Khalsa v. Puri ( 2022 )

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme
Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral
citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally
published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: October 24, 2022
4 No. A-1-CA-39074
5 SOPURKH KAUR KHALSA, SHAKTI
6 PARWHA KAUR KHALSA, and EK
7 ONG KAR KAUR KHALSA, Trustees
8 of the YOGI BHAJAN ADMINISTRATIVE
9 TRUST,
10 Plaintiffs-Appellees,
11 v.
12 INDERJIT KAUR PURI,
13 Defendant-Appellant.
14 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
15 Raymond Z. Ortiz, District Judge
16 Sanders & Westbrook, PC
17 Maureen A. Sanders
18 Albuquerque, NM
19 for Appellees
20 The Soni Law Firm
21 Surjit P. Soni
22 Pasadena, CA
1 The Bowles Law Firm
2 Jason Bowles
3 Albuquerque, NM
4 for Appellant
1 OPINION
2 BOGARDUS, Judge.
3 {1} Inderjit Kaur Puri (Bibiji) appeals the district court’s order granting the
4 Trustees of the Yogi Bhajan Administrative Trust’s (the Trustees) motion for
5 sanctions based on Bibiji’s failure to comply with a court order to produce
6 documents in aid of execution of an attorney fees judgment. Bibiji argues (1) the
7 Trustees improperly served a subpoena, rendering the subpoena invalid; (2) the
8 district court lacked authority to order discovery in aid of enforcement of a judgment
9 in light of the Trustees’ failure to issue or properly serve a document request
10 pursuant to Rule 1-034 NMRA; (3) the district court erred by ordering Bibiji to
11 produce privileged documents; and (4) the district court’s sanctions award
12 constituted an abuse of discretion and violated due process. We affirm.
13 BACKGROUND
14 {2} This appeal arises from the Trustees’ attempt to collect attorney fees after a
15 judgment for $718,720.63 in fees was entered in their favor in 2014. It is Bibiji’s
16 fifth appeal to this Court in the course of this litigation, which is now more than
17 fourteen years old. The Trustees sued Bibiji seeking a declaratory judgment that
18 Bibiji was not entitled to any distributions from the trust. The district court dismissed
19 the Trustees’ complaint, but the case proceeded to trial on Bibiji’s counterclaims.
20 The Trustees prevailed, and the district court ordered Bibiji to pay the Trustees’
1 attorney fees and costs. This Court affirmed. See Khalsa v. Puri, 2015-NMCA-027,
2 ¶¶ 1, 74-75, 344 P.3d 1036. Bibiji filed an appeal specific to the award of attorney
3 fees, and this Court affirmed that award in a separate opinion. See Khalsa v. Puri,
4 No. 33,622, mem. op. ¶¶ 11-12 (N.M. Ct. App. Apr. 14, 2015) (nonprecedential).
5 Although the Trustees garnished an arbitration award in 2017 to partially satisfy the
6 attorney fees judgment, and the priority of the garnishment was affirmed on appeal,
7 see Khalsa v. Puri, A-1-CA-36701, mem. op. ¶¶ 1, 18-19 (N.M. Ct. App. Feb. 2,
8 2021) (nonprecedential), Bibiji has yet to pay the Trustees any of the attorney fees
9 judgment that remains. In its 2017 order denying Bibiji’s motion to stay enforcement
10 of the Trustees’ priority garnishment, the district court noted that Bibiji’s debt under
11 the attorney fees judgment, with interest, exceeded $1 million.
12 {3} Further discussion of facts necessary for our analysis will be discussed below.
13 DISCUSSION
14 I. The District Court Did Not Err in Entering the Discovery Order
15 {4} Seeking information about Bibiji’s financial ability to pay the attorney fees
16 judgment, in March 2015 the Trustees filed a request for a Rule 1-069(A) NMRA
17 debtor’s examination of Bibiji, to which they attached a copy of the subpoena and a
18 list of documents Bibiji was directed to bring to the examination. The Trustees
19 requested a setting, and the subpoena was issued. The Trustees then filed a notice of
20 Rule 1-069 debtor’s examination duces tecum that included the same list of
2
1 requested documents, which was served on Bibiji’s attorney of record through
2 Odyssey on May 20, 2015. That same day the Trustees’ process server delivered the
3 subpoena for a Rule 1-069(A) debtor’s examination duces tecum to Bibiji’s attorney
4 of record. Attached to the subpoena was the list of requested documents. Bibiji
5 moved to quash the subpoena and vacate the Rule 1-069 hearing, and for a protective
6 order. In June 2015 the district court held a hearing on the motion and issued an
7 order (the discovery order) concluding that service of the subpoena through Bibiji’s
8 attorney of record was effective pursuant to Rule 1-089(D) NMRA and directing
9 Bibiji to produce certain documents requested by the Trustees.
10 {5} Bibiji argues that a subpoena issued pursuant to Rule 1-069(A) must be
11 personally served and that she was not properly served because the Trustees served
12 the subpoena on her attorney. Bibiji thus contends the service was ineffective. As a
13 result, Bibiji argues, the district court lacked authority to enter the discovery order,
14 pointing to the Trustees’ failure to otherwise issue or properly serve a Rule 1-034
15 document request. We disagree.
16 {6} Bibiji’s argument requires us to interpret the rules of civil procedure, a matter
17 we review de novo. Becenti v. Becenti, 2004-NMCA-091, ¶ 6, 136 N.M. 124, 94
18 P.3d 867. “[W]e apply the same canons of interpretation [to our rules of civil
19 procedures] that we use when interpreting statutes.” Deutsche Bank Nat’l Tr. Co. v.
20 Valerio, 2021-NMCA-035, ¶ 16, 493 P.3d 493. Thus, “[w]e approach the
3
1 interpretation of rules . . . by seeking to determine the underlying intent.” State v.
2 Miller, 2008-NMCA-048, ¶ 11, 143 N.M. 777, 182 P.3d 158; see also Grisham v.
3 Romero, 2021-NMSC-009, ¶ 23, 483 P.3d 545 (“In construing the language of a
4 [rule], our goal and guiding principle is to give effect to the intent of the [drafters].”).
5 “The primary indicator of . . . intent is the plain language of the [rule].” Lion’s Gate
6 Water v. D’Antonio, 2009-NMSC-057, ¶ 23, 147 N.M. 523, 226 P.3d 622. And yet,
7 “courts must exercise caution in applying the plain meaning rule.” State ex rel.
8 Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352. In
9 interpreting the language of a rule, we consider the thought behind the language and
10 not merely the specific words chosen. See State v. Thompson, ___-NMSC-___, ¶ 17,
11 __P.3d__ (S-1-SC-38376, Sept. 29, 2022); State v. Off. of Pub. Def. ex rel.
12 Muqqddin, 2012-NMSC-029, ¶ 54, 285 P.3d 622. “[Rules] are enacted as a whole,
13 and consequently each section or part should be construed in connection with every
14 other part or section, giving effect to each, and each provision is to be reconciled in
15 a manner that is consistent and sensible so as to produce a harmonious whole.”
16 Lion’s Gate Water, 2009-NMSC-057, ¶ 23 (internal quotation marks and citation
17 omitted). In construing a rule, we consider its purpose in conjunction with other
18 rules. See In re Michael L., 2002-NMCA-076, ¶ 10, 132 N.M. 479, 50 P.3d 574.
19 {7} In arguing that service of the subpoena duces tecum on her attorney was
20 ineffective, Bibiji relies on the language of Rule 1-069 and Rule 1-045 NMRA
4
1 (2009),1 which provides that when a judgment debtor is subpoenaed to appear at a
2 debtor’s examination, see Rule 1-069(A), “[s]ervice of a subpoena upon a person
3 named therein shall be made by delivering a copy thereof to such person.” Rule 1-
4 045(B)(2). The Trustees respond by pointing to other rules which, they argue,
5 indicate that service of a subpoena duces tecum on the attorney of record of a party
6 to ongoing litigation, as occurred here, is permissible. We agree with the Trustees.
7 {8} Construing Rule 1-069 in conjunction with other rules and in light of the rules’
8 purpose, we conclude that deeming ineffective the service of a subpoena duces
9 tecum on the attorney of record of a party to ongoing litigation 2 would be contrary
10 to the rules’ “underlying intent.” See Miller, 2008-NMCA-048, ¶ 11. To begin, Rule
11 1-005 NMRA establishes an intent that the attorney of a party to ongoing litigation
12 receive service of all pleadings, discovery requests, and other documents and
13 notices. Rule 1-005(A) provides, in relevant part:
1
Unless otherwise noted, all citations to Rule 1-045 in this opinion are to the
2009 amendment, which was the version applicable when the subpoena at issue was
served.
2
The parties litigated various issues in the district court between the date the
attorney fees judgment was entered in February 2014, and the date the notice of Rule
1-069 debtor’s examination duces tecum and subpoena duces tecum were served in
May 2015. We also note that, one month before the Trustees effected service of the
subpoena duces tecum, Bibiji’s attorney filed a notice of unavailability in which he
requested that no hearing “in this matter” be set for the next several weeks due to
other engagements. The notice indicates that Bibiji’s attorney considered the matter
an active case such that it was necessary to inform the court of his temporary
unavailability for hearings.
5
1 Except as otherwise provided in these rules, . . . every pleading
2 subsequent to the original complaint . . ., every paper relating to
3 discovery required to be served upon a party, unless the court otherwise
4 orders, . . . and every written notice, appearance, . . . and similar paper
5 shall be served upon each of the parties.
6 {9} The rule further provides that “[w]henever under these rules service is
7 required or permitted to be made upon a party represented by an attorney, the service
8 shall be made upon the attorney.” Id. (emphases added); accord Rule 1-045(B)(2)(b)
9 (“Prior to or at the same time as service of any subpoena commanding production of
10 documents . . . before trial, notice shall be served on each party in the manner
11 prescribed by Rule 1-005.” (emphases added)). Accordingly, the rules indicate that
12 the Trustees appropriately served the notice of Rule 1-069 debtor’s examination
13 duces tecum on Bibiji’s attorney of record, pursuant to Rule 1-005.
14 {10} The rules similarly demonstrate an underlying intent to permit service of a
15 subpoena duces tecum on the attorney of party to ongoing litigation. Rule 1-
16 030(B)(5) NMRA provides, “The notice to a party deponent may be accompanied
17 by a request made in compliance with Rule 1-034 . . . for the production of
18 documents.” Rule 1-034, in turn, provides that such a request for documents “may
19 . . . be served . . . on any . . . party with or after service of the summons and complaint
20 on that party,” Rule 1-034(B), and distinguishes between parties and nonparties. See
21 Rule 1-034(C) (“A person not a party to the action may be compelled to produce
22 documents and things or to submit to an inspection as provided in Rule 1-045.”).
6
1 Thus, service of a deposition notice accompanied by a request for documents—in
2 essence a subpoena duces tecum—is permitted to be made, pursuant to Rule 1-
3 030(B)(5) and Rule 1-005(B), on the attorney representing the deposed party.
4 {11} Similarly, Rule 1-089(D), upon which the district court relied to determine
5 that the Trustees had effected valid service of the subpoena duces tecum on Bibiji’s
6 attorney, demonstrates an underlying intent that a party’s attorney of record may
7 remain subject to service in cases in which a judgment subject to appeal has been
8 entered but the attorney remains engaged in related litigation. See Rule 1-089(D)
9 (“Attorneys of record shall continue to be subject to service for ninety (90) days after
10 entry of final judgment.”). Construing Rule 1-089(D) in conjunction with rules
11 relating to service of discovery requests on a party is also consistent with Rule 1-
12 069(B), which provides that a judgment creditor may, in certain circumstances,
13 obtain discovery from any person “in any manner provided in these rules.”
14 {12} Moreover, our construction of these rules is consistent with our directive to
15 construe the rules to achieve their purpose, that is, “to secure the just, speedy and
16 inexpensive determination of every action.” Rule 1-001(A) NMRA. Rule 1-001 is
17 “intended to allow for the liberal construction of the rules.” H-B-S P’ship v. Aircoa
18 Hosp. Servs., Inc., 2008-NMCA-013, ¶ 15, 143 N.M. 404, 176 P.3d 1136; see id.19 ¶ 17 (noting that “New Mexico appellate opinions have recognized . . . the flexibility
20 of the Rules of Civil Procedure,” allowing courts “the flexibility to address
7
1 ambiguity in a rule that would allow alternative outcomes”). This Court has
2 recognized that the “prime purpose of the new rules is to eliminate delays resulting
3 from reliance upon pure technicalities and generally to streamline and simplify
4 procedure so that the merits of the case might be reached.” Id. ¶ 17 (internal
5 quotation marks and citation omitted).
6 {13} Construing Rule 1-069 to permit service of a subpoena duces tecum on the
7 attorney of a party in ongoing litigation furthers this “prime purpose.” By contrast,
8 deeming such service inadequate in cases in which the attorney of a party involved
9 in ongoing litigation has received notice of a subpoena duces tecum and responded
10 to it, as occurred here, would lead to unnecessary delay resulting from reliance upon
11 a technicality, frustrating the district court’s ability to reach the merits of the case.
12 Service of a subpoena duces tecum on the attorney of a party in these circumstances
13 is generally sufficient, we think, to “ensure receipt, so that notice will be provided
14 to the recipient, and enforcement of the subpoena will be consistent with the
15 requirements of due process.” 9 James Wm. Moore, et al., Moore’s Federal Practice
16 § 45.21[1] (Lexis 2022) (stating the “apparent purpose” of the language of Rule 45
17 of the Federal Rules of Civil Procedure calling for “delivering” a copy of a subpoena
18 to the person named, but noting that “[r]equiring personal service of a subpoena . . .
19 seems unduly restrictive”). Permitting such service is thus consistent with the
20 purpose of the rules.
8
1 {14} Accordingly, we conclude that service of the Trustees’ subpoena duces tecum
2 to Bibiji through her attorney of record was effective, and therefore valid. Having
3 determined that the discovery order was based on a valid subpoena, we conclude
4 that the district court did not err in entering the discovery order in enforcement
5 thereof.
6 {15} Even so, however, if we were to conclude that serving Bibiji’s attorney of
7 record was improper, Bibiji cannot complain about the resulting discovery order,
8 having invited the remedies provided by this order, as we further explain below. See
9 Chris L. v. Vanessa O., 2013-NMCA-107, ¶ 27, 320 P.3d 16 (“Invited error occurs
10 where a party has contributed, at least in part, to perceived shortcomings in a
11 [district] court’s ruling, and, as a result, the party should hardly be heard to complain
12 about those shortcomings on appeal.” (alteration, omission, internal quotation
13 marks, and citation omitted)).
14 {16} Following service, Bibiji moved to quash the subpoena and vacate the Rule
15 1-069(A) hearing, and for a protective order. The motion states, “Bibiji construes
16 [the notice of the debtor’s examination] and request for documents as a request for
17 production of documents, to which answers and objections are not due until June 19,
18 2015. Alternatively, Bibiji asks for a protective order rescheduling the hearing date
19 and limiting the documents required to be produced.” The motion was based in part
20 on representations regarding Bibiji’s medical condition, which her attorney claimed
9
1 prohibited her from traveling, and raised detailed objections to the documents
2 requested by the Trustees.
3 {17} At the motion hearing, the district court indefinitely quashed the Trustees’
4 subpoena requiring Bibiji’s appearance at a Rule l-069(A) debtor’s examination
5 because of her medical condition. The district court also reviewed the document
6 request list attached to the subpoena and the deposition notice, significantly narrowed
7 the document request, and instructed Bibiji that she would have thirty days from the
8 entry of the discovery order to comply. The district court then entered the discovery
9 order, which granted Bibiji’s request to quash the subpoena compelling her
10 testimony, found that the Trustees’ document requests, taken as a whole, to be overly
11 broad and burdensome in some respects, ordered those requests limited to certain
12 documents described in the order, and provided that “Bibiji shall produce to the
13 Trustees[] [those documents] within thirty days of entry of th[e] [o]rder.”
14 {18} In sum, Bibiji received the remedies sought by her motion: “[Q]uash the
15 [s]ubpoena and vacate the Rule 1-069 hearing” or “limit[] the scope of
16 documents to be produced.” Bibiji’s motion to quash, in essence, asked the district
17 court to treat the documents as a Rule 1-034 matter, and the district court followed
18 its lead. Accordingly, even if we were to accept Bibiji’s argument that the district
19 court erred in entering the discovery order because of an invalid subpoena, any error
20 was invited.
10
1 {19} Finally, to the extent Bibiji contends the entry of the discovery order violated
2 her due process rights based on lack of proper service and an opportunity to respond
3 pursuant to Rule 1-034, we disagree. As discussed, service of the subpoena duces
4 tecum was proper under the circumstance of this case. Bibiji’s attorney also
5 acknowledged that he received notice of the hearing addressing the Trustees’ request
6 for documents and had the opportunity to appear. In advance of the discovery order,
7 Bibiji raised detailed objections by motion to the documents requested, and the
8 district court’s discovery order ultimately took Bibiji’s objections into account,
9 narrowing the Trustees’ document request. Accordingly, entry of the discovery order
10 did not violate Bibiji’s due process rights. See Sandia v. Rivera, 2002-NMCA-057,
11 ¶ 12, 132 N.M. 201, 46 P.3d 108 (“Generally, due process requires notice and
12 hearing before deprivation.” (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
13 II. The District Court Did Not Err in Ordering Bibiji to Produce Federal
14 Tax Returns
15 {20} The discovery order directed Bibiji to disclose, among other documents,
16 certain federal tax returns. Bibiji argues the district court erred in ordering her to
17 produce income tax returns, contending that such returns are absolutely privileged
18 and pointing to Rule 11-502(A) NMRA and state and federal statutes providing for
19 the confidentiality of tax information.
20 {21} The authorities cited by Bibiji, however, do not support the claim that federal
21 tax returns are absolutely privileged. See Breen v. State Tax’n & Revenue Dep’t,
11
1 2012-NMCA-101, ¶ 24, 287 P.3d 379 (“Rule 11-502 explicitly makes the privilege
2 dependent on whether the relevant statutes that require the return or report to be
3 made also provide for a privilege to refuse disclosure.”); Commodity Futures
4 Trading Comm’n v. Collins, 997 F.2d 1230, 1232-33 (7th Cir. 1993) (stating that 26
5 U.S.C. § 6103, which provides that tax returns and return information shall be
6 confidential, “does not block access, through pretrial discovery or otherwise, to
7 copies of tax returns in the possession of litigants; all it prevents is the IRS’s sharing
8 tax returns with other government agencies”). Moreover, although this Court
9 addressed the privilege against disclosure of certain tax information in Breen, Breen
10 recognized that a taxpayer may waive that privilege. See 2012-NMCA-101, ¶ 34.
11 {22} Therefore, even if we were to assume for the sake of argument that Bibiji’s
12 income tax returns are privileged, Bibiji waived the privilege by placing her tax
13 liability at issue in litigation related to the attorney fees judgment. See Pub. Serv.
14 Co. of N.M. v. Lyons, 2000-NMCA-077, ¶ 15, 129 N.M. 487, 10 P.3d 166 (“A person
15 who places privileged matters ‘at-issue’ in the litigation can be said to have
16 implicitly consented to disclosure.”). Specifically, Bibiji cited tax liabilities as a
17 reason she did not have sufficient funds to post an appeal bond to secure the attorney
18 fees judgment. In doing so, Bibiji sought to limit her liability for the attorney fees
19 judgment by relying on tax debts, thereby waiving the privilege. Cf. id. ¶ 22
20 (recognizing waiver of the attorney-client privilege where a party “seeks to limit its
12
1 liability by describing that advice and by asserting that he [or she] relied on that
2 advice” (internal quotation marks and citation omitted)). Accordingly, the district
3 court did not err in ordering Bibiji to produce certain federal tax returns.
4 III. The District Court’s Sanctions Award Did Not Constitute an Abuse of
5 Discretion or Violate Due Process
6 {23} The Discovery Order entered in June 2015 gave Bibiji thirty days to comply.
7 The district court held a status conference in October 2015, and in January 2016 the
8 Trustees moved for sanctions and for an order to show cause. Following briefing and
9 a day-long evidentiary hearing held in October 2019, the district court granted the
10 Trustees’ motion for sanctions, ordering Bibiji and her attorney to pay, jointly and
11 severally, (1) the Trustees’ fees and costs incurred as a result of Bibiji’s failure to
12 comply with the discovery order; and (2) $1,000 per day until Bibiji produced the
13 documents called for by the discovery order and certain additional information, with
14 payment to be made after all rights of appellate review had been exhausted. Bibiji
15 argues the district court erred in awarding sanctions, contending that the award
16 constituted an abuse of discretion and violated the due process rights of her attorney
17 and herself.
18 A. Abuse of Discretion
19 {24} The district court entered the $1,000 per-day sanction pursuant to Rule 1-037
20 NMRA and the court’s inherent power to enforce its orders. Bibiji argues the district
13
1 court abused its discretion by (1) failing to properly apply the legal standard under
2 Rule 1-037, (2) exercising its inherent authority, and (3) sanctioning Bibiji and her
3 attorney, jointly and severally, in the amount of $1,000 per day until the relevant
4 documents and information were produced.
5 {25} “We review a [district] court’s decision to impose discovery sanctions under
6 Rule 1-037(B)(2) for an abuse of discretion.” Lewis ex rel. Lewis v. Samson, 2001-
7 NMSC-035, ¶ 13, 131 N.M. 317, 35 P.3d 972; see also Weiss v. Thi of N.M. Valle
8 Norte, LLC, 2013-NMCA-054, ¶¶ 15-16, 301 P.3d 875 (stating that the district
9 court’s imposition of discovery sanctions based on its inherent power to control its
10 proceedings is evaluated for an abuse of discretion). Under this standard of review,
11 “we will disturb the [district] court’s ruling only when the [district] court’s decision
12 is clearly untenable or contrary to logic and reason.” Lewis, 2001-NMSC-035, ¶ 13
13 (internal quotation marks and citation omitted); see also State v. Candelaria, 2008-
14 NMCA-120, ¶¶ 9, 12, 144 N.M. 797, 192 P.3d 792 (stating that, in reviewing a
15 district court’s imposition of sanctions pursuant to its inherent authority, the
16 appellate court is “required to view the evidence, and its inferences, in the light most
17 favorable to the [lower] court’s decision”).
18 1. Rule 1-037
19 {26} Bibiji first argues the district court abused its discretion by failing to properly
20 apply the legal standard under Rule 1-037. Bibiji argues Rule 1-037 sanctions are
14
1 only warranted when a party’s position in resisting discovery is not “substantially
2 justified,” citing Rule 1-037(D). Bibiji contends her conduct was substantially
3 justified because there was no proper service of the subpoena and the documents
4 requested included statutorily privileged income tax returns. We disagree.
5 {27} As an initial matter, Rule 1-037(B) rather than 1-037(D) applies here, where
6 a party has failed to comply with a discovery order issued by the district court. See
7 Sandoval v. Martinez, 1989-NMCA-042, ¶ 4, 109 N.M. 5, 780 P.2d 1152 (stating
8 that Rule 1-037(B) “deals with sanctions, including dismissal and default, that the
9 court may impose for violation of discovery orders”). Rule 1-037(B)(2) provides that
10 in such cases
11 the court shall require the party failing to obey the order or the attorney
12 advising that party or both to pay the reasonable expenses, including
13 attorney[] fees, caused by the failure, unless the court finds that the
14 failure was substantially justified or that other circumstances make an
15 award of expenses unjust.
16 (Emphases added.)
17 {28} Here, the district court made no finding that Bibiji’s noncompliance was
18 substantially justified but instead found that “[g]ood cause has not been shown by
19 [Bibiji’s attorney] or Bibiji why they should not be sanctioned by the [district c]ourt
20 for their failure to comply with the [discovery] order.” Cf. Pierce v. Underwood, 487
21 U.S. 552, 559 (1988) (concluding that a statute which provides that “attorney[] fees
22 shall be awarded unless the court finds that the position of the United States was
15
1 substantially justified,” as opposed to simply “unless the position of the United
2 States was substantially justified” emphasizes “the fact that the determination is for
3 the district court to make, and thus suggests some deference to the district court upon
4 appeal” (internal quotations marks omitted and citation omitted)). In finding that
5 Bibiji and her attorney had not shown good cause, the district court’s sanctions order
6 stated that neither Bibiji nor her attorney had shown good cause for failing to petition
7 the court to stay or reconsider the discovery order, or post a bond, and noted that
8 Bibiji and her attorney had the ability to comply with the order at all relevant times
9 but had not done so. In addition, the discovery order provides that the responsive
10 documents would be deemed confidential, providing safeguards of this
11 information’s privacy. Based on the foregoing, we conclude the district court did not
12 abuse its discretion in declining to find that Bibiji’s failure to obey the discovery
13 order was substantially justified. Accordingly, the district court did not fail to
14 properly apply the legal standard under Rule 1-037.
15 2. The District Court’s Inherent Authority
16 {29} Bibiji next argues that the district court abused its discretion in exercising its
17 inherent authority. Bibiji contends that her actions were not undertaken in bad faith
18 and were not frivolous filings, but rather “were taken out of concern for protection
19 of statutory privileges from waiver by the production of inherently private
16
1 information and because of the Trustees’ failure to properly serve the subpoena.”
2 We are unpersuaded.
3 {30} “We have long held that a court’s power is broader than merely the statutory
4 authority to impose sanctions to cover a prejudiced party’s costs when the offending
5 party has violated a rule or statute.” Weiss, 2013-NMCA-054, ¶ 22. Our Supreme
6 Court has thus recognized that “a court’s inherent authority extends to all conduct
7 before that court and encompasses orders intended and reasonably designed to
8 regulate the court’s docket, promote judicial efficiency, and deter frivolous filings.”
9 State ex rel. N.M. State Highway & Transp. Dep’t v. Baca, 1995-NMSC-033, ¶ 27,
10 120 N.M. 1, 896 P.2d 1148. “In that vein, a court must be able to command the
11 obedience of litigants and their attorneys if it is to perform its judicial functions. In
12 these circumstances, a court is permitted to vindicate its judicial authority and
13 impose sanctions.” Weiss, 2013-NMCA-054, ¶ 22 (internal quotations marks and
14 citations omitted); accord In re Jade G., 2001-NMCA-058, ¶ 28, 130 N.M. 687, 30
15 P.3d 376 (“Under its inherent authority, a court may sanction parties and attorneys
16 to ensure compliance with the proceedings of the court.”); Sanchez v. Borrego, 2004-
17 NMCA-033, ¶ 19, 135 N.M. 192, 86 P.3d 617 (stating that sanctions can be imposed
18 to “preserve the integrity of the judicial process and the due process rights of the
19 other litigants” (internal quotation marks and citation omitted)).
17
1 {31} Although Bibiji argues she did not act in bad faith, she never sought a stay
2 from the district court in connection with the discovery order. In refusing to comply
3 with the discovery order, Bibiji thus engaged in conduct in direct defiance of the
4 court’s authority. Cf. N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028,
5 ¶ 16, 127 N.M. 654, 986 P.2d 450 (stating that “an award of attorney fees without a
6 basis in a statute, contractual provision, or court rule may be justified as an exercise
7 of a court’s inherent powers when litigants, their attorneys, or both have engaged in
8 bad faith conduct before the court or in direct defiance of the court’s authority”
9 (emphases added) (internal quotation marks and citation omitted)). Accordingly, the
10 district court did not err in exercising its inherent authority to impose sanctions to
11 preserve the integrity of the judicial process.
12 3. Sanction Amount
13 {32} To the extent Bibiji argues the district court abused its discretion by
14 sanctioning her in the amount of $1,000 per day until Bibiji produced the relevant
15 documents and information, we cannot say the district court’s decision is clearly
16 untenable or contrary to logic and reason in light of the full record. Cf. Sandoval,
17 1989-NMCA-042, ¶ 23 (“We will not reverse a dismissal under Rule 1-037 unless,
18 after reviewing the full record and the reasons the district court gave for its order,
19 we are left with a definite and firm conviction that the court below committed a clear
18
1 error of judgment in the conclusion it reached upon a weighing of the relevant
2 factors.” (internal quotation marks and citation omitted)). We explain.
3 {33} The district court’s sanctions order stems from the Trustees’ attempt to collect
4 on the attorney fees judgment entered in 2012 and awarded in the amount of
5 $718,720.63 in 2014. In 2017 the district court noted that Bibiji’s debt under the
6 judgment exceeded $1 million. Bibiji has taken four previous appeals relating to the
7 attorney fees judgment or collection thereof, and Bibiji does not dispute that she has
8 never posted an appeal bond.
9 {34} After an evidentiary hearing on the Trustees’ sanctions motion at which the
10 district court heard testimony from Bibiji’s attorney, the district court issued its
11 sanctions order, which found no evidence that Bibiji was unable to pay the attorney
12 fees judgment. Instead, the court found it was clear from the evidence that Bibiji and
13 her attorney had the ability to comply with the discovery order at all relevant times
14 but had not done so. In addition, the sanctions order stated that neither Bibiji nor her
15 attorney had shown good cause for failing to petition the court to stay or reconsider
16 the discovery order, or post a bond. The district court thus concluded that Bibiji and
17 her attorney had not shown good cause for failing to comply with the discovery
18 order.
19 {35} These findings and conclusions are supported by our full-record review and
20 our consideration of the totality of circumstances surrounding Bibiji’s failure to
19
1 comply with the June 2015 discovery order. See Medina v. Found. Rsrv. Ins. Co.,
2 1994-NMSC-016, ¶ 8, 117 N.M. 163, 870 P.2d 125 (considering the full record and
3 totality of the circumstance surrounding discovery violations in reviewing the
4 district court’s finding that the plaintiff willfully failed to comply with his discovery
5 obligations). As discussed, at the October 2015 status conference held several
6 months after the discovery order deadline, the district court reminded Bibiji’s
7 attorney that he was under a duty to comply with the order and that his continuing
8 failure to do so would be taken into consideration, noting that he had not requested
9 a stay of the order. In September 2017, more than two years after the discovery order
10 deadline, the district court observed that the facts and procedural history relevant to
11 this matter demonstrated an effort to evade the attorney fees judgment and noted
12 that, “[e]ver since [attorney] fees were originally awarded against Bibiji, through her
13 [attorney], she has claimed herself a pauper, despite the evidence to the contrary
14 shown [at] trial.” In light of Bibiji’s defiance of the district court’s authority, for
15 which the court found no good cause, we cannot say the district court’s daily sanction
16 was clearly untenable or contrary to logic and reason. Accordingly, this sanction did
17 not constitute an abuse of discretion.
18 B. Due Process
19 {36} Finally, Bibiji argues the district court’s sanction of $1,000 per day violates
20 the due process rights of herself and her attorney, contending that the sanction denies
20
1 the opportunity for judicial review and is not the minimum sanction necessary to
2 coerce compliance. Again, we are not persuaded by this argument.
3 {37} “We review questions of constitutional law and constitutional rights, such as
4 due process protections, de novo.” N.M. Bd. of Veterinary Med. v. Riegger, 2007-
5 NMSC-044, ¶ 27, 142 N.M. 248, 164 P.3d 947; see also State v. Ngo, 2001-NMCA-
6 041, ¶ 10, 130 N.M. 515, 27 P.3d 1002 (“Whether [a sanctioned party] was afforded
7 procedural due process is a question of law that we review de novo.”). Due process
8 requires that a person subject to a sanction receive, at a minimum, notice of the bases
9 for the threatened sanctions and an opportunity to defend against them. See In re
10 Byrnes, 2002-NMCA-102, ¶ 16, 132 N.M. 718, 54 P.3d 996 (“[T]he minimal due
11 process requirements of a prior warning and an opportunity to defend must be strictly
12 maintained.”); see also Papatheofanis v. Allen, 2009-NMCA-084, ¶ 17, 146 N.M.
13 840, 215 P.3d 778 (“In cases of indirect civil contempt, due process requires that a
14 party be given notice of the charges.”); Doña Ana Sav. & Loan Ass’n, F.A. v.
15 Mitchell, 1991-NMCA-054, ¶¶ 13-14, 113 N.M. 576, 829 P.2d 655 (concluding that
16 an attorney sanctioned for violating Rule 1-011 NMRA was afforded due process
17 where the district court gave the attorney notice of the essential facts and an
18 opportunity to be heard).
19 {38} Here, Bibiji received notice of the bases for the threatened sanction and had
20 an opportunity to defend against them. The Trustees’ motion for sanctions and order
21
1 to show cause explained that the basis for sanctioning Bibiji was her failure to
2 comply with the discovery order and proposed a $1,000 daily sanction until Bibiji
3 complied with the order and filed certain additional documents and information.
4 Bibiji filed a memorandum in opposition to the Trustees’ motion for an order to
5 show cause and argued that no sanctions were justified. The district court held an
6 evidentiary hearing on the motion at which it heard testimony from Bibiji’s attorney.
7 The district court then granted the Trustees’ request as set forth in the original
8 January 2016 motion. Bibiji filed a motion for reconsideration in which she argued
9 against this sanction, which the district court denied.
10 {39} Insofar as Bibiji argues that the district court’s $1,000 per-day sanction
11 imposes a chilling effect on a litigant’s due process right of judicial review of the
12 sanction award, we are likewise unpersuaded. Bibiji cites several federal cases in
13 support of the proposition that government action violates due process when the
14 penalties for disobedience are so enormous that they intimidate a potential
15 challenger from exercising his or her right of access to the courts. The cases Bibiji
16 cites, however, involved fines mandated by statute, which accrue as a matter of law
17 rather than sanctions awarded after—and based on—the district court’s
18 consideration of briefing, evidence, and testimony on the issue. Therefore, these
19 cases are not controlling. See Fernandez v. Farmers Ins. Co., 1993-NMSC-035,
20 ¶ 15, 115 N.M. 622, 857 P.2d 22. Absent citation to relevant authority and
22
1 considering that she received notice of the bases for the threatened sanctions and an
2 opportunity to defend against them, Bibiji was not denied the opportunity for judicial
3 review.
4 {40} Finally, to the extent Bibiji contends the sanction was not the minimum
5 sanction necessary to coerce compliance, this argument is speculative. The district
6 court granted the Trustees’ request for a sanction of $1,000 per day—a request the
7 Trustees set forth in their motion for sanctions and order to show cause. Bibiji’s
8 memorandum in opposition to the motion argued that no sanctions were justified but
9 did not discuss the Trustees’ proposed amount. In her motion to reconsider, Bibiji
10 argued the sanction was too high but proposed no alternative and provided no
11 evidence to support an alternative. See Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150
12 N.M. 44, 256 P.3d 987 (“The mere assertions and arguments of counsel are not
13 evidence.” (internal quotation marks and citation omitted)); cf. Marchman v. NCNB
14 Tex. Nat. Bank, 1995-NMSC-041, ¶ 54, 120 N.M. 74, 898 P.2d 709 (recognizing
15 that Fed. R. Civ. P. 37 “places the burden on the disobedient party to avoid expenses
16 by showing that his failure is justified or that special circumstances make an award
17 of expenses unjust” (internal quotation marks and citation omitted)). Given our
18 discussion above, we cannot say that the district court’s sanction is more stern than
19 reasonably necessary to preserve the integrity of the judicial process. See United
20 Nuclear Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 393, 96 N.M. 155, 629 P.2d
231 231 (“It is only where the sanction invoked is more stern than reasonably necessary
2 that a denial of due process results.” (alteration, internal quotation marks, and
3 citation omitted)). Accordingly, the district court’s daily sanction did not violate due
4 process.
5 CONCLUSION
6 {41} For the foregoing reasons, we affirm.
7 {42} IT IS SO ORDERED.
8 ____________________________
9 KRISTINA BOGARDUS, Judge
10 WE CONCUR:
11 ________________________________
12 GERALD E. BACA, Judge
13 ________________________________
14 MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation
24