Hartman v. Hartman CA1/4 ( 2024 )

Filed 5/21/24 Hartman v. Hartman CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
ELENA HARTMAN,
Plaintiff,
v.
MICHAEL HARTMAN, A168024
Defendant and Respondent;
(San Mateo County
Super. Ct. No. 19FAM02147)
ANDREI MELNICHENKO,
Appellant.
Andrei Melnichenko appeals an order imposing $12,866 in sanctions
payable to Michael Hartman for failing to respond to a subpoena for
documents in the underlying divorce proceedings involving Hartman and
Melnichenko’s sister, Elena Hartman. His primary contention on appeal is
that there is no evidence to support the court’s finding that he was properly
served with the subpoena and that therefore, the court abused its discretion
by imposing sanctions because his failure to comply was justified given the
lack of service. He also asserts that the subpoena itself was invalid and that
the amount of the sanctions is excessive. Because Michael Hartman has not
appeared in these appellate proceedings, we decide the appeal on the opening
brief and the record, bearing in mind that Melnichenko retains the
affirmative burden to show error, which he has not done. (Smith v. Smith
(2012) 208 Cal.App.4th 1074, 1078; Cal. Rules of Court,1 rule 8.220(a)(2).)
Accordingly, we affirm the sanctions order.
BACKGROUND
On September 8, 2022, Hartman filed a motion to compel
Melnichenko’s compliance with a deposition subpoena for production of
business records (subpoena) and for sanctions. A declaration attached to the
motion states that the subpoena was served on Melnichenko twice, first at
Melnichenko’s request by email on March 14, 2022, and the second time by
personal service on July 10.
On January 20, 2023, Melnichenko filed a declaration in opposition to
the motion to compel asserting that he had not been served with the
subpoena prior to December 26, 2022, when it was served along with the
motion to compel.
Following a hearing on January 31, 2023, the trial court granted the
motion to compel and ordered Melnichenko to pay Hartman’s attorney fees
and costs as sanctions based on Melnichenko’s willful failure to comply with
the subpoena. A written order was entered and served on April 14, 2023,
after which Melnichenko timely filed a notice of appeal.
DISCUSSION
The trial court ordered Melnichenko to pay $12,866.70 in sanctions
pursuant to Code of Civil Procedure2 sections 2025.480, subdivision (j) and
2023.030, subdivision (a). Section 2025.480, subdivision (j), provides that a
trial court shall impose monetary sanctions “against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel an answer
1 All rule references are to the California Rules of Court.
2 All statutory references are to the Code of Civil Procedure unless
otherwise noted.
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or production, 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.” Similarly, section 2023.030, subdivision (a), provides
that a trial court shall order that “one engaging in the misuse of the discovery
process . . . pay the reasonable expenses, including attorney’s fees, incurred
by anyone as a result of that conduct . . . 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.” At the hearing on
January 31, the trial court found that “there is credible evidence that
Mr. Melnichenko was properly served with a lawful subpoena for records . . .
and that he willfully failed to comply with a subpoena for production of
records without good cause, that such failure in the response caused the
respondent to incur additional attorney’s fees and costs, and that Respondent
made reasonable and good faith efforts to resolve these issues
informally . . . .”
Melnichenko contends there is no substantial evidence in the record to
support the trial court’s finding that he was served with the subpoena. We
review the trial court’s factual findings for substantial evidence. (Stafford v.
Mach (1998) 64 Cal.App.4th 1174, 1182.) Substantial evidence is evidence
“ ‘of ponderable legal significance, . . . reasonable in nature, credible, and of
solid value.’ ” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873, italics
omitted.) If there is substantial evidence to support the trial court’s finding,
the order will not be disturbed even if there is also evidence supporting a
contrary finding. (Id. at pp. 873–874.) Filing a proof of service that shows on
its face compliance with the statutory requirements creates a rebuttable
presumption of proper service. (Evid. Code, § 647; Yolo County Dept. of Child
Support Services v. Myers (2016) 248 Cal.App.4th 42, 47, fn. 2.)
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Here, the proof of service attached as an exhibit to the motion to compel
indicates that Melnichenko was personally served with the subpoena on
July 10, 2022. In addition, the process server’s declaration, which was also
attached to the motion to compel, confirms personal service.3 The declaration
explains that the process server identified Melnichenko “with the help of
pictures and a physical witness pointing him out” and from approximately
one foot away, served the documents and “notified him of the nature of the
documents.” The declaration also states that he spoke with Melnichenko by
phone on August 31, 2023, and while Melnichenko initially denied having
been served, he later admitted that he left the “white piece of paper” he had
been handed at the service location.
On appeal, Melnichenko contends this evidence is inadequate because
the process server failed to confirm his identity with him at the time of
service and because Melnichenko is several inches taller and 50 pounds
heavier than the person described on the proof of service.4 He asserts that
the process server “served the wrong person.” Initially, we note that none of
Melnichenko’s arguments on appeal challenge the statement in the process
server’s declaration that during their conversation on August 31,
3 The process server’s declaration, although designated by
Melnichenko, was not included in the record. Rather than correcting the
record (Cal. Rules of Court, rule 8.155), Melnichenko attached an unfiled copy
of the declaration as an exhibit to his opening brief. While his failure to
correct the record might have resulted in the issue being waived, in the
interests of justice we consider the declaration, to which both parties referred
in the trial court, and resolve the matter on the merits. (See McLaughlin v.
Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 299, fn. 6 [noting that
appellant’s failure to correct clerk’s transcript may result in issue being
deemed waived but issue would be considered on the merits where omitted
order was attached as an exhibit to appellate brief].)
4 The proof of service describes the person served as “White, Male,
45 Years Old, Brown Hair, 5 Feet, 9 Inches, 175 Pounds.”
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Melnichenko acknowledged that he was handed a piece of paper by someone
at the park on July 10. Based on this admission, we could find that the trial
court reasonably rejected Melnichenko’s claim that he was not served.
Nonetheless, we briefly consider the arguments Melnichenko has raised on
appeal.
Melnichenko has not cited any authority supporting his claim that the
process server was required to verbally confirm his identity to effect personal
service. Under section 684.220, subdivision (b), proof of personal service
“may be made by affidavit of the person making the service showing the time,
place, and manner of service and the facts showing that the service was made
in accordance with the applicable statutory provisions. The affidavit shall
recite or in other manner show the name of the person to whom the papers
served were delivered and, if appropriate, the title of the person or the
capacity in which the person was served.” The proof of service complies with
these requirements and the process server’s declaration further indicates
that the process server identified Melnichenko based on his appearance and
confirmed his identity with a witness who was with Melnichenko at the park.
That is sufficient. While Melnichenko asserted in his declaration opposing
the motion to compel that the physical description in the proof of service is
inconsistent with his actual weight and height, the alleged difference is not
so significant as to establish that the process server necessarily served the
wrong person. (Cf. American Express Centurion Bank v. Zara (2011)
199 Cal.App.4th 383, 388, 390 [presumption under proof of service rebutted
by evidence that description of person served in affidavit (Asian male with
black hair) did not fit defendant (not Asian with light brown or gray hair)].)
In any event, given his admission when he spoke to the process server on
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August 31, the record amply supports the finding that Melnichenko was the
man served on July 10.
Melnichenko also argues that there is no evidence that he was the
custodian of records for the documents sought and that any purported service
on July 10 was inadequate because the process server did not tender witness
fees under section 2020.230, subdivision (b). These arguments were not
raised in the trial court. Having received a subpoena that did not comply
with section 2020.230, subdivision (b), Melnichenko could have made a
motion to quash the subpoena under section 1987.1, or alternatively he could
have refused to comply and presented his excuse in opposition to the motion
to compel. (See Board of Registered Nursing v. Superior Court (2021)
59 Cal.App.5th 1011, 1033 [“Upon receipt of the subpoena, a nonparty must
make the production on the date and in the manner specified, unless grounds
exist to object or disregard the subpoena”].) He did neither. Accordingly, he
has forfeited these arguments on appeal. (Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550,
564 [“ ‘ “ ‘[I]t is fundamental that a reviewing court will ordinarily not
consider claims made for the first time on appeal which could have been but
were not presented to the trial court’ ” ’ ”]; Newton v. Clemons (2003)
110 Cal.App.4th 1, 11 [reviewing court will “ ‘ignore arguments . . . not
presented and litigated in the trial court’ ”].)5
5 Because Melnichenko does not acknowledge that these arguments are
being presented for the first time on appeal, he does not contend that grounds
exist for consideration of his arguments by this court in the first instance.
Accordingly, any such argument also has been forfeited. (See Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 56 [court will not consider contention
not raised in opening brief].) At oral argument, counsel reiterated his
contention that service of the subpoena was invalid because there is no
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Accordingly, substantial evidence supports the trial court’s finding that
Melnichenko was properly served with the subpoena on July 10. Insofar as
Melnichenko offered no explanation for his failure to comply with the
subpoena in a timely manner other than the rejected claim that he had not
been served, the trial court reasonably concluded that he failed to comply
with the subpoena without good cause.
Melnichenko’s remaining arguments challenging the sanction order
fare no better. First, he argues summarily that the order must be reversed
because the motion was not supported “by reference to statute or authority.”
Again, however, Melnichenko forfeited the argument by failing to assert it in
the trial court. Melnichenko also argues that the award must be reversed
because the trial court “indiscriminately awarded Respondent 100% of his
asserted costs without a full and fair discussion of the propriety of doing so.”
Melnichenko concedes that Hartman “cataloged his expenses” in connection
with his motion, but faults him for failing to discuss “less expensive
alternatives or the necessity of the actions taken.” At the hearing,
Melnichenko’s counsel argued that Hartman paid for “16 and 18 hours of
evidence that Melnichenko was the custodian of records for the documents
sought, but he again failed to demonstrate that this objection had been made
in the trial court at the time of the ruling. Melnichenko first contended that
he was not the custodian of records in a declaration filed on May 30, 2023, in
response to a further motion to compel and after the court had issued the
sanctions order that is the subject of this appeal. Moreover, his claim in that
declaration was simply that he was not the custodian of records created by
Venmo or his sister’s bank for the purpose of providing an affidavit under
Evidence Code section 1561. Finally, contrary to counsel’s contention at oral
argument that the proof of service failed to indicate that the subpoena had
been served on Melnichenko in his capacity as the custodian of records, it in
fact identified the party served as “Andrei Melnichenko/Custodian of
Records.”
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private investigation” to locate Melnichenko when he could have sent a
special interrogatory to Ms. Hartman asking her where Melnichenko lived.
Hartman’s counsel rejected the suggestion that the fees requested were
excessive or unreasonable. He explained that he discussed his inability to
serve the motion to compel on Melnichenko with Elena Hartman at a status
conference but that he was not provided with an updated address for her
brother so that hiring an investigator was reasonable and necessary. On this
record, we cannot conclude that the court abused its discretion in setting the
amount of sanctions.
DISPOSITION
The order awarding sanctions is affirmed.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
HITE, J. *
* Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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