Malinowski v. Martin CA1/3 ( 2024 )

Filed 9/16/24 Malinowski v. Martin CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FIRST APPELLATE DISTRICT
DIVISION THREE
KAMILA MALINOWSKI,
Plaintiff and Appellant,
A167482
v.
JUSTIN STEVEN MARTIN, (San Mateo County
Super. Ct. No. 18-FAM-02115-A)
Defendant,
ROBIN PRESS, PH.D.
Real Party in Interest and
Respondent.
Kamila Malinowski appeals from an interlocutory order of the trial
court that: (1) denied her motion to compel the compliance of real party in
interest and respondent, Robin Press, Ph.D., with a deposition subpoena for
business records; (2) imposed $1,345.50 in monetary sanctions on Malinowski
for failure to meet and confer prior to bringing the motion; and (3) granted, in
part, Malinowski’s petition under Evidence Code section 1563, subdivision
(b)(4), to reduce Dr. Press’s witness costs.
We do not reach Malinowski’s challenge to the denial of her motion to
compel compliance with the deposition subpoena, as that ruling does not
qualify as an appealable order. As for the sanctions and costs orders, which
1
are appealable, we reject Malinowski’s contentions that the court’s orders
were erroneous and contradictory. We therefore dismiss the portion of the
appeal related to the order denying Malinowski’s motion to compel
compliance, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2018, Malinowski filed for dissolution of her marriage to Justin
Martin and sought a domestic violence restraining order against him. In
2020, the trial court ordered that a child custody evaluation be performed by
Dr. Press with regard to the parties’ two children.
The following events all occurred in 2022, unless otherwise specified.
In February, Dr. Press served her child custody evaluation report on the
parties.
On July 11, Malinowski’s then counsel, Gary Dubcoff, served Dr. Press
with a deposition subpoena for production of business records. The subpoena
sought records relating to Dr. Press’s education and qualifications and her
work on the child custody evaluation report, with a production date of August
8, 2022.
After Dubcoff and Dr. Press exchanged initial email correspondence
regarding electronic service of the deposition subpoena, Martin’s counsel,
Yvonne Seeley (who was copied on these emails) wrote to Dr. Press stating
that an “Anka order”1 was not yet in place and suggesting that one be
obtained before Dr. Press released her file.
1 Seeley’s mention of an “Anka order” was an apparent reference to the
need for a court order maintaining the confidentiality of the child custody
evaluation report. (See In re Marriage of Anka v. Yeager (2019) 31
Cal.App.5th 1115 [affirming award of sanctions against attorney for
disclosing information from confidential child custody evaluation report
during deposition in different martial dissolution case].)
2
On August 3, attorney Dayna Olson wrote to Dubcoff and Seeley
notifying them of her recent retention by Dr. Press. Olson stated “our
understanding that Mr. Martin’s attorney, Ms. Seeley, has objected to the
production of these records absent an Anka order from the San Mateo Family
Court. Therefore, at this time Dr. Press will refrain from producing any
records in response to the subpoena until the Anka order is obtained.”
On August 19, Dubcoff emailed Olson accusing Dr. Press of
“purposefully disobeying the subpoena” and arguing he was entitled to the
subpoenaed records as the attorney of a party to the proceedings. In
response, Olson explained it was previously unclear whether Martin’s counsel
intended to file (or had already filed) a motion challenging the deposition
subpoena due to the absence of an Anka order. After noting that no Anka
order appeared to have been filed and that no motion to quash had been
served, Olson stated “Dr. Press will produce the custody evaluation . . . upon
receipt of her reasonable fees and costs under [Health and Safety] Code
section 123110(j) and Evidence Code section 1563(b).” Olson further stated
that Dr. Press was making a good faith inquiry into locating and producing
the additional documents demanded in the deposition subpoena, including
her curriculum vitae and various emails and correspondence.
On September 6, Olson forwarded an invoice in the amount of
$1,200.00 to Dubcoff and Seeley for Dr. Press’s fees and costs related to the
deposition subpoena.2 Olson explained that “[i]n accordance with Health and
Safety Code section 123110, Dr. Press charges her reasonable hourly fee in
order to compile and [sic] the medical records.” Olson asked each side to
2 According to the invoice, Dr. Press expended two hours in record
preparation and one hour supervising the copied records, at an hourly rate of
$400.
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remit payment of $600.00 “so that we may submit the records to you in
response to the subpoena.” Olson further informed the parties’ counsel that a
third-party service was retained to assist Dr. Press, and that a separate
invoice for its fees would follow.
Without responding to Dr. Press’s invoice or otherwise communicating
with Olson, Malinowski filed two motions in the trial court. First, on
September 12, Malinowski filed a request for an order to show cause
regarding “bad-faith excessive costs” charged by Dr. Press in violation of
Evidence Code section 1563, subdivision (b)(1) and (4). In her supporting
brief, Malinowski argued that Dr. Press’s “extortionate demand” for
$1,200.00 in fees was not authorized under Evidence Code section 1563 and
was demanded in bad faith. Malinowski sought an order excusing her from
paying Dr. Press any costs in excess of those mandated by statute, and an
order requiring Dr. Press to pay Malinowski $2,500.00 for her expenses in
obtaining the order.
Subsequently, on September 14, Malinowski filed a motion to compel
Dr. Press’s compliance with the deposition subpoena and for an award of
monetary sanctions against Dr. Press. Malinowski’s supporting brief accused
Dr. Press of objecting to the deposition subpoena on the “utterly frivolous”
ground that Martin had objected to the absence of an Anka order.
Malinowski further argued that Dr. Press improperly conditioned her
compliance on the payment of fees under Health and Safety Code section
123110, a statute that “has nothing whatsoever to do with” the deposition
subpoena because neither Malinowski nor the children were “patients” of Dr.
Press within the meaning of Health and Safety Code section 123105,
subdivision (c).
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Olson wrote to Dubcoff asserting he had failed to meet and confer in
good faith prior to filing Malinowski’s two motions. However, in an effort to
avoid unnecessary law and motion practice, Olson stated that “Dr. Press is
willing to compromise on this issue and requests only that you reimburse her
for the copy-service fee of $367.75 (or $183.88 per party) in exchange for the
immediate withdrawal of the Motion to Compel, the Order to Show Cause,
and the associated requests for sanctions.” Attached to Olson’s letter was an
invoice from Trinity eDiscovery (Trinity) for $367.75, itemized as follows: an
“Onsite set-up Fee” of $75.00; “Onsite scanning BW” at a rate of $0.25 per
page for 871 pages, for a total of $217.75; and a labor charge of $75, based on
an hourly rate of $25 for 3 hours.
Olson made several attempts to follow up on her compromise offer, but
Dubcoff made no attempt to negotiate and simply informed Olson of his
refusal to accept the offer. Thereafter Dr. Press filed a consolidated
opposition to the two motions and sought sanctions against Malinowski for
her failure to meet and confer prior to filing her motion to compel. (See Code
of Civ. Proc., § 2025.480, subds. (b), (j).)
The trial court heard argument on the matter in December and
announced its decision from the bench as follows: “In regards to the motion
to compel, that was filed on September 14, 2022, [t]he Court at this time
denies [Malinowski’s] motion to compel business records. [¶] The Court finds
that [Malinowski] did fail to meet and confer in good faith regarding the
excessive fee issue. [¶] [Malinowski] is ordered to pay Dr. Press $1,345.50 in
sanctions for the failure to meet and confer. [¶] In regards to the [order to
show cause] that was filed September 12, 2022, at this time the motion is
granted in part. [Malinowski] is ordered to pay the copy service fee in the
amount of $234.10 pursuant to Evidence Code section 1563, Subsection B1
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within 10 days of this order so that Dr. Press may then release the records.”
In January 2023, the trial court issued a written order reflecting these
rulings.
This appeal followed.
DISCUSSION
A. Appealability
We first address Dr. Press’s argument that the appeal should be
dismissed because the trial court’s discovery and sanctions order is not
appealable.
“Unless an order is expressly made appealable by a statute, this court
has no jurisdiction to consider it.” (Levinson Arshonsky & Kurtz LLP v. Kim
(2019) 35 Cal.App.5th 896, 903.) “Consequently, it is the duty of the court to
dismiss an appeal from an order that is not appealable.” (Doe v. United
States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432–1433 (Doe).)
Here, Malinowski’s appeal from interlocutory discovery rulings and the
imposition of $1,345.50 in monetary sanctions and $234.10 in nonparty
witness costs is not expressly authorized by statute. “[G]enerally discovery
rulings are not directly appealable and are subject to review only after entry
of a final judgment.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1060.) An
appeal may be taken from an order directing payment of monetary sanctions,
but only if the amount exceeds $5,000. (Code Civ. Proc., § 904.1,
subd. (a)(12).)
Malinowski nevertheless contends the trial court’s order is appealable
under the collateral order doctrine because it is a final judgment on collateral
matters that finally resolve all issues between her and Dr. Press. We agree
in part.
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The one-final-judgment rule frowns upon piecemeal appellate
adjudication. (Guntert v. City of Stockton (1974) 43 Cal.App.3d 203, 208.)
However, “ ‘[w]hen a court renders an interlocutory order collateral to the
main issue, dispositive of the rights of the parties in relation to the collateral
matter, and directing payment of money or performance of an act, direct
appeal may be taken. [Citations.] This constitutes a necessary exception to
the one final judgment rule. Such a determination is substantially the same
as a final judgment in an independent proceeding.’ ” (Sanchez v. Westlake
Services, LLC (2022) 73 Cal.App.5th 1100, 1107 (Sanchez).) “ ‘To qualify as
appealable under the collateral order doctrine, the interlocutory order must
(1) be a final determination (2) of a collateral matter (3) and direct the
payment of money or performance of an act.’ ” (Id. at pp. 1107–1108.) A
collateral matter is one that is “ ‘distinct and severable . . . from the general
subject of the litigation.’ ” (Dr. V. Productions, Inc. v. Rey (2021) 68
Cal.App.5th 793, 797 (Dr. V.).)
Despite the trial court’s having issued a single written order, the
question of appealability may be directed to each of the court’s separate
rulings. (See, e.g., Deck v. Developers Investment Co., Inc. (2023) 89
Cal.App.5th 808, 829 (Deck) [dismissing portion of appeal regarding issue
sanctions but considering portion regarding monetary sanctions].) On this
score, the court’s orders directing Malinowski to pay Dr. Press $1,345.50 in
monetary sanctions and $234.10 in reduced copy-service costs meet the
elements of the collateral order doctrine. That is, they are final
determinations directing the payment of money and are distinct and
severable from the general subject of this litigation. (See Sanchez, supra, 73
Cal.App.5th at pp. 1107–1108.) And though Dr. Press argues that her
involvement in this litigation as the court-appointed child custody expert is
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not yet finished, the court’s rulings directing these particular payments are
nonetheless final and dispositive of the rights of those involved in the
collateral matter. Accordingly, the orders directing Malinowski to pay
$1,345.50 in sanctions and $234.10 in nonparty witness costs to Dr. Press are
appealable under the collateral order doctrine.
We reach a different conclusion for the trial court’s order denying
Malinowski’s motion to compel. The modern formulation of the collateral
order doctrine “makes no mention of an order denying the payment of money
or refusing to require performance of an act.” (Dr. V., supra, 68 Cal.App.5th
at p. 797.) If an interlocutory order is merely “ ‘prohibitive’ in effect (e.g.
merely prevents the payment of money or performance of an act), the weight
of authority holds that it is not directly appealable and the right of appeal
must await a final judgment.” (Id. at pp. 797–798.) Here, the trial court
merely refused to require Dr. Press’s compliance with the deposition
subpoena. Accordingly, that portion of the court’s order is not directly
appealable under the collateral order doctrine, and we will dismiss the
portion of Malinowski’s appeal challenging it. (See Deck, supra, 89
Cal.App.5th at p. 829; Doe, supra, 200 Cal.App.4th at pp. 1432–1433.)3
3 Partial dismissal of the appeal is viable and nonproblematic here
because the issues raised in Malinowski’s appeal from the monetary
sanctions order are not “so interwoven with” or “embraced” in the
nonappealable portion as to preclude independent examination. (Deck,
supra, 89 Cal.App.5th at pp. 828–829.)
On May 2, 2023, we denied Malinowski’s prior petition for a writ of
mandate in connection with the same order challenged here, and we now
reject Malinowski’s current request to exercise our discretion to treat the
appeal as a petition for an extraordinary writ. This case does not present a
situation in which “justice cries out for immediate appellate review” due to
harm that may be caused by review after a final judgment. (Art Movers, Inc.
v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 651.) We are unpersuaded by
Malinowski’s claim that she will be denied critical discovery about the child
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B. Monetary Sanctions for Failure to Meet and Confer
Malinowski contends the trial court erred in imposing monetary
sanctions for her failure to meet and confer because Evidence Code section
1563 does not require a party seeking reduction of witness costs to meet and
confer with the witness before filing a petition with the court. We reject this
claim of error, as the record shows that the trial court awarded monetary
sanctions pursuant to Code of Civil Procedure section 2025.480, subdivision
(b), not Evidence Code section 1563.
Under Code of Civil Procedure section 2025.480, if a nonparty deponent
fails to answer any question or produce any document specified in a
deposition subpoena, the subpoenaing party may move for an order
compelling that answer or production. (Code Civ. Proc., § 2025.480,
subd. (b).) The motion “shall be accompanied by a meet and confer
declaration under [Code of Civil Procedure] Section 2016.040” (Code Civ.
Proc., § 2025.480, subd. (b)), and a moving party’s failure to satisfy this
requirement exposes it to monetary sanctions (Code Civ. Proc., § 2023.020).
Under Evidence Code section 1563, subdivision (b), a nonparty
deponent may recover “[a]ll reasonable costs incurred” with respect to the
production of business records under a deposition subpoena from the
subpoenaing party; however, the subpoenaing party may petition the court
for an order to show cause reducing all or part of the costs charged. (Evid.
Code, § 1563, subd. (b)(4).) Evidence Code section 1563 contains no
requirement that the subpoenaing party meet and confer with the witness
prior to bringing a petition to reduce costs.
custody evaluation, as the record reflects Dr. Press’s agreement to produce
responsive documents, as well as a waiver of her claim to fees under Health
and Safety Code section 123110, subdivision (j).
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Malinowski’s claim of error assumes (wrongly) that the trial court
awarded monetary sanctions in connection with her petition under Evidence
Code section 1563. However, on the record before us, it is reasonably clear
the trial court sanctioned Malinowski for failing to meet and confer in
connection with her motion under Code of Civil Procedure section 2025.480.
In ruling from the bench, the court stated that “[i]n regards to the motion to
compel, that was filed on September 14, 2022,” the motion was denied
because Malinowski failed to meet and confer in good faith. (Italics added.)
Then, in its written order after hearing, the court ordered Malinowski to pay
sanctions for her failure to meet and confer in good faith “prior to filing her
[request for an order] compelling [Dr. Press’s] compliance with [Malinowski’s]
subpoena.” (Italics added.) No error appears.
In resisting this conclusion, Malinowski relies on the trial court’s oral
finding of a failure to “meet and confer in good faith regarding the excessive
fee issue” (italics added), an issue that Malinowski claims was raised only in
her petition under Evidence Code section 1563. We disagree that the court’s
reference to “the excessive fee issue” compels the conclusion that the court
acted pursuant to Evidence Code section 1563.
Significantly, Malinowski’s motion under Code of Civil Procedure
section 2025.480 specifically argued that Dr. Press could not validly charge
fees of $400 per hour pursuant to Health and Safety Code section 123110,
subdivision (j), because Malinowski and the children were not Dr. Press’s
“patients” within the meaning of Health and Safety Code section 123105,
subdivision (c). As this was a challenge to the legal basis for the $1,200 fee
initially quoted by Dr. Press, the court’s finding that Malinowski failed to
meet and confer “regarding the excessive fee issue” is reasonably construed,
along with the court’s oral and written remarks, as supporting the imposition
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of sanctions in connection with the motion under Code of Civil Procedure
section 2025.480, subdivision (b).4
C. Evidence Code Section 1563
Malinowski next contends the trial court’s partial reduction of Dr.
Press’s costs from $367.75 to $234.10 still exceeded the authorized limits of
Evidence Code section 1563, because nothing in the statute authorizes
compensation for Trinity’s $75.00 onsite set-up fee. We are not persuaded.
Under Evidence Code section 1563, subdivision (b)(4), upon the filing of
a petition by a subpoenaing party, the trial court shall issue an order to show
cause and may hear testimony to determine whether the costs demanded by a
nonparty deponent exceed the amount authorized by statute. As used in this
provision, the term “reasonable costs” includes, “but is not limited to,” the
following: $0.10 per page for copies of documents 8½ by 14 inches or less;
$0.20 per page for copies of documents from microfilm; actual costs for copies
of oversized documents or those requiring special processing; reasonable
clerical costs incurred in locating and making the records available “to be
billed at the maximum rate of” $24 per hour per person, computed on the
basis of $6 per quarter hour or fraction thereof; actual postage charges; and
4 Malinowski makes only conclusory remarks that her counsel
adequately met and conferred regarding the excessive fees issue. In the
absence of cogent argument, analysis, and supporting citations to the record,
we treat the issue as forfeited. (In re Marriage of Carlisle (2021) 60
Cal.App.5th 244, 255.) In any event, the record establishes that Malinowski
did not attempt to meet and confer on Dr. Press’s demand for $1,200 in fees.
As recounted above, Olson sent the invoice on September 6, 2022, and
attorney Dubcoff offered no response before filing the motion to compel on
September 14, 2022.
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the actual cost, if any, charged to the witness by a third person for the
retrieval and return of records held offsite. (Evid. Code, § 1563, subd. (b)(1).)5
“If the court finds the costs were excessive and charged in bad faith by
the witness, the court shall . . . excuse the requesting party from any
payment of costs charged but not collected, and the court shall also order the
witness to pay the requesting party the amount of the reasonable expenses
incurred in obtaining the order, including attorney’s fees. If the court finds
the costs were not excessive, the court shall order the requesting party to pay
the witness the amount of the reasonable expenses incurred in defending the
petition, including attorney’s fees.” (Evid. Code, § 1563, subd. (b)(4).)
We review the award of costs for abuse of discretion. (Finney v. Gomez
(2003) 111 Cal.App.4th 527.)
Admittedly, it is not clear from the record what Trinity’s $75.00 onsite
set-up fee precisely entailed. However, under well-established rules of
appellate procedure, it was Malinowski’s burden to affirmatively show error
on an adequate record (In re Marriage of Deal (2020) 45 Cal.App.5th 613,
622), and she points us to nothing in the record supporting the conclusion
that the $75.00 fee was not reasonably incurred by Dr. Press. More
importantly, Malinowski’s specific contention of legal error—that the $75.00
onsite set-up fee was not expressly permitted by statute—rests on an
erroneous presumption that Evidence Code section 1563, subdivision (b), sets
forth an exclusive list of allowable costs. She is mistaken, as the statute
5 In reducing Dr. Press’s costs from $367.75 (as invoiced by Trinity) to
$234.10—a total reduction of $133.65—it appears the trial court made two
adjustments pursuant to Evidence Code section 1563, subdivision (b)(1).
First, the court reduced the per page copy rate from $0.25 to $0.10, resulting
in an overall reduction of $130.65. Second, the court reduced the hourly labor
charge of $25 to the statutorily “maximum rate” of $24 (Evid. Code, § 1563,
subd. (b)(1)), resulting in a reduction of $3.
12
expressly provides that its definition of reasonable costs “includes, but is not
limited to,” the types of costs and amounts enumerated therein. (Evid. Code,
§ 1563, subd. (b)(1).) As such, the trial court had discretion under Evidence
Code section 1563, subdivision (b)(1), to determine whether the $75.00 onsite
set-up fee was a reasonable cost incurred by Dr. Press, and Malinowski has
failed to provide an adequate record affirmatively showing that the court
abused its discretion in this regard.
In re Marriage of Stephens (1984) 156 Cal.App.3d 909 does not assist
Malinowski. In Stephens, the court held that a $40 charge for a three-page
computer printout of an employee’s wages and deductions was not allowable
under Evidence Code section 1563, subdivision (b)(1), because the computer
cost did not expressly fall within any of the categories mentioned therein.
(Id. at pp. 912–913.) Critically, however, Stephens interpreted a prior version
of Evidence Code section 1563 that did not feature the phrase “includes, but
is not limited to” in its definition of reasonable costs. (See Stephens, at p. 912
[quoting Evidence Code section 1563, subdivision (b)(1), as follows:
“ ‘ “Reasonable costs,” as used in this section, shall mean ten cents ($.10) per
page for standard reproduction . . . .’ ”].) The Legislature subsequently
amended the statute in 1986 and 2016 to expressly provide that reasonable
costs were not limited to those listed in the statute. (Stats. 1986, ch. 603, § 8,
p. 2077; see Stats. 2016, ch. 85, § 3.) Because Stephens’s holding on this point
has been superseded by statutory amendment, the decision provides no
support for Malinowski’s contention that the $75.00 onsite set-up fee was not
allowed under Evidence Code section 1563, subdivision (b)(1).
D. Alleged Contradictory Orders
Finally, Malinowski contends the trial court issued contradictory orders
by denying the motion to compel compliance with the deposition subpoena
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while at the same time ordering Malinowski to pay a reduced amount of Dr.
Press’s copy-service costs to obtain records from her. In Malinowski’s words,
she “cannot be not entitled to the records and yet somehow be entitled to the
records at the same time.” We are again unconvinced.
As set forth above, the trial court denied Malinowski’s motion to compel
compliance on procedural grounds for her failure to meet and confer. (Code
Civ. Proc., § 2025.480, subd. (b).) At the same time, the court granted
Malinowski’s request to reduce Dr. Press’s fees based on the facts presented
in the parties’ papers—namely, that Dr. Press had agreed to produce
documents responsive to the deposition subpoena and had, in fact, incurred
costs to do so through e-discovery vendor Trinity. In short, it was not
inconsistent for the trial court to, on the one hand, reject Malinowski’s motion
under Code of Civil Procedure section 2025.480 as procedurally
noncompliant, but on the other hand, in light of Dr. Press’s agreement to
produce records and her actual incurrence of costs to that end, adjust the
amount of costs Malinowski would have to pay to conform to Evidence Code
section 1563, subdivision (b)(1).
In closing, it is worth emphasizing, notwithstanding Malinowski’s
unfounded assertions to the contrary, that the trial court’s rulings do not
have the effect of blocking her from obtaining the business records she seeks
or of giving Dr. Press permission to unilaterally withhold records responsive
to the deposition subpoena. The court expressly acknowledged in its written
order that the $234.10 payment was “for [Dr. Press’s] subpoena compliance.”
Additionally, Dr. Press acknowledges in her appellate briefing that she has
agreed to produce responsive documents, and that Malinowski may continue
to seek updated records from Dr. Press during the ongoing family court
proceedings.
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DISPOSITION
The appeal from the trial court’s order denying Malinowski’s motion
under Code of Civil Procedure section 2025.480 to compel Dr. Press’s
compliance with the deposition subpoena for production of business records is
dismissed. The court’s orders sanctioning Malinowski $1,345.50 for failing to
meet and confer and directing Malinowski to pay reduced nonparty witness
costs in the amount of $234.10 are affirmed. Dr. Press is entitled to her costs
on appeal.
_________________________
Fujisaki, Acting P.J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Rodríguez, J.
Malinowski v. Martin (A167482)
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