Schilders v. DeLacey CA1/2

Filed 8/27/20 Schilders v. DeLacey CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ANNEMARIE SCHILDERS,
Plaintiff and Appellant,
A155614
v.
KELLY JOE SHINDELL (San Mateo County Super.
DELACEY, et al., Ct. No. 16CIV02643)
Defendants and
Respondents.
The trial court entered judgment dismissing plaintiff and appellant
AnneMarie Schilders’ legal malpractice suit against defendants Kelly Joe
Shindell DeLacey and Sideman & Bancroft LLP (S&B) (collectively
defendants) after granting defendants’ motion for terminating sanctions,
based on Schilders’ many months of failing to comply with three discovery
orders requiring her to produce documents and a privilege log and to pay
monetary sanctions.1 Schilders appeals, arguing the court erred for multiple
reasons in ordering these sanctions. We find no error and affirm.
Only S&B sought the relevant discovery but the court granted both
1
defendants’ motion for terminating sanctions because it concluded their
interests in the discovery were identical. Schilders does not challenge this
part of the order, so we do not address it further.
1
BACKGROUND
I.
The Underlying Action
In December 2016, Schilders, represented by attorney Ester Adut, filed
an action against DeLacey and S&B (where DeLacey was a partner),
including for legal malpractice, breach of fiduciary duty, and breach of
contract. She alleged defendants had violated her rights in representing her
in a marital dissolution action that had ended in a settlement (underlying
action), in that they failed to protect her rights regarding the division of
community property, child support, spousal support and attorney fees and
costs. She sought unspecified damages in excess of $25,000.
From April 2017 until August 2018, when the court granted
defendants’ motion for terminating sanctions, Schilders and Adut repeatedly
failed for numerous reasons to comply with Schilders’ discovery obligations
regarding two S&B document requests and three related court orders, which
required Schilders to produce sufficient discovery responses, documents and a
privilege log. Their failure continued despite S&B’s repeated efforts to meet
and confer and after the court granted extensions, twice imposed monetary
sanctions and denied Schilders’ motion for relief under Code of Civil
Procedure section 473 regarding one of the requests. Schilders’ and Adut’s
stonewalling efforts are too numerous to mention, but we will describe their
most relevant misuses of the discovery process leading up to the court’s
decision to order terminating sanctions.
II.
S&B’s First Document Request
In April 2017, S&B served its first set of document requests on
Schilders seeking 29 categories of documents (first document request).
2
Among other things, S&B sought all of Schilders’ communications with
defendants; documents regarding the underlying action; communications
related to the underlying action between Schilders and Alfred Lerner, who
purportedly advised and helped in the underlying case; and communications
about the underlying action between Schilders and attorney Adut before Adut
substituted in as counsel for Schilders in the underlying action. S&B
requested that Schilders produce the documents requested within 30 days at
the law offices of its attorney or at “such other mutually convenient location
as may be agreed upon by the parties, and permit inspection, copying and
photographing thereof at said time and place.”
A. S&B’s July 2017 Motion to Compel
In early July 2017, S&B filed a motion to compel regarding this first
document request. S&B contended that Schilders’ responses to 26 categories
were insufficient, including the ones we have mentioned, and that she had
failed to meet and confer with S&B. It moved to compel Schilders to provide
a privilege log for documents withheld on privilege grounds, supplement her
production with responsive documents, and supplement her response to the
first document request by removing meritless objections, and sought
monetary sanctions.
Schilders responded that she was not opposed to filing a privilege log,
needed additional time to supplement her production, had not made meritless
objections and needed more time to respond to S&B’s contentions because of
the “health conditions” of her attorney, Adut.
On August 9, 2017, the trial court granted S&B’s motion to compel
regarding most, but not all, of the 26 categories of document requests and
ordered Schilders to provide further responses, responsive documents and a
privilege log, if applicable, by September 28, 2017 (August 2017 Order),
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giving Schilders additional time because of Adut’s asserted health issues.2
The court denied S&B’s request for monetary sanctions, but advised
Schilders that failure to comply with its order and continued discovery
misuse could result “in the imposition of future sanctions, including
monetary, issue, evidentiary or terminating sanctions.”
Schilders did not comply with the court’s August 2017 Order by
September 28, 2017. Instead, on that date she filed a motion for an extension
of time on the grounds that Adut, despite her best efforts, had been unable to
agree with opposing counsel on a protective order and complete the
remainder of responses, that DeLacey’s spouse was engaging in inappropriate
actions in another case against Adut and that Adut’s health had not
improved. The court denied Schilders’ motion because she did not establish
good cause for it nor explain why S&B’s proposed protective order was
unacceptable.
B. S&B’s & DeLacey’s October 2017 Motion for Sanctions
In October 2017, S&B and DeLacey filed a second motion relating to
S&B’s first document request, this time seeking monetary sanctions for
Schilders’ failure to comply with the court’s August 2017 Order, asserting
that she had not provided further responses, responsive documents, or a
privilege log, and seeking the appointment of a discovery referee. After
conducting a hearing on November 9, 2017, the trial ordered Schilders to pay
$3,590 in monetary sanctions and, in compliance with the August 2017
Order, provide further responses, responsive documents and a privilege log,
but declined to appoint a discovery referee (November 2017 Order). The trial
2 The court ordered Schilders to produce documents responsive to 17 of
the 26 document requests raised by S&B without asserting objections, to
eight requests subject to privileges asserted in a privilege log and to one
request as narrowed by the court.
4
court again signaled that, “[i]f [Schilders] fails to comply with this order
though, [d]efendants may seek further sanctions such as issue, evidentiary,
or terminating sanctions, upon properly noticed motion.” Schilders was given
until December 11, 2017, to comply with the court’s order.
Schilders did not comply with the August 2017 Order or the
November 2017 Order. She does not contest that at the time the trial court
imposed terminating sanctions in August 2018, she had yet to produce
numerous categories of documents in violation of the court’s August 2017
Order and its November 2017 Order. Defendants assert, and Schilders does
not disagree, that prior to the court’s imposition of those sanctions, she did
not produce 10 boxes of documents that were responsive to S&B’s first
document request and the court orders, which included all communications
regarding the underlying action between Schilders and defendants, Schilders
and Lerner, Adut and Lerner; all documents relating to the Underlying
Action; all filings, orders and discovery in the underlying action; and all
appellate court filings or orders in the underlying action.3
Instead, Schilders, through Adut, repeatedly failed to fulfill her
obligations for a variety of reasons too numerous to detail here. Most
significantly, S&B attempted to meet and confer with Adut about her
document production after she contended it was necessary that she have an
agent present at all times with the 10 boxes of documents she purportedly
was willing to produce, including if the documents were copied by an outside
copying service as arranged by S&B. When told the service would not allow
her agent to be present, Adut suggested that S&B could copy the 10 boxes of
documents at a public library copying machine. She also rejected S&B
3 The record indicates that Schilders produced about 1,000 electronic
files and emails, but this production appears to pale in comparison to the 10
boxes of documents she withheld.
5
counsel’s suggestions that the copy service copy the documents at Adut’s
office, and offered to, but did not, scan the documents and produce them in
electronic form (which S&B indicated it did not want).
As for those documents Schilders withheld on the basis of a privilege,
such as her communications with Adut relating to the underlying action prior
to April 11, 2014, Adut provided S&B with a one-page privilege log in
January 2018 listing 22 items, including the amorphous categories of
“emails” and “Notes,” rather than list for those two categories individual
documents with dates, all recipients and a general description of subject
matter, i.e., attorney-client privileged “emails” between Schilders and Adut or
Adut and Lerner. S&B’s counsel promptly informed Adut that she was
required to provide a log with particular descriptions of each document
withheld and asserted that her communications with Lerner were not
privileged. After initially indicating she would provide an amended log, Adut
asserted that she was not required to provide any more particularity about
withheld communications between herself and Schilders, and did not provide
an amended log. Schilders also did not pay the monetary sanctions ordered
by the court in its November 2017 Order.
II.
S&B’s Second Document Request
In June 2017, S&B served its second set of document requests to
Schilders (which contained only one request), in which it sought Schilders’
“cellphone records . . . for any cellphone that [Schilders] used at any time
during the time period of January 1, 2013 to April 10, 2014,” when
defendants were representing Schilders in the underlying action (second
document request). In her unverified response dated August 17, 2017,
Schilders stated that she had “cell phone records for the period from 9/5/13 to
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3/14/14” but would not produce them based on privacy and relevance
objections.
In October 2017, S&B moved to compel Schilders’ production of
documents responsive to this second document request. S&B argued the
phone records were relevant to its defense because Schilders, while
represented by defendants in the underlying action, received advice from
others in the period leading up to the settlement of the case. S&B further
argued that Schilders’ failure to verify her response was tantamount to no
response and a waiver of all her objections, and that in any event her
objections lacked merit.
In her opposition, Schilders stated that Adut had a “medical disability”
and “jurisdictional deadlines”; had been extremely sick; that her phone
records could be obtained from her phone company for $5.00 per statement;
and that her phone records were not relevant, contained private
communications and were unprotected by a protective order. She did not
address S&B’s arguments about the unverified nature of her discovery
response.
The court issued a tentative ruling granting S&B’s motion and adopted
this ruling after Schilders did not contest it, then filed a written order on
December 4, 2017 (December 2017 Order). It ordered Schilders to serve a
verified discovery response without objections and ordered Schilders and
Adut to pay $1,330 in monetary sanctions. Schilders was given until
January 9, 2018 to comply.
In mid-January, Schilders served an “additional response” to S&B’s
second document request in which she stated she would produce all
documents in her possession, custody or control, “other than documents that
the phone company has but [Schilders] does not have and never had and for
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which the court has not yet heard her objections on their merits.” She
contended the court erroneously determined that she waived all her
objections and indicated she would seek to have the order vacated or set
aside. She produced invoices pertaining to her cell phone records and the
$1,330 in sanctions were paid by a third party, apparently on Adut’s behalf.
In late January 2018, Schilders served a verified second additional
response to S&B’s second document request, stating that she would serve a
subpoena on her telephone company. Adut sent S&B’s counsel a proposed
subpoena and information about the cost involved. S&B’s counsel responded
with a revised subpoena, advised that the phone company required Schilders’
cell phone number and authorization (a draft of which counsel provided with
the revised subpoena), and confirmed that S&B would cover the costs
involved. Soon thereafter, Adut indicated that Schilders would not cooperate
in subpoenaing her phone records after all, stating, “I believe that a court
order compelling my client to sign the authorization for a subpoena on her
cellular telephone provider would be erroneous.”
III.
Schilders’ Motion for Relief
On February 8, 2018, Schilders moved under Code of Civil Procedure
section 473 for the trial court to vacate its December 2017 Order based on
Adut’s mistake, inadvertence or excusable neglect for her failing to challenge
the court’s tentative ruling regarding S&B’s second document request,
including because the trial court mistakenly ruled that Schilders had waived
her objections by failing to timely serve a verified response (motion for relief).
Defendants opposed this motion for relief, arguing that Schilders had stated
in her discovery response that she would subpoena her cell phone records and
that Schilders’ motion was an improper change in litigation strategy.
8
On April 13, 2018, after hearing argument, the trial court ruled that it
would adopt its tentative ruling (with a minor change) denying Schilders’
motion for relief. In that ruling, along with concluding that the motion was
defective for lack of a notice of motion, the court found Schilders had had
ample opportunity to object to the trial court’s entry of the December 2017
Order and move for reconsideration of that order, had paid the sanctions
ordered and had met and conferred regarding subpoenaing her phone records
before abruptly changing course. These facts, the court concluded, did not
show excusable conduct but instead showed “a change in . . . litigation
strategy.” The court also “affirmed” and clarified its December 2017 Order.
The court addressed the merits of Schilders’ privacy and relevance objections
to the second document request and concluded they lacked merit. It also held
that, to the extent Schilders sought reconsideration of the December 2017
Order, she was untimely and failed to show any new or different facts,
circumstances or law as required by statute.
The court instructed defendants to submit a written order to the court
denying Schilders’ motion for relief.
IV.
Defendants’ Motion for Terminating Sanctions
On February 23, 2018, defendants moved for terminating sanctions (or,
in the alternative, issue sanctions) based on Schilders’ failure to comply with
the August 2017, November 2017 and December 4, 2017 Orders (motion for
terminating sanctions). They argued Schilders had not complied with these
orders; specifically, that she had failed to produce all responsive documents
and communications, failed to provide a privilege log in compliance with
California law, failed to produce cell phone records and failed to pay all
monetary sanctions. Defendants also sought monetary sanctions.
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Defendants contended they “need[ed] the entirety of [Schilders’]
documents from the Underlying Action because this is a malpractice action
asserting that the settlement of such action was mishandled. Further,
[Schilders] continues to litigate the Underlying Action, has challenged the . . .
Judgment, and has a duty [to] mitigate.” Also, the communications
defendants were seeking related to their “fault of others” affirmative defense
because “[i]n the key time period leading up to, during and following
[Schilders’] settlement of the Underlying Action in November 2013,
[Schilders] was receiving and relying upon advice—legal or otherwise—from
Ms. Adut and Dr. Lerner.” Defendants further maintained that, because
Schilders received legal advice from Adut regarding the underlying action
between May 2013 to April 2014, she was required to produce a privilege log
identifying each of her communications with Adut that she had withheld and
to produce her cell phone records, which were relevant because they could
show the frequency and timing of communications with both Adut and
Lerner.
Schilders opposed the motion (and sought a continuance regarding it),
contending, among other things, that DeLacey was not entitled to sanctions
based on discovery served by S&B; she would have made her documents
available under the supervision of her agent but S&B had insisted on their
copy service taking the documents away; S&B refused to agree that
documents produced in scanned form satisfied the document demand; S&B
was not entitled to a detailed privilege log because it had not moved for one;
sanctions for her actions regarding the phone records would be improper
because of the court’s erroneous conclusion that she had waived all her
objections to their production; she could not be sanctioned for withholding
confidential communications between Lerner and his attorney, meaning
10
Adut; her failure to pay monetary sanctions was not a ground for further
sanctions; and the requested sanctions were otherwise unwarranted.
At the initial hearing on defendants’ motion for terminating sanctions,
after indicating in its tentative ruling that it was inclined to grant the motion
at least regarding S&B, the trial court continued the hearing so the parties
could submit supplemental briefs on whether DeLacey had standing to seek
terminating sanctions. The parties subsequently filed supplemental briefs.
Meanwhile, on June 12, 2018, Adut asked whether S&B would accept
paper or scanned copies of 10 boxes of documents and “agree to a
nondisclosure agreement so that the phone numbers [in the cell phone
records] of anyone but [herself] and Mr. Lerner not be disseminated,” and
argued, once again, that her communications with Lerner were privileged.
Respondents replied that, among other things, the court had already
indicated it would impose terminating sanctions regarding at least S&B, that
Schilders had ignored concrete deadlines and that her latest communication
failed to “address all of the materials that the court has repeatedly ordered
[Schilders] to produce,” thereby demonstrating that, “yet again, . . . [she was]
attempting to re-litigate an issue upon which the court has already ruled.”
At the further hearing on defendants’ motion for terminating sanctions
on July 20, 2018, Adut acknowledged that Schilders had yet to turn over all
the documents requested by S&B’s counsel but said that a couple of weeks
before she had offered to deliver the documents to S&B’s counsel, who had
said it was too late. The court replied, “Well, I can understand why he said
that. It seems the train left the station a long time ago.” The court found
Schilders’ positions regarding the privilege log lacked merit and noted that
Schilders had not acted reasonably, such as by moving for reconsideration of
the court’s order or taking other timely action. The court told Adut, “And you
11
didn’t challenge the order, so you’re, basically, stuck with it. And you’re still
saying, I don’t care about the court order, I’m just not going to comply with it.
[¶] . . .[¶] I mean, that’s just one of many things.”
On August 20, 2018, the trial court entered a written order that denied
Schilders’ motion for relief, consistent with its oral pronouncement at the
conclusion of the April 2018 hearing on that motion. On the same date, it
also issued a written order granting defendants’ motion for terminating
sanctions against Schilders because of her failure to comply with the three
orders the court had issued in August 2017, November 2017 and December
2017. In its order imposing terminating sanctions the court, relying on
provisions of the Code of Civil Procedure that authorize a court to impose
terminating sanctions for a party’s failure to comply with its discovery orders,
found, “[Schilders] and her counsel have shown continued disregard for this
Court’s Orders, despite having been given two prior warnings that
compliance with discovery was necessary in order to avoid more severe
sanctions. Accordingly, terminating sanctions are appropriate. [Schilders’]
Complaint against both Defendants is dismissed with prejudice.”4
The court subsequently entered a judgment of dismissal in favor of
defendants. Schilders timely filed a notice of appeal from the court’s
judgment.
DISCUSSION
Schilders makes a plethora of arguments in challenging the court’s
order imposing terminating sanctions for her failure to comply with her
discovery obligations. Many of Schilders’ arguments are unsupported by the
4 The trial court ruled that DeLacey “has adequately demonstrated
that her discovery interests and interests in the litigation are identical with
[S&B’s], and that she is prejudiced equally by [Schilders’] continued failure to
comply with this Court’s discovery orders.”
12
record or legal argument and utterly fail to show why she was not required to
comply with the court’s three discovery orders, particularly regarding the
court’s December 2017 Order and its later order denying Schilders’ motion for
relief. But at the core of Schilders’ appeal are multiple arguments that the
trial court abused its discretion and violated her due process rights by
ordering terminating sanctions. The court did not err. As we will discuss,
Schilders repeatedly defied the court’s orders over many months despite
repeated warnings, and there was no end in sight to her noncompliance when
the court ordered terminating sanctions. We find no error in the court’s
decision.
I.
Legal Standards
The trial court cited Code of Civil Procedure section 2023.010,
subdivision (g) as a basis for ordering terminating sanctions against
Schilders. Section 2023.010, subdivision (g) defines a misuse of the discovery
process to include, among other things, “[d]isobeying a court order to provide
discovery” and authorizes a range of sanctions for conduct amounting to
“misuse of the discovery process,” including terminating sanctions. The court
also cited Code of Civil Procedure sections 2023.030, subdivision (d),
2031.300, subdivision (c) and 2031.310, subdivision (i), which authorize a
court to impose issue, evidence or terminating sanctions against a party who
fails to obey a court order compelling a response or a further response to a
document request.
“ ‘ “Misuse of the discovery process includes failing to respond or submit
to authorized discovery, providing evasive discovery responses, disobeying a
court order to provide discovery, unsuccessfully making or opposing discovery
motions without substantial justification, and failing to meet and confer in
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good faith to resolve a discovery dispute when required by statute to do so.” ’ ”
(Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1285, italics omitted.) The
court may impose terminating sanctions for misuse “after considering the
totality of the circumstances: conduct of the party to determine if the actions
were willful; the detriment to the propounding party; and the number of
formal and informal attempts to obtain the discovery.” (Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.) “Generally, ‘[a] decision to order
terminating sanctions should not be made lightly. But where a violation is
willful, preceded by a history of abuse, and the evidence shows that less
severe sanctions would not produce compliance with the discovery rules, the
trial court is justified in imposing the ultimate sanction.’ ” (Los Defensores,
Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.)
The trial court has broad discretion in imposing discovery sanctions,
subject to reversal “ ‘only for manifest abuse exceeding the bounds of
reason.’ ” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.) This
includes orders imposing terminating sanctions for discovery noncompliance.
(See Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702 [applying
abuse of discretion standard for appeal of terminating sanctions order].)
Under this abuse of discretion standard, we review the trial court’s
factual determinations under the substantial evidence standard and infer all
findings necessary to support the discovery sanctions. (Reedy v. Bussell,
supra, 148 Cal.App.4th at p. 1292.) We do not evaluate the sufficiency of
opposing evidence; rather, our “ ‘power . . . begins and ends with the
determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the
determination [of the trier of fact].’ ” (Los Defensores, Inc. v. Gomez, supra,
223 Cal.App.4th at pp. 390-391.)
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II.
The Trial Court Did Not Abuse Its Discretion by Issuing Terminating
Sanctions.
A. The Court Did Not Abuse Its Discretion in Ordering
Terminating Sanctions Based on Schilders’ Noncompliance
with Three of Its Orders.
As we have discussed, Schilders does not contest that at the time the
trial court imposed terminating sanctions in August 2018, she had failed to
produce numerous categories of documents in violation of the court’s August
2017 and November 2017 Orders. Nor had she provided a legally sufficient
privilege log for the documents she was withholding on grounds of privilege
or paid the $3,590 in monetary sanctions imposed by the court in its
November 2017 Order. The trial court relied on all of these failures in
ordering terminating sanctions.
Regarding S&B’s second document request and the court’s
December 2017 Order, Schilders did not produce or arrange for production of
her cell phone records for the period from January 1, 2013, to April 10, 2014,
or provide S&B with a legally sufficient privilege log. Despite her verified
response to the second document request in January 2018 stating she would
subpoena her phone company for these records, she failed to do so and failed
to cooperate when S&B sought to subpoena the records.
Rather than comply with the court’s orders, Schilders repeatedly failed
to fulfill her obligations. Schilders fails to explain how she or her attorney
complied with the court’s August 2017 and November 2017 Orders. She
essentially reasserts the same excuses for failing to produce documents that
the trial court considered and rejected, including that she was entitled to
insist that an agent of hers be present with the documents at all times, thus
precluding S&B from sending the documents to be copied. She fails to
explain why she was unable to meet and confer in good faith with S&B to find
15
an acceptable solution or why she never sought a protective order requiring
her agent to be present with the 10 boxes of documents. The record supports
the trial court’s finding that Schilders and Adut had continually disregarded
the court’s orders that they produce documents responsive to most of the
requests contained in the first document request or assert a privilege
regarding the others that had been withheld.
Regarding the privilege log, Schilders listed broad, vaguely described
categories of potentially relevant documents, for such things as her
communications with Adut and Lerner while defendants were representing
her in the underlying action, rather than identifying each withheld document
by the sender and recipients, the general subject matter and the date the
document was sent. This information was plainly required. “ ‘The purpose of
a “privilege log” is to provide a specific factual description of documents in aid
of substantiating a claim of privilege in connection with a request for
document production.’ ” (Best Products, Inc. v. Superior Court (2004)
119 Cal.App.4th 1181, 1188.) “A privilege log must identify with
particularity each document the responding party claims is protected from
disclosure by a privilege and provide sufficient factual information for the
propounding party and court to evaluate whether the claim has merit.”
(Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116,
1130 (Yacht Club), citing Code of Civil Procedure sections 2031.240,
subds. (b) & (c), see also Yacht Club, at p. 1129, fn. 5 [a privilege log that
“fails to provide any description of documents or their contents other than to
state they are e-mails” “is not sufficient to allow a determination whether the
documents are privileged”].) As a result, “a privilege log typically should
provide the identity and capacity of all individuals who authored, sent, or
received each allegedly privileged document, the document’s date, a brief
16
description of the document and its contents or subject matter sufficient to
determine whether the privilege applies, and the precise privilege or
protection asserted.” (Id. at p. 1130.)
Schilders contends she was not required to provide more specific
information, relying on Los Angeles Bd. of Supervisors v. Superior Court
(2016) 2 Cal.5th 282, 298 (Los Angeles). That case is inapposite. It addressed
the information a party was required to provide regarding its attorney’s
billing records. The court also held that the privilege “does not . . . shield
everything in a billing invoice from . . . disclosure” (id. at p. 288) and that
“the contents of an invoice are privileged only if they either communicate
information for the purpose of legal consultation or risk exposing information
that was communicated for such a purpose. This latter category includes any
invoice that reflects work in active and ongoing litigation.” (Id. at p. 300.)
The Los Angeles case was concerned in part with spending information
contained in billing records related to ongoing litigation that could reveal
legal strategy. (Id. at p. 298.) No such information was at issue here.
Schilders does not contend invoices were among the withheld documents,
much less emails from ongoing litigation. Rather, the issue is emails between
Adut and Schilders and Adut and Lerner (a third party) pertaining to prior
litigation that had long since been settled (regardless of any actions Schilders
might since have taken to challenge the result of that case). The Los Angeles
case provides no basis for Schilders’ argument that she was not required to
produce a detailed privilege log identifying each email she claimed was
privileged with sufficient information to evaluate the privilege claim. (See
State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625,
640 [attorney-client privilege does not protect “independent facts related to a
communication,” such as “that a communication took place, and the time,
17
date and participants in the communication”]; Coy v. Superior Court (1962)
58 Cal.2d 210, 219-220 [date on which client met attorney is not privileged
because it “is not a matter ‘communicated’ by the client to his attorney in the
course of the professional relationship, or at all”].) Further, if Schilders had
any legitimate concern about the privilege log revealing privileged
information, she could have sought an appropriate protective order, but she
did not.
Schilders also argues the trial court should have given her an
opportunity to provide a supplemental privilege log, relying on Yacht Club,
supra, 242 Cal.App.4th at page 1130, which held that in the face of an
insufficient privilege log, the trial court should have ordered the party to
provide a supplemental privilege log rather than require production of
documents claimed to be privileged. In relying on the Yacht Club case,
Schilders again misses the boat.
There, the issue was whether a trial court erred in ruling that parties
responding to discovery waived their privilege objections because the
privilege log they provided failed to describe the subject matter or content of
the documents. (Yacht Club, supra, 242 Cal.App.4th at p. 1121.) The
defendants, who were the responding parties, had provided a privilege log
prior to the plaintiff’s filing a motion to compel, but the plaintiff then moved
to compel the defendants to produce the allegedly privileged documents
because the log contained for each document only the date and that it was
between defendants and their counsel. During a meet-and-confer process, the
parties had agreed that defendants would supplement their privilege log to
identify the sender and recipients of each communication, but the agreement
said nothing about describing the content or subject matter of the
communications. (Id. at p. 1122.) The defendants twice amended the log as
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agreed, adding more and more documents to it each time. (Id. at pp. 1122-
1123.) Thereafter, the plaintiff moved to compel production of the documents
listed on the log on the ground that defendants waived the privilege by failing
to provide a log that contained sufficient information to enable the plaintiff to
evaluate the privilege claims. (Id. at p. 1123.) The trial court granted the
motion and ordered the plaintiff to produce the documents and pay sanctions.
(Ibid.)
The court of appeal reversed, holding that the failure to provide a
privilege log or an adequate privilege log is not an authorized basis for
holding the privilege has been waived. (Yacht Club, supra, 242 Cal.App.4th
at p. 1126.) Instead, the court can order the responding party to provide a
further response by serving a privilege log or a supplemental privilege log
that provides adequate information. (Id. at pp. 1127, 1129.) Notably, the
court went on to say, “If the responding party thereafter fails to adequately
comply with the court’s order and provide the information necessary for the
court to rule on the privilege objections, the propounding party may bring
another motion seeking a further response or a motion for sanctions. At that
stage, the sanctions available include evidence, issue, and even terminating
sanctions, in addition to further monetary sanctions.” (Id. at p. 1127.)
In this case, the court did not hold that Schilders waived the privilege
by failing to provide a privilege log in response to S&B’s first document
request. Rather, it imposed a terminating sanction after Schilders had
violated the terms of the court’s August 2017 Order by failing to produce
requested documents and failing to provide any privilege log at all, forcing
S&B to file a second motion to compel, and thereafter continuing to withhold
discovery and provide an adequate privilege log even after a second motion to
compel was granted. Schilders’ ongoing failures to comply with her discovery
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obligations and with two different orders compelling her to comply fully
justified the court in imposing the terminating sanction. Indeed, the Yacht
Club case supports its ruling.
Further, Schilders and Adut knew the court was contemplating
terminating sanctions for their willful noncompliance long before the court
imposed them. The court twice issued monetary sanctions against Schilders
and Adut in the November 2017 Order and the December 2017 Order, and
they failed to pay the larger of these sanctions. In April 2018, the court
orally denied Schilders’ motion for relief, making it eminently clear that
Schilders was required to comply with its three previous orders by producing
documents and a privilege log and paying all of the monetary sanctions
imposed. Yet Schilders continued her willful noncompliance with the court’s
orders for the next four months until the court ordered terminating sanctions.
Thus, by August 2018, sixteen months after they had served their first
document request, S&B and DeLacey had little to show for their efforts, and
Schilders and Adut continued to violate the court’s orders despite repeated
monetary sanctions and warnings from the court that it would consider
imposing terminating sanctions if they continued their noncompliance.
Under these circumstances, the court acted well within its discretion to order
terminating sanctions against Schilders.
Schilders also argues she “substantially complied” with the trial court’s
three discovery orders, relying heavily on her purported willingness to
produce documents that remained in the presence of her agent. Therefore,
she contends, the court’s imposition of terminating sanctions was an abuse of
its discretion. We disagree. The record does not show that she complied,
substantially or otherwise, and Schilders cites no legal authority indicating a
subjective “willingness” to comply without actual compliance satisfies her
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discovery obligations or entitles her a get-out-of-jail-free card. The court
concisely captured the meritless nature of Schilders’ position when it told
Adut 11 months after issuing its August 2017 Order, “[Y]ou didn’t challenge
the order, so you’re, basically, stuck with it. And you’re still saying, I don’t
care about the court order, I’m just not going to comply with it.”
Nor did the court act precipitously when it imposed terminating
sanctions. Despite Schilders’ chronic stonewalling and delays, the trial court
gave her multiple opportunities to comply with its orders. For example, the
court extended the deadline for complying with its August 2017 Order by a
month upon learning of Adut’s medical troubles. It acted patiently
throughout the process, even rescheduling the hearing on defendants’ motion
for terminating sanctions when Adut arrived unannounced at the courthouse
on July 3, 2018, after failing to indicate that she was contesting the court’s
tentative ruling, and giving Adut an additional opportunity to submit late
briefing.
In short, under all of the circumstances, the court here in no way
abused its discretion when it finally ordered terminating sanctions. (See,
e.g., Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 [court
ordered terminating sanctions after the defendant flouted four discovery
orders, remarking that “[i]f a lesser sanction fails to curb misuse, a greater
sanction is warranted: continuing misuses of the discovery process warrant
incrementally harsher sanctions until the sanction is reached that will curb
the abuse”]; Rail Services of America v. State Comp. Ins. Fund (2003)
110 Cal.App.4th 323, 331 [affirming terminating sanctions order where the
plaintiffs’ “refusal to comply with discovery was straightforward and
unambiguous, and it was clear that they would not provide discovery”].)
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We turn now to Schilders’ other arguments for why the court abused its
discretion by ordering terminating sanctions, none of which are persuasive.
B. The Court’s ”Affirmation” of Its December 2017 Order Did
Not Alter the Import of That Order, Which S&B Did Not
Obtain by Fraud.
Schilders argues at great length, and unconvincingly, that S&B
obtained the court’s December 2017 order to produce her cell phone records
by “fraud” and, relatedly, that the court was somehow beyond its jurisdiction
to issue the December 2017 Order. We will not dissect each of Schilders’
“fraud” arguments because she neither shows that any fraud occurred or how
or why it supposedly invalidated the court’s December 2017 Order. Nor will
we respond to her “lack of jurisdiction” argument because of her failure to
support it with a pertinent explanation of any apposite legal authority,
thereby failing to overcome the presumption that the trial court’s order was
correct. (See Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520, 525 [party’s
“sparse legal citations” and questions about the court’s ruling do not “meet
his duty as appellant to affirmatively show the court erred” and “is reason
enough to reject his claim”].)
The only part of her “fraud” argument that is of any significance is her
correct assertion that the trial court erred when it ruled, based on S&B’s
argument, that her failure to provide a verified response to S&B’s second
document request was a waiver of all her objections. Such a response is not a
waiver of objections. (Food 4 Less Supermarkets, Inc. v. Superior Court
(1995) 40 Cal.App.4th 651, 658 [timely objections not waived by the lack of a
verification].) Nonetheless, S&B’s incorrect argument was hardly fraud.
Also, Schilders did not timely move to reconsider the court’s
December 2017 Order or seek a writ in the appellate court to challenge it.
Therefore, she was required to comply with the court’s December 2017 Order,
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regardless of any error. (See Wanke, Industrial, Commercial, Residential,
Inc. v. Keck (2012) 209 Cal.App.4th 1151, 1172 [“a party may not defend
against enforcement of a court order by contending merely that the order is
legally erroneous”]; In re Marriage of Niklas (1989) 211 Cal.App.3d 28, 34-35
(“Because [the party] failed to seek direct review of the discovery order in a
timely manner and instead violated the order, the trial court’s order imposing
sanctions must be upheld even if the discovery order was erroneous”].)
Regardless, in April 2018, the court indicated in its denial of Schilders’
motion for relief that it was affirming its December 2017 Order and,
furthermore, that it had reviewed Schilders’ objections to the second
document request and concluded that they lacked merit. The plain import of
the court’s affirmation was that Schilders still had to produce her cell phone
records pursuant to the December 2017 Order, regardless of whether she had
preserved her objections in her unverified response.
Schilders argues that the trial court’s purportedly sua sponte
affirmation of its December 2017 Order was in excess of its jurisdiction
because she was not given the opportunity to address the court’s
reconsideration of that order before it ruled that her objections lacked merit,
citing Le Francois v. Goel (2005) 35 Cal.4th 1094, 1103. This argument is
specious.
At the April 2018 hearing, the court addressed arguments made by
Schilders in a motion, filed two months after the court issued its
December 2017 Order, for relief from that order on grounds of alleged
“mistake, inadvertence, or excusable neglect.” In that motion, Schilders
argued that the trial court had erred in ruling her response to S&B’s second
document request was untimely for lack of a verification and that she had
therefore waived all objections and that absent that mistake and her
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attorney, Adut’s, failure to object to the tentative ruling, the court would have
ruled differently. With that motion, Schilders filed “objections” to the
tentative ruling and minute order of the trial court in November 2017 and
the resulting December 2017 Order, arguing that they were legally
erroneous. As the court recognized, in so arguing Schilders was effectively
rearguing, i.e., seeking reconsideration of the December 2017 Order, and the
court held that any such motion was untimely. It then stated that it had
nonetheless reviewed the prior order and the briefs in connection with it and,
in essence, found no error. Specifically, the documents S&B sought were
relevant, the objections Schilders had made were meritless, and thus even
assuming the responses had been timely the court would have ordered
Schilders to produce the documents. The trial court’s use of the phrase “sua
sponte” was inapt. Plainly, the trial court was addressing the arguments
Schilders raised in her motion. Nor was Schilders denied the opportunity to
address the merits of her objections. She argued the court would have
decided the motion differently had it not been for the purported mistakes.
That she chose not to argue the merits of her objections to the discovery in
her motion for relief did not preclude the court from addressing the issue she
raised as to how it would have ruled had the timeliness of her responses not
been an issue.
Finally, Schilders argues she did not have an opportunity to comply
with the court’s affirmation of its December 2017 Order because the court did
not issue a formal written order affirming that order until August 2017, at
the same time it ordered terminating sanctions. This argument lacks merit.
Schilders was required to comply with the court’s December 2017 Order once
it was issued in December 2017. Her motion for relief from it, two months
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thereafter, which the court denied,5 did not entitle her to more time to comply
with that order. She had already failed to comply with the order for four
months, not to mention having failed to comply with the August 2017 and
October 2017 Orders.
C. The Court Did Not Abuse Its Discretion by Dismissing the
Entire Complaint Based on Schilders’ Discovery Abuses.
Finally, Schilders argues the trial court’s imposition of terminating
sanctions based on her noncompliance was an abuse of discretion and
deprived her of due process, primarily because her failure to produce
“some . . . documents” regarding her phone communications was only
relevant to S&B’s affirmative defense of contributory negligence regarding
Schilders’ malpractice claim, and was not relevant to her other two causes of
action, for breach of contract and breach of fiduciary duty. We disagree for
three reasons.
First, Schilders misconstrues the court’s order terminating sanctions,
which dismissed all causes of action because Schilders disobeyed three
discovery orders, including two pertaining to documents other than the phone
communications called for in S&B’s first document request.
Second, Schilders concedes that she failed to produce 10 boxes of
documents that were responsive to S&B’s first document request and that the
court’s orders in August 2017 and November 2017 required her to produce.
As S&B points out, it is impossible to determine what documents were
relevant to which of Schilders’ causes of action in the absence of a production,
but it appears from the document requests themselves that the documents
sought very well could have been relevant to defendants’ defenses against all
of Schilders’ causes of action, since they involved matters about the
underlying action, as well as communications involving Schilders regarding
5 The court also denied her request for a stay of the order.
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the underlying action at a time when S&B was representing Schilders in that
action. Regardless, Schilders, as appellant, has the burden of affirmatively
showing error. (Tanguilig v. Valdez, supra, 36 Cal.App.5th at pp. 520, 525.)
She has not done so. Therefore, her argument fails.
Third, Schilders’ argument that an entire case should not be dismissed
because of discovery noncompliance regarding only one of three causes of
action is not the law. A very similar argument was rejected in Siry
Investment, L.P. v. Farkondehpour (2020) 45 Cal.App.5th 1098, petition for
review granted July 8, 2020, S262081. The court explained that “it is
inconsistent with the law governing discovery sanctions. That law grants
trial courts ‘broad’ discretion to consider ‘the totality of the circumstances’ in
making the sanction fit the violation. [Citation.] [The] proffered rule would
trade this flexibility for ossification by converting one factor—namely the
breadth of the issues involved in the discovery—from a relevant circumstance
into a dispositive one. [Citation.] It would also require courts to endure
‘defiant disobedience’ of their orders compelling discovery if those orders
pertained to discovery addressing fewer than all the issues in a case, even
though trial courts are ‘not required to allow . . . abuse to continue ad
infinitum.’ [Citations.] Not surprisingly, courts have rejected [the proffered]
rule.” (Id. at p. 1120; see also id. at p. 1122 [showing prejudice due to
noncompliance not required to obtain terminating sanctions because
“selective lawlessness is still lawlessness”]; Miranda v. 21st Century Ins. Co.
(2004) 117 Cal.App.4th 913, 928-929 [affirming terminating sanctions after
nearly a year of discovery noncompliance regarding element of causation
only].) We follow these courts. Assuming for the sake of argument that
Schilders’ noncompliance only denied defendants discovery relating to a
defense to one of Schilders’ three causes of action, we nonetheless conclude
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the court did not abuse its discretion in imposing terminating sanctions in
light of her sixteen months of continual, willful noncompliance regarding two
document requests and three court orders.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs of appeal.
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STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
Schilders v. Shindell DeLacey (A155614)
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