Cavanagh v. Cavanagh CA2/6

Filed 10/26/22 Cavanagh v. Cavanagh CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
PETER J. CAVANAGH, 2d Civil No. B310124
(Super. Ct. No. 56-2016-
Plaintiff and Appellant, 00488427-PR-TR-OXN)
(Ventura County)
v.
MICHAEL F. CAVANAGH, as
Trustee, etc.,
Defendant and Respondent.
Respondent Michael F. Cavanagh (Trustee) is the trustee
and one of seven beneficiaries of the Francois and Mary Carmel
Cavanagh 1988 Trust (Trust). The deceased grantors of the
Trust are Trustee’s parents. Trustee’s brother, Peter J.
Cavanagh, also a beneficiary of the Trust, appeals in propria
persona from a postjudgment order denying his motion for
discovery sanctions.
This is appellant’s second appeal in this matter. We
granted appellant’s motion to take judicial notice of the record in
the first appeal. In that appeal, we affirmed the trial court’s
judgment approving Trustee’s accounting and his actions on
behalf of the Trust. (Cavanagh v. Cavanagh (April 18, 2022,
B294140) [nonpub. opn.] (Cavanagh).) We also affirmed the trial
court’s postjudgment order requiring appellant to pay Trustee’s
reasonable expenses and costs of litigation, including attorney
fees of $72,699, because appellant’s contest of Trustee’s account
was without reasonable cause and in bad faith.
We conclude that the trial court did not abuse its discretion
in denying appellant’s postjudgment motion for discovery
sanctions. Accordingly, we affirm.
First Appeal
The first appeal arose from the trial court’s order requiring
Trustee to render an accounting of the Trust assets. In our prior
opinion we noted that in the trial court appellant had claimed:
“‘Trustee should be assessed exemplary damages’ because he has
‘contumaciously obstructed [appellant’s] lawful right to
information through bad-faith litigation and abuse of process.
There is credible evidence he has vowed to deplete Trust assets
doing so. . . .’” (Cavanagh, supra, slip opn. at p. 3.) “Trustee
[should] be ‘surcharge[d]’ for “‘willful misconduct.’”” (Id. at p. 2.)
In our prior opinion we observed that, after a five-day court
trial, the trial court had concluded: “‘[T]here is no evidence of
malfeasance or misfeasance on the part of [Trustee] . . . .
[Trustee] is in the position . . . of the aphorism that no good deed
goes unpunished. He has been the subject of undeserved
criticism from his brother, which he has borne with a largely stoic
demeanor.’” (Cavanagh, supra, slip opn. at pp. 3-4.) “‘None of the
improper conduct on the part of the trustee has been found to be
true. There was not a reasonable basis before the petition was
filed to believe they were true. . . . [Appellant] has availed
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himself of the judicial system, and succeeded in causing the Trust
to incur needless expense to the potential detriment of not only
himself, but the other [six] beneficiaries. He has filed frivolous
motions. He has attempted to sue counsel for the trust on
specious and frivolous legal theories.’” (Id. at p. 4.)
Appellant’s Postjudgment Motion
The judgment appealed from in the first appeal, i.e., the
trial court’s judgment approving Trustee’s accounting and
conduct, was filed in September 2018. The postjudgment motion
at issue here was filed more than two years later on October 29,
2020, while the first appeal was still pending. In the motion
appellant requested “discovery sanctions pursuant to CCP [Code
of Civil Procedure] §§ 2023.010, 2023.030; . . . equitable remedies
pursuant to non-statutory but inherent powers shown herein to
be available to [the trial] Court; . . . remedies pursuant to PC
[Probate Code] §§ 17200 et seq, 17211, 16440, 16441; . . . Orders
to Show Cause re: contempt to [Trustee] and [Trustee’s counsel]
pursuant to CCP §§ 2023.010, 2023.030(e), 1209(a), 128(a); Penal
Code § 166(a) and . . . other remedies both statutory and non-
statutory as set forth more fully below.”
Appellant alleged, “The grounds for the motion are that the
trustee, [his] counsel and counsel’s law firm have individually
and collaboratively engaged in pervasive litigation abuse,
contumacious defiance of lawful authority; fraud and deceit upon
the courts; reckless disregard for the truth, discovery abuse that
includes spoliation and/or withholding of evidence, unmeritorious
objections, stonewalling and failure to meet and confer; and with
forays into criminality.” Appellant’s motion included a list of 32
“remedies sought” for Trustee’s and counsel’s misconduct.
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In support of the motion, appellant submitted a 148-page
memorandum. Appellant requested that the trial court take
judicial notice of his 94-page opening brief in the prior pending
appeal. The trial court did not rule on the request. The opening
brief in the prior appeal is included in the present appeal’s
Clerk’s Transcript.1
Trustee’s Opposition to the Motion and
Appellant’s Reply to His Opposition
In his opposition to appellant’s postjudgment motion,
Trustee claimed that, because of the pending appeal, the trial
court lacked jurisdiction to rule on the motion except to the
extent it requested discovery sanctions. Trustee relied on Code of
Civil Procedure section 916, subdivision (a), which provides,
“[T]he perfecting of an appeal stays proceedings in the trial court
upon the judgment or order appealed from or upon the matters
embraced therein or affected thereby . . . , but the trial court may
proceed upon any other matter embraced in the action and not
affected by the judgment or order.” “Under section 916, ‘the trial
court is divested of’ subject matter jurisdiction over any matter
embraced in or affected by the appeal during the pendency of that
appeal. [Citation.] . . . Thus, ‘that court is without power to
proceed further as to any matter embraced therein until the
appeal is determined.’” (Varian Medical Systems, Inc. v. Delfino
(2005) 35 Cal.4th 180, 196-197.) “The rule prevents the trial
court from rendering an appeal futile by altering the appealed
judgment or order by conducting other proceedings that may
affect it. [Citation.] [¶] However, the pendency of an appeal
does not divest the trial court of jurisdiction to determine
1Trustee has requested that we take judicial notice of his
respondent’s brief in the prior appeal. We grant the request.
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ancillary or collateral matters which do not affect the judgment
on appeal.” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.)
In the trial court Trustee argued, “Even a cursory review of
the Motion . . . shows that [except for appellant’s request for
discovery sanctions] this is all related to the orders already
appealed from.” In his brief in the present appeal, Trustee claims
that, of the 32 “remedies sought” in appellant’s motion, the only
“items that are not ‘embraced’ or ‘affected’ by the First Appeal are
items 3 and 15,” which relate to discovery sanctions.
In his reply to Trustee’s opposition to the motion, appellant
said that “[w]hat he is seeking . . . is Discovery sanctions,” and
“the automatic stay prescribed by CCP § 91[6] does not apply to
Discovery sanctions or [the trial court’s] inherent power to
remedy litigation abuse.” Appellant proceeded to discuss
Trustee’s alleged spoliation of evidence. Appellant asserted,
“[S]poliation is considered a particularly reprehensible form of
Discovery abuse that is subject to a motion for sanctions even
after rendition of judgment and while an appeal is pending.” (See
Department of Forestry & Fire Protection v. Howell (2017) 18
Cal.App.5th 154, 197, disapproved on another ground in
Presbyterian Camp & Conference Centers, Inc. v. Superior Court
(2021) 12 Cal.5th 493, 516, fn. 17 [postjudgment motion for
discovery sanctions against Cal Fire “is collateral to the appeal
because it is based on Cal Fire’s alleged prejudgment discovery
abuses, for which sanctions proceedings could have occurred
regardless of the outcome of the appeal of the judgment”]; Day v.
Collingwood (2006) 144 Cal.App.4th 1116, 1125 [“a trial court’s
consideration of a postjudgment sanctions request does not
undermine the finality of the merits of the judgment”].)
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We construe appellant’s reply as narrowing his
postjudgment motion to a request for discovery sanctions based
primarily on Trustee’s spoliation of evidence. “Spoliation of
evidence means the destruction or significant alteration of
evidence or the failure to preserve evidence for another’s use in
pending or future litigation.” (Williams v. Russ (2008) 167
Cal.App.4th 1215, 1223 (Williams).)
Appellant’s Memorandum in Support of Discovery Sanctions
In his memorandum in support of his request for discovery
sanctions, appellant contended: “After trial [he] discovered that
in April 2018, [Trustee’s] counsel had made contemporaneous
entries in an official business record (timesheet) that [counsel]
had deleted approximately 372 computer documents that he
knew [appellant] had Requested and that [Trustee] had promised
to produce in his Response. They were not produced and have
never been, produced. . . . Upon being confronted with
allegations of spoliation, counsel swore a new representation that
he did not delete documents . . . .”
Trustee’s counsel declared under penalty of perjury: “There
were no emails that were destroyed. There were no documents
that were destroyed. There were none that were deleted from
servers. I received documents to be reviewed for production. As I
went through that process I decided which documents were not
relevant or not responsive and I ‘deleted’ those from the
documents that we were going to provide electronically. In
addition, I did review matters tak[ing] into consideration
attorney-client privilege and as to those matters which I decided
were covered by attorney client privilege, I also removed those
from the documents which we were going to produce. There was
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no loss of any records and there was no destruction of any
records.”
Appellant noted: “At a hearing on February 18, 2020 before
the trial judge, [Trustee’s] counsel made this statement: [‘]I was
reviewing emails and as I reviewed them I deleted ones that were
not relevant. . . . My client had provided me with a copy of all
emails. They were deleted from what was to be presented to
[appellant]. That was not felonious; that was not a destruction of
records; that was nothing other than the ordinary course of
deciding what was relevant to [appellant’s] request and what was
not.[’]”
Appellant alleged: “[O]ut of 466 documents [Trustee]
promised to produce, at least 371 were spoliated and
approximately 74 emails were withheld. Counsel offers no
explanation as to why the uncontroverted emails were withheld
notwithstanding two new explanations.” “It must be presumed
that there is more undiscovered spoliation.”
Trial Court’s Ruling on Motion
The trial court denied appellant’s postjudgment motion in a
brief order: “‘The court finds that the motion either fails to
demonstrate any ground for relief or raises issues that were
previously determined against the moving party at trial and post-
trial, which rulings are now either final or the subject of an
appeal.’”
Appellant contends that the trial court’s order shows it
“summarily denied [his] motion on the implied grounds it lacked
jurisdiction.” We disagree. The motion’s failure “to demonstrate
any ground for relief” did not result in a lack of subject matter or
personal jurisdiction. The trial court impliedly found that
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appellant had failed to present evidence warranting the
imposition of discovery sanctions.
Appellant Has Not Shown that the Trial
Court Lacked Fundamental Jurisdiction
In our opinion in the first appeal, we noted that appellant’s
petition to compel Trustee to render an accounting had been filed
in the Solano County Superior Court. “[T]he Solano County
Superior Court granted Trustee’s motion to change the venue to
Ventura County for the convenience of witnesses.” (Cavanagh,
supra, slip opn. at p. 2.)
In his opening brief in the present appeal, appellant claims
that his “motion properly raises [the Ventura County Superior
Court’s] jurisdictional infirmity over [him] on grounds proper
venue is and always has been, Solano County. [The Ventura
County Superior Court] must prove jurisdiction to exist and it
must do so as a threshold issue; before it may proceed.
Nevertheless, [it] has not done so.” Appellant emphasized the
jurisdictional issue in his oral argument before this court.
“Courts refer to jurisdiction over the parties and subject
matter as ‘fundamental jurisdiction,’ and where this is lacking
there is an entire absence of power to hear or determine the case.
[Citation.] ‘Judgments or orders by a court that lacks jurisdiction
in this fundamental sense are void. [Citation.] Objection may
be raised at any time . . . .’” (Airlines Reporting Corp. v. Renda
(2009) 177 Cal.App.4th 14, 19-20.)
Appellant is contending that the Ventura County Superior
Court lacked fundamental jurisdiction because Solano County
was the proper venue. “In contrast to jurisdiction, venue ‘is the
place of trial—a particular county of the state.’ [Citations.] As a
general rule, the issue of venue ‘does not involve a question of
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“fundamental” or “subject matter” jurisdiction over a proceeding.
“. . . Thus, venue is not jurisdictional in the fundamental sense;
and, both in civil and criminal cases, a change of venue from the
superior court of one county to the same court in another county
does not affect its jurisdiction over the subject matter of the
cause.” [Citations.]’” (California Gun Rights Foundation v.
Superior Court (2020) 49 Cal.App.5th 777, 788.) Accordingly, the
Ventura County Superior Court did not lack jurisdiction in the
fundamental sense.
The Trial Court Did Not Abuse Its Discretion
In Denying Appellant’s Motion for Discovery Sanctions
“‘“The power to impose discovery sanctions is a broad
discretion subject to reversal only for arbitrary, capricious, or
whimsical action. [Citations.] Only two facts are absolutely
prerequisite to imposition of the sanction: (1) there must be a
failure to comply . . . and (2) the failure must be wilful [citation].”
[Citation.]’” (Vallbona v. Springer (1996) 43 Cal.App.4th 1525,
1545.)
The burden is on appellant to establish an abuse of
discretion. (In re Marriage of Economou (1990) 224 Cal.App.3d
1466, 1476.) Appellant failed to carry his burden. The court was
entitled to believe Trustee’s counsel’s statements that he did not
spoliate or deliberately withhold any relevant evidence. In
reviewing a trial court’s order under the abuse of discretion
standard, we “resolve all evidentiary conflicts most favorably to
the trial court's ruling. . . . It is appellant’s burden to
affirmatively demonstrate error and where the evidence is in
conflict, we will affirm the trial court’s findings. [Citation.] We
presume the trial court’s order was correct and indulge all
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presumptions and intendments in its favor on matters as to
which it is silent.” (Williams, supra, 167 Cal.App.4th at p. 1224.)
Disposition
The order denying appellant’s postjudgment motion for
discovery sanctions is affirmed. Trustee shall recover his costs on
appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Roger L. Lund, Judge
Superior Court County of Ventura
______________________________
Peter J. Cavanagh, in pro. per., for Plaintiff and Appellant.
Thomas E. Olson, for Defendant and Respondent.