his
    treating neurologist, Andrew Woo, M.D. (Dr. Woo), which stated as follows: When
    Dr. Woo began treating Dr. Chase in March 2004, he suspected a diagnosis of
    Parkinson’s disease, but saw no signs of any significant cognitive impairment. By
    1      Plaintiff’s first action was filed on November 23, 2011, against defendants
    Stephen S. Marmer, M.D., Eric A. Lifshitz, M.D., and Gary A. Chase, M.D. (Breliant
    v. Marmer (Super. Ct. L.A. County, No. EC057245).) Plaintiff’s second action was
    filed on August 23, 2012, against defendants Warren Boyd, Commerce Resources
    International, Inc., Darryl Fugihara, Seacliff Recovery Center, Carrie Fisher, and Jake
    Schmidt. (Breliant v. Boyd (Super. Ct. L.A. County, No. EC059174).)
    2
    December 2011, Dr. Woo observed sufficient lapses in memory and confusion to
    recommend that Dr. Chase retire from his profession as a psychiatrist. In early 2012,
    Dr. Chase “remained reasonably functional, demonstrating periods of notable
    lucidity.” “However, over the past year Dr. Chase has experienced significant
    cognitive decline. At this time, he has functional problems in short and long term
    memory. He confabulates. He is no longer reliable in sorting fact from fiction or
    confabulation. He is not capable of providing meaningful and reliable information,
    much less now giving testimony under oath. Over the past year, his ability to assist
    counsel in his defense has dramatically declined to the point he cannot meaningful[ly]
    assist at all.”
    I.      The May 29, 2013 Hearing
    On May 29, 2013, the trial court heard several matters that involved questions
    concerning Dr. Chase’s competency: (1) plaintiff’s renewed motion to amend her
    complaint; (2) Dr. Chase’s ex parte application for the appointment of a guardian
    ad litem (which he filed in response to plaintiff’s ex parte application for a hearing
    concerning the appointment of a guardian ad litem for Dr. Chase) (Code Civ. Proc.,
    § 372); and (3) plaintiff’s ex parte application to hold a competency hearing at which
    Dr. Chase and Dr. Woo would be required to testify.
    Before ruling on the above matters, the trial court read and considered
    Dr. Woo’s declaration. The trial court’s May 29 rulings, which are set forth below,
    were based on the information contained in Dr. Woo’s declaration that Dr. Chase was
    no longer “capable of providing meaningful and reliable information, much less . . .
    giving testimony under oath.”
    Plaintiff’s renewed motion to amend her complaint. On May 29, the trial court
    denied plaintiff’s motion to amend on several grounds, including that Dr. Chase
    3
    would be prejudiced by an amendment “given his progressive cognitive
    impairment.”2
    Dr. Chase’s request for the appointment of a guardian ad litem. On May 29,
    the trial court stated that it was “[p]reliminarily granting the application for the
    appointment of Mrs. Chase for Dr. Chase.”
    Plaintiff’s request to schedule a competency hearing. On May 29, the court
    scheduled, at plaintiff’s request, a July 11, 2013 competency hearing regarding
    Dr. Chase. The court stated that at the July 11 hearing, it would hear testimony from
    Dr. Chase’s neurologist, Dr. Woo, and Dr. Chase’s wife, Phyllis Chase, “who wishes
    to be the guardian.”
    As to plaintiff’s request to have Dr. Chase testify at the July 11 hearing, the
    trial court stated at the May 29 hearing: “I am not going to bring Dr. Chase into court
    to demonstrate that he doesn’t know what is going on.” “Why do I need to bring the
    doctor and humiliate him?” “Even the probate court doesn’t bring him in.”
    Plaintiff’s counsel (Russell S. Balisok) pointed out that the “fundamental
    issue” was the reliability of Dr. Chase’s attorney’s representation that Dr. Chase was
    unable to participate in the litigation by verifying discovery responses or submitting to
    a deposition.
    The trial court responded that the issues of Dr. Chase’s ability to provide
    “meaningful or reliable information” and to testify “under oath” would be addressed
    by Dr. Woo at the July 11 hearing.
    Plaintiff’s counsel (appellant) was not satisfied with the court’s reliance on
    Dr. Woo’s testimony and requested to depose both “Dr. Wu [sic] and Dr. Chase” so
    “we can bring all the evidence before the court at the time of the ruling and the court
    will rule accordingly.” The court implicitly denied the request to depose Dr. Woo and
    2      The trial court found that the renewed request to amend was untimely, that an
    amendment would lead to demurrers and the further postponement of a trial that was
    originally scheduled to begin in January 2013, and that an amendment would be
    prejudicial to Dr. Chase “given his progressive cognitive impairment.”
    4
    Dr. Chase by replying, “I will hold a hearing and allow the parties to examine Dr. Wu
    [sic] and Mrs. Chase.”
    II.    The Temporary Stay of All Depositions
    Following the May 29 hearing, the court imposed a temporary stay of all
    depositions. On June 14, 2013, the trial court “ordered that none of the currently
    scheduled depositions are to go forward and that no depositions shall take place in the
    consolidated case until, at the earliest, July 22, 2013.”
    III.   Plaintiff’s Motion to Compel Dr. Chase’s Deposition and Request for
    Sanctions
    On June 17, 2013, plaintiff moved to compel Dr. Chase’s deposition and have
    neuropsychologist Erik Lande, Ph.D., conduct a neuropsychological assessment of
    Dr. Chase. Plaintiff’s motion to compel was set to be heard on July 10, 2013, the day
    before the July 11 competency hearing.
    In her moving papers, plaintiff stated in relevant part: “On April 3, 2013,
    Plaintiff timely served a Notice of Deposition of Dr. CHASE to take place on May 14,
    2013 . . . . On May 9, 2013, Defendant’s counsel served a written objection to the
    CHASE deposition. [Dr. Chase’s objection to the notice of deposition was based] on
    two grounds: (1) Defendant CHASE ‘is no longer able meaningfully to cooper[ate] in
    his defense or provide responses under oath based upon any information percipient to
    him . . . ; and (2) deposition/discovery priority.” (Internal record reference omitted.)
    Plaintiff argued that Dr. Chase’s objection was legally unjustified, because the
    proper remedy was to “seek an appropriate protective order under C.C.P.
    § 2025.420.” Plaintiff contended that Dr. Chase’s attorney (Joel Douglas) had
    “unilaterally and improperly and unjustifiably appointed himself the sole arbiter of the
    scope of Plaintiff’s discovery, by effectively proclaiming his client to be a
    disqualified witness under Evid.C. § 701. . . . Whether Dr. CHASE is ultimately a
    disqualified witness under Evid.C. § 701 is solely a determination within the province
    5
    of this Court to decide.”3 Plaintiff requested $8,010 in sanctions against Dr. Chase’s
    attorneys for objecting to the notice of deposition and request for production of
    documents without seeking a protective order.
    IV.    Dr. Chase’s Opposition to Plaintiff’s Motion to Compel and Request for
    Sanctions
    In opposition to the motion to compel, Dr. Chase argued in relevant part as
    follows: Plaintiff’s motion to compel Dr. Chase’s deposition was improper because
    the method for determining his competency had been decided at the May 29 hearing.
    According to the May 29 ruling, the court would determine Dr. Chase’s competency
    at the July 11 hearing based on the testimony of Dr. Woo and Phyllis Chase; no
    testimony by Dr. Chase would be allowed at the July 11 hearing. Plaintiff never
    raised the issue of a neuropsychological assessment at the May 29 hearing, nor was it
    mentioned in the May 29 order. In order to amend the May 29 ruling, plaintiff must
    file a timely motion for reconsideration, which she failed to do. (Code Civ. Proc.,
    § 1008 [motion for reconsideration must be made within 10 days of service of written
    notice of entry and must be accompanied by a supporting affidavit].)
    Dr. Chase contended that his objection to the notice of deposition was proper.
    He argued that plaintiff’s motion to compel his deposition “flies in the face of the
    court’s June 14, 2013 ruling that no depositions are to be taken until late July, and that
    plaintiff may not take testimony from Dr. Chase until the court has an opportunity to
    decide the question of Dr. Chase’s competency at the very hearing plaintiff
    requested.” In addition, Dr. Chase argued that the motion to compel his deposition
    3       Evidence Code section 701 provides: “(a) A person is disqualified to be a
    witness if he or she is: [¶] (1) Incapable of expressing himself or herself concerning
    the matter so as to be understood, either directly or through interpretation by one who
    can understand him; or [¶] (2) Incapable of understanding the duty of a witness to tell
    the truth. [¶] (b) In any proceeding held outside the presence of a jury, the court may
    reserve challenges to the competency of a witness until the conclusion of the direct
    examination of that witness.”
    6
    was improper in light of the parties’ agreement that plaintiff’s deposition would be
    taken prior to Dr. Chase’s deposition.
    Dr. Chase requested $6,000 in sanctions against plaintiff and her attorneys
    under a number of statutes, including Code of Civil Procedure sections 2023.010 and
    2023.030.4 These sections permit the court to award sanctions against a party and the
    party’s attorneys for “[e]mploying a discovery method in a manner or to an extent
    that causes unwarranted annoyance, embarrassment, or oppression, or undue burden
    and expense,” or for making, “unsuccessfully and without substantial justification, a
    motion to compel . . . discovery.”5 (Code Civ. Proc., § 2023.010, subds. (c), (h).)
    V.     The July 10, 2013 Order Denying Plaintiff’s Motion to Compel and
    Granting Dr. Chase’s Request for Monetary Sanctions
    At the July 10 hearing on plaintiff’s motion to compel, the trial court’s
    tentative ruling (now final order) stated in relevant part: “The Plaintiff appears to
    have filed this motion in bad faith for two reasons. First, the Plaintiff filed the motion
    after the Court hearing on May 29, 2013 regarding appointing a guardian ad litem for
    4       Section 2023.030, subdivision (a) provides: “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 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.”
    5     Dr. Chase’s counsel submitted a declaration stating that Dr. Chase had incurred
    $6,000 in attorney fees in responding to plaintiff’s motion.
    7
    the Defendant, Gary Chase. At that hearing, the Court granted the Defendant’s
    request to appoint his wife, Phyllis Chase, as his guardian ad litem based on evidence
    in the declaration of Andrew Woo, M.D., the treating neurologist for Gary Chase. In
    addition, the Court granted the Plaintiff’s request for a hearing so that the Plaintiff’s
    attorney could examine Dr. Woo regarding the ability of Gary Chase to provide
    testimony under oath and Dr. Chase’s ability to cooperate with his attorney in his
    defense. In addition, the Court granted the Plaintiff’s request to have Phyllis Chase to
    provide testimony at the hearing.
    “A reasonable way to proceed would be to await the Court’s determination at
    the July 11, 2013 hearing before setting a motion to compel the deposition of a
    witness when there is evidence that the witness is not capable of providing
    meaningful and reliable information and cannot ‘sort fact from confabulation.’
    Instead, the Plaintiff’s attorney filed the pending motion. The Plaintiff has offered no
    evidence whatsoever that Dr. Woo engaged in perjury when he offered his opinions.
    Although the Plaintiff is permitted to make extraordinary allegations in her pleadings
    based on information and belief, she must support her requests for Court orders with
    admissible evidence.
    “It is reasonable to draw an inference from the following facts that the
    Plaintiff’s attorney is engaged in litigation conduct to harass and annoy Gary Chase
    under the guise of zealously representing his client:
    “1) the Court has appointed a guardian ad litem for Gary Chase;
    “2) the Court has set a hearing to permit the Plaintiff’s attorney to examine
    Dr. Woo and Phyllis Chase; and
    “3) after the Court made the appointment and set the hearing, the Plaintiff filed
    the pending motion.
    “A second ground to find that the Plaintiff filed this motion in bad faith is that
    on June 14, 2013 the Court issued an order that no scheduled depositions are to go
    forward and that no depositions will take place in the consolidated case until, at the
    earliest, July 22, 2013. Despite this express order barring further depositions, the
    8
    Plaintiff’s attorney filed the pending motion to compel a deposition three days later,
    on June 17, 2013.”
    As to Dr. Chase’s request for monetary sanctions, the trial court found that
    sanctions against plaintiff’s counsel were warranted under Code of Civil Procedure
    sections 2023.010 (filing an unsuccessful motion to compel without substantial
    justification) and 2023.030 (employing a discovery method in a manner or to an
    extent that causes unwarranted annoyance, embarrassment, or oppression, or undue
    burden and expense). The trial court stated: “In the pending case, the Plaintiff’s
    attorney has unsuccessfully filed a motion to compel the deposition of the Defendant,
    Gary Chase. The motion was made without substantial justification because, as noted
    above, the Court has appointed a guardian ad litem for Gary Chase, the Court has set a
    hearing on July 11, 2013 regarding the evidence of Gary Chase’s mental capacity, and
    the Court barred any depositions in this case until, at the earliest, July 22, 2013. It is
    not justified to file a motion to compel a deposition when the Court is engaged in
    making a determination on the witness’ capacity and when the Court has ordered that
    no depositions will go forward. Accordingly, the Court finds that the Plaintiff’s
    attorney has misused discovery and that monetary sanctions should be imposed on
    him.”6
    6       At the July 10, 2013 hearing, the following discussion occurred regarding the
    propriety of the motion to compel: “THE COURT: As I noted, I ordered a stay of
    discovery, had I not? [¶] [APPELLANT]: Yes, on June 14. I [was] advised that,
    although I was not present, Mr. Balisok was present for the plaintiff on the issue of
    the — [¶] THE COURT: You keep sending out discovery. [¶] [APPELLANT]: No,
    that’s not correct, Your Honor. The notice of deposition of Dr. Chase was set — the
    deposition was set for May 14, a month before the court issued its order. [¶] THE
    COURT: Right. But it didn’t happen, and then you moved to compel it after the
    discovery was stayed. [¶] [APPELLANT]: Well, your order said no depositions
    should take place until July 22. I appreciate that. I didn’t intend to do anything in
    violation of that order; but the order didn’t address filing a discovery motion; and the
    deposition that we want to compel of Dr. Chase can certainly be set at the court’s
    discretion on July 22 or thereafter. I didn’t ask for it before that, so that’s not a
    violation of the court’s order. [¶] THE COURT: Your motion is denied, one,
    9
    Appellant timely appealed from the July 10, 2013 order imposing monetary
    sanctions of $6,000. (Code Civ. Proc., § 904.1, subd. (a)(12).)
    DISCUSSION
    I.     Standard of Review
    “‘We review the trial court’s ruling on a discovery sanction under the
    deferential abuse of discretion standard. (Vallbona v. Springer (1996) 
    43 Cal.App.4th 1525
    , 1545.)’ (In re Marriage of Chakko (2004) 
    115 Cal.App.4th 104
    , 108.) ‘A
    court’s decision to impose a particular sanction is “subject to reversal only for
    manifest abuse exceeding the bounds of reason.” (Kuhns v. State of California (1992)
    
    8 Cal.App.4th 982
    , 988.)’ (Electronic Funds Solutions, LLC v. Murphy (2005) 
    134 Cal.App.4th 1161
    , 1183.)” (Doe v. United States Swimming, Inc. (2011) 
    200 Cal.App.4th 1424
    , 1435.)
    because it seeks an order during a discovery stay, and I think it’s improper; and, two,
    I’m not going to order Dr. Chase to a deposition[,] particularly when you know that
    there is a hearing as to his competency. He has a guardian ad litem, and you
    demanded a hearing as to his competency, and then after setting that . . . for
    . . . July 11 . . . I think that was entirely improper and in bad faith, when you know the
    court is going to hear whether or not he is competent to testify . . . .”
    The trial court further stated: “[I]f I find [Dr. Chase] is incompetent, I’m not
    going to subject him to a deposition . . . if I find he has cognitive dysfunction and
    can’t tell facts from fantasy, which is what Dr. Woo has said.” Appellant responded
    that Dr. Woo’s declaration “appears to indicate that Dr. Chase has cognitive
    impairment, [but that] doesn’t make [it] conclusive that he cannot testify. [¶] THE
    COURT: Sir, you have a hearing on that. That’s what is going to happen next. There
    will be no orders until then. [¶] [APPELLANT]: But Dr. Woo is not the final
    decision maker. [¶] THE COURT: The court is. The court is.” Appellant later
    stated: “But you haven’t ordered Dr. Chase to be present. That herein is the problem.
    [¶] THE COURT: I’m not going to order Dr. Chase to be present because I’m not
    going to put Dr. Chase on the stand at this hearing. [¶] [APPELLANT]: How do we
    know that Dr. Chase can’t testify? How do we know that unless we hear from him?
    [¶] THE COURT: I only know from his doctor.”
    10
    “‘In addition, if the trial court reached its decision after resolving conflicts in
    the evidence, or inferences that could be drawn from the evidence, we review those
    factual findings to determine whether they are supported by substantial evidence.
    [Citation.]’ (County of Los Angeles v. Superior Court (2006) 
    139 Cal.App.4th 8
    ,
    12.)” (Pomona Valley Hospital Medical Center v. Superior Court (2012) 
    209 Cal.App.4th 687
    , 692-693.)
    II.    The Trial Court’s Finding That Appellant Misused the Discovery Process
    Is Supported by Substantial Evidence
    Appellant contends the trial court’s finding that he misused the discovery
    process is not supported by substantial evidence. We disagree.
    In his opposition, Dr. Chase requested sanctions under numerous statutes,
    including Code of Civil Procedure sections 2023.010 and 2023.030, which allow the
    court to impose monetary sanctions against a party and the party’s attorneys when
    they misuse the discovery process by “[e]mploying a discovery method in a manner
    or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or
    undue burden and expense,” or by making, “unsuccessfully and without substantial
    justification, a motion to compel . . . discovery.” (Code Civ. Proc., § 2023.010, subds.
    (c), (h).) In granting Dr. Chase’s request for sanctions, the trial court found that
    plaintiff did not have substantial justification to schedule the motion to compel to be
    heard prior to the July 11 hearing because: (1) the dispute as to Dr. Chase’s
    competency was scheduled to be heard at the July 11 hearing; (2) the court had
    previously denied plaintiff’s request to require Dr. Chase to testify at the July 11
    hearing; and (3) the court had stayed all depositions until July 22, 2013.
    Appellant contends the denial of plaintiff’s motion to compel Dr. Chase’s
    deposition was legally unjustified and the notice of Dr. Chase’s deposition was proper
    “under Code of Civil Procedure Section 2017.010 regardless of whether CHASE lacks
    mental capacity, and/or may later be adjudged a disqualified witness under Evidence
    Code § 701.”
    11
    The issue, however, is not whether plaintiff is entitled to take Dr. Chase’s
    deposition at some future date, but whether appellant lacked substantial justification
    to schedule the motion to compel to be heard for the purpose of seeking a ruling on
    the issue of Dr. Chase’s deposition on the day before the July 11 hearing at which
    Dr. Woo and Mrs. Chase would testify as to Dr. Chase’s competency. Even though
    appellant knew that the court would not allow Dr. Chase’s deposition to be taken prior
    to July 22, 2013, he nevertheless scheduled the motion to compel to be heard on
    July 10, before the court had an opportunity to hear Dr. Woo and Mrs. Chase testify.
    On this record, appellant reasonably should have known that seeking a court order on
    July 10 to compel Dr. Chase to testify was unjustified because the court was planning
    to hear Dr. Woo’s testimony on July 11 as to Dr. Chase’s ability to provide
    “meaningful or reliable information” and to testify “under oath.”
    III.   The Trial Court Did Not Abuse Its Discretion in Imposing Sanctions
    Appellant contends the trial court’s order imposing monetary discovery
    sanctions contains “fatally irreconcilable factual inconsistencies.” Appellant points to
    two different passages which he claims are inconsistent because, in his view, the first
    passage states that a guardian ad litem was appointed because Dr. Chase was found to
    be incompetent at the May 29 hearing, while the second passage states that
    Dr. Chase’s competency would not be decided until the July 11 competency hearing.7
    We disagree with appellant’s reading of the first passage. As previously stated,
    the trial court appointed a guardian ad litem at the May 29 hearing only on a
    preliminary basis, subject to any changes resulting from the July 11 competency
    7      The first passage states: “First, the Court found on May 29, 2013 that
    Dr. Chase lacks the capacity to represent himself and that a guardian ad litem should
    be appointed. The Plaintiff offers no legal authority that would permit her to depose a
    witness who lacks capacity to represent him or herself.”
    The second passage states: “It is not justified to file a motion to compel a
    deposition when the Court is engaged in making a determination on the witness’
    capacity and when the Court has ordered that no depositions will go forward.”
    12
    hearing. Because the issue of Dr. Chase’s competency was not fully adjudicated at
    the May 29 hearing, the first passage is not inconsistent with the second passage. We
    read both passages to mean that if Dr. Chase is found incompetent at the July 11
    competency hearing, the guardian ad litem appointment would remain in place.
    Next, appellant contends there was no valid basis to impose sanctions. We are
    not persuaded. Where, as here, an unsuccessful motion to compel a deposition is
    brought without substantial justification, the trial court is authorized to award
    monetary sanctions against the party or the party’s attorney under Code of Civil
    Procedure section 2023.030, subdivision (a). For the reasons discussed above, we
    conclude that regardless whether plaintiff is entitled to take Dr. Chase’s deposition at
    some future date, the record contains sufficient evidence to support the trial court’s
    finding that appellant lacked substantial justification to schedule the motion to compel
    for the day before the July 11 competency hearing.
    IV.    Dr. Chase’s Request for Sanctions on Appeal Is Denied as Untimely
    In the respondent’s brief, Dr. Chase requests sanctions against appellant for
    filing a frivolous appeal. (Code Civ. Proc., § 907, Cal. Rules of Court, rule
    8.276(a)(1).) After appellant objected in the reply brief that Dr. Chase did not file a
    separate motion or supporting declaration, Dr. Chase filed a separate motion for
    sanctions on March 3, 2014.
    We conclude the motion was untimely. According to California Rules of
    Court, rule 8.276(b), the motion must be served and filed no later than 10 days after
    the appellant’s reply brief is due. Under rule 8.212(a)(3), the reply brief is due within
    20 days after the respondent’s brief is filed. In this case, the respondent’s brief was
    filed on December 20, 2013, which means the motion, which was filed more than two
    months later, was untimely.
    13
    DISPOSITION
    The order imposing monetary sanctions is affirmed. Dr. Chase shall recover
    his costs on appeal.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    EDMON, J.*
    We concur:
    WILLHITE, Acting P. J.
    MANELLA, J.
    *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    14
    

Document Info

Docket Number: B250145

Filed Date: 4/29/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021