Dalessandro v. Mitchell

Filed 12/17/19 Certified for Publication 1/3/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JAMES DALESSANDRO, B293472
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS138171)
v.
ERIC ALBERT MITCHELL;
Defendant and Respondent,
PAUL S. LEVINE,
Objector and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Edward Moreton, Jr., Judge. Affirmed.
Law Office of Paul S. Levine and Paul S. Levine for
Plaintiff and Appellant.
Law Office of D. Joshua Staub and D. Joshua Staub for
Defendant and Respondent.
_____________________________
James Dalessandro and his counsel, Paul Samuel Levine,
(collectively, appellants) appeal from a postjudgment order
denying Dalessandro’s motion to compel the production of
documents and imposing $3,456.70 in sanctions against Levine
for discovery abuses. We affirm.
PROCEDURAL BACKGROUND
The underlying litigation involves residual payments owed
by Eric Mitchell to Dalessandro. Earlier this year, we affirmed a
default judgment against Mitchell and two sanctions orders
against Dalessandro.1 As part of his efforts to collect on the
judgment, Dalessandro issued a demand to Mitchell for the
identification, production, and copying of documents. Mitchell
failed to respond to the demand and Dalessandro filed a motion
to compel.
The trial court denied Dalessandro’s motion to compel and
ordered Levine to pay to Mitchell $3,456.70 in monetary
sanctions for failing to comply with discovery rules and
procedures, including failing to affix postage to the demand.
It further found the proof of service was false and Levine’s
declaration in support of the motion to compel was false.
The notice of appeal indicates “Dalessandro and his
counsel, Paul S. Levine” appeal from the September 25, 2018
order under Code of Civil Procedure section 904.1, subdivision
1 The full factual and procedural background may be found
in our previous opinions, Dalessandro v. Mitchell (Apr. 4, 2019,
B289365) [nonpub. opn.] and Dalessandro v. Mitchell (Apr. 4,
2019, B286501) [nonpub. opn.].
2
(a), and the “[o]rder imposing sanctions under Code Civ. Proc.
Sec. 904.1(b).”2
DISCUSSION
We first address Mitchell’s motion to dismiss Dalessandro
from the appeal for lack of standing to challenge a sanctions
order issued only against Levine. We agree Dalessandro lacks
standing to appeal from the sanctions order. (Calhoun v. Vallejo
City Unified School Dist. (1993) 20 Cal.App.4th 39, 42.)
However, this does not render Levine’s appeal ineffective.
(Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 497.) There is no
dispute Levine has standing to appeal the sanctions order and is
properly an appellant in this matter.3 We therefore deny the
motion to dismiss.
2 All further section references are to the Code of Civil
Procedure.
3 We thus question Mitchell’s need to separately file a 12-
page motion to dismiss, which spawned an opposition and a
reply, on an issue that could have succinctly been addressed in
the opening brief, possibly in a footnote. We make this
observation to highlight the intensely litigated nature of this
case, which does not advance the cause for either party. In
addition to the motion to dismiss, Mitchell has filed a motion for
sanctions seeking $12,500 to reimburse this court for the costs of
processing a frivolous appeal and $8,500 to reimburse Mitchell
for defending the appeal. (Cal. Rules of Court, rule 8.276.) The
sanctions motion merely repeats the respondent’s brief
arguments regarding the weaknesses and technical deficiencies of
appellant’s briefs. This has led to a counter request for sanctions
from appellants for filing frivolous motions. We find the parties
are approaching frivolity, but have not yet crossed into that
territory. With that caution, we deny all sanctions requests.
3
We now consider an issue not addressed by the parties, but
which is a prerequisite to jurisdiction. The notice of appeal
indicates Dalessandro appeals from the September 25, 2018 order
denying his motion to compel. While he has standing to
challenge that order, we find it is not an appealable order. There
is currently a split of authority as to whether a postjudgment
discovery order is appealable. (Yolanda’s, Inc. v. Kahl & Goveia
Commercial Real Estate (2017) 11 Cal.App.5th 509, 512
(Yolanda’s, Inc.) [not appealable]; Macaluso v. Superior Court
(2013) 219 Cal.App.4th 1042, 1049 [appealable ]; Fox Johns
Lazar Pekin & Wexler, APC v. Superior Court (2013) 219
Cal.App.4th 1210, 1215 [not appealable].) We agree with the
reasoning of Yolanda’s, Inc.; the order is not appealable.
However, as we observed, Mitchell fails to raise this issue and
Dalessandro does not address it. Considering that, we find it
expedient to briefly address the merits of the issue by treating it
as a petition for writ of mandate. (Yolanda’s, Inc., supra, at p.
513.)
We conclude the trial court did not err in denying the
motion to compel. The trial court found service of the demand to
be ineffective because there was no postage affixed to the
envelope containing it. (§ 684.120, subd. (a) [requiring “postage
paid” when service of postjudgment “writ, notice, order, or other
paper” is by mail]; Lee v. Placer Title Co. (1994) 28 Cal.App.4th
503, 511 [“strict compliance with statutory provisions for service
by mail is required, and improper service will be given no
effect.”].) Mitchell was not required to respond to a demand that
was not served. Appellants make no effort to demonstrate error
resulting from the trial court’s finding and thus have failed to
4
meet their burden on appeal.4 (State Farm Fire & Casualty Co. v.
Pietak (2001) 90 Cal.App.4th 600, 610 (Pietak).)
We next turn to appellants’ challenge to the monetary
sanctions levied against Levine. Appellants first argue section
128.5, subdivision (f), requires any sanctions to be requested by
way of a separate motion that allows Dalessandro a “safe harbor”
of 21 days to withdraw the offending motion. The trial court,
however, expressly issued monetary sanctions for discovery abuse
and section 128.5 has no application to sanctions authorized
under the Discovery Act (§ 2023.010 et seq.).
Undeterred, appellants next contend that if the sanctions
were issued under the Discovery Act, they were improper because
Mitchell’s counsel failed to meet and confer to alert them to the
4 At oral argument, appellants argued, for the first time, that
any deficiencies in serving the demand were “cured” under
section 684.220 by Mitchell’s counsel’s written admission that he
received the demand and by Levine’s own testimony that he
served the demand by mail. “An appellate court is not required
to consider any point made for the first time at oral argument,
and it will be deemed waived.” (Kinney v. Vaccari (1980) 27
Cal.3d 348, 356–357, fn. 6.) In any case, section 684.220 provides
in pertinent part that “[p]roof of service by mail as provided in
Section 684.120 may be made in the manner prescribed in
Section 1013a.” (§ 684.220, subd. (c).) By its terms, section
684.220 merely provides that proofs of service for postjudgment
notices and papers shall conform with those for prejudgment
notices and papers. Section 684.220 does not provide a “cure” for
any deficiencies in service. Indeed, a proof of service only creates
a rebuttable presumption that the service was proper. (Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441–
1442.) Here, the presumption was rebutted by evidence that the
envelope had no postage on it, rendering service improper.
5
deficiencies in the demand in violation of section 2023.010,
subdivision (d), the trial court made no express finding that his
motion to compel was made without substantial justification in
violation of section 2031.300, subdivision (c), and the trial court
did not hold a separate hearing on the sanctions request. We are
not persuaded.
Appellants present no authority that any of these actions
were required of the trial court or Mitchell, and we have found
none. Section 2023.010, subdivision (d), merely provides that
failing to respond to authorized discovery is a misuse of the
discovery process. There is nothing in that section that requires
a party to meet and confer with the opposing party to alert him to
defects in his discovery requests, particularly when they were not
validly served. Likewise, section 2031.300, subdivision (c), does
not require the trial court to make a finding of a lack of
substantial justification to impose discovery sanctions.
Finally, a separate motion is not required, nor is a separate
hearing on discovery sanctions. People ex rel. City of Dana Point
v. Holistic Health (2013) 213 Cal.App.4th 1016, 1030–1031
(Holistic Health), on which appellants rely, is distinguishable.
There, no motion for discovery sanctions was ever made before
the trial court sua sponte imposed dispositive evidentiary
sanctions. Here, the trial court did no such thing. Mitchell
requested monetary sanctions as part of his opposition to the
motion to compel. Further, the parties argued the issue at the
hearing on the motion to compel. Holistic Health is thus
inapplicable. Again, appellants have failed to demonstrate error
resulting from the trial court’s order. (Pietak, supra, 90
Cal.App.4th at p. 610.)
6
Lastly, appellants contend attorney fees are not recoverable
because Mitchell was representing himself at the time of the
hearing on the motion. (Argaman v. Ratan (1999) 73 Cal.App.4th
1173, 1179.) The record, however, discloses that Mitchell was
represented by counsel during part of the proceedings and that he
only sought to recover those attorney fees. Joshua Staub, who
represents Mitchell in this appeal and below, filed Mitchell’s
opposition to the motion to compel. In a declaration, Staub set
forth the fees and costs incurred in filing the opposition. At the
hearing, however, Staub did not represent Mitchell. Instead, he
appeared “to defend [him]self against Mr. Levine’s request for
monetary sanctions against [him].”5 Appellants have provided no
authority for the proposition that Mitchell may not recover
attorney fees he has incurred. Indeed, the authority cited by
appellants is to the contrary. (Argaman, supra, at p. 1181
[discovery sanctions limited to costs and fees actually incurred].)
The trial court did not err in awarding discovery sanctions
representing fees and costs incurred.
5 Alisa Morgenthaler represented Mitchell at the hearing “on
a limited scope basis.” Morgenthaler did not elaborate as to the
scope of her representation of Mitchell. It appears she may have
been retained only to represent him in his judgment debtor’s
examination, which occurred that day. In any case, Mitchell did
not seek to recover any attorney fees for Morgenthaler’s services.
7
DISPOSITION
We deny Dalessandro’s petition challenging the motion to
compel the production of documents. We affirm the imposition of
$3,456.70 in sanctions against Levine. Respondent Mitchell to
recover his costs on appeal.
BIGELOW, P. J.
We concur:
STRATTON, J.
WILEY, J.
8
Filed 1/3/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JAMES DALESSANDRO, B293472
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS138171)
v.
ORDER CERTIFYING
ERIC ALBERT MITCHELL; PUBLICATION
Defendant and Respondent, [No change in the judgment]
PAUL S. LEVINE,
Objector and Appellant.
THE COURT:
The opinion in the above entitled matter was filed on
December 17, 2019, was not certified for publication in the
Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
____________________________________________________________
BIGELOW, P. J. STRATTON, J. WILEY, J.