Marriage of Smith CA4/2

Filed 9/18/14 Marriage of Smith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of KIERSTIN and
MARK LEE SMITH,
____________________________________ E056872

KIERSTIN SMITH, (Super.Ct.No. SBFSS58771)

Appellant, OPINION

v.

MARK LEE SMITH et al.,

Respondents.

APPEAL from the Superior Court of San Bernardino County. Tara Reilly, Judge.

Affirmed in part; reversed in part.

Amanda Marie Francuz and Judith Elaine Hoover; Graves & King and Dennis J.

Mahoney, for Appellant.

Holstein, Taylor and Unitt, and Brian C. Unitt, for Respondent Cindy Smith.

No appearance for Respondent Mark Smith.

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 This appeal arises from a discovery dispute in ongoing litigation following the

2002 dissolution of the marriage of appellant Kierstin Smith (Kierstin) and respondent

Mark Lee Smith (Mark). The trial court awarded monetary sanctions in the amount of

$35,809 payable by Kierstin to real party in interest and respondent Cindy Smith (Cindy),

who is Mark’s current wife. This sum consists of $3,309 in “actual attorney fees,” as

well as a further $32,500 as “sanctions for disseminating discovery to a third party in

violation of the court[’]s order . . . .” (Capitalization omitted.)

For the reasons stated below, we affirm in part and reverse in part the trial court’s

sanctions order.

I. FACTS AND PROCEDURAL BACKGROUND

The marriage of Mark and Kierstin was dissolved in 2002, but they remain

engaged in litigation regarding child support. As relevant to the present appeal, Kierstin

has alleged that Mark is hiding assets in various businesses owned by Cindy, including

RE Property Investors, Inc., which was joined as a party to the action in June 2009.

Thereafter, Kierstin propounded a set of document requests on RE Property Investors,

Inc., disputes arose, and a motion to compel further production of documents followed.

On August 2, 2010, the trial court granted Kierstin’s motion to compel, but denied any

award of sanctions or attorney fees. The court’s order—memorialized in a minute order

issued by the court and later a notice of ruling prepared by Kierstin’s counsel—specifies

that any documents RE Property Investors, Inc. produces to Kierstin are to be viewed by

Kierstin, her counsel, and her investigators only, and that neither the documents

themselves, nor the information therein may be provided to any third parties; the order

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further includes the proviso that the documents are not to leave counsel’s office, with the

sole exception that the documents may be provided to the court in a confidential

envelope.1

RE Property Investors, Inc., was dismissed without prejudice from the action on

October 21, 2010.

On May 7, 2012, Cindy2 moved for sanctions against Kierstin, Kierstin’s attorney,

Amanda Francuz, and Kierstin’s father, Robert Hemborg, for violations of the court’s

August 2, 2010, order. The motion asserted, among other things, that documents

protected by the August 2 order were among documents produced by Mr. Hemborg in

response to a subpoena issued on behalf of Print Source, Inc., another of Cindy’s

companies that Kierstin had sought to join as a party. Under the terms of the August 2

order, Robert Hemborg is a third party who should not have had access to the documents.

The motion sought a total of $70,011.84 in sanctions: $3,309 in attorney fees and costs

incurred in bringing the motion for sanctions, $41,702.84 in other attorney fees and costs

incurred by Cindy and her companies relating to Kierstin’s allegations regarding Mark

using Cindy’s companies to hide assets, and an additional $25,000 in sanctions “for

1 The notice of ruling prepared by Kierstin’s counsel somewhat broadens the
categories of people permitted to view the documents from the description of the court’s
minute order: it adds “[Kierstin’s] investigators” to the list of authorized viewers. The
trial court acknowledges on the record, however, that the notice of ruling accurately
reflects its order.

2 The notice of motion indicates that the motion for sanctions is brought by Cindy
alone. As discussed below in more detail, however, Cindy requested sanctions for the
benefit of both herself and her company, Print Source, Inc., and the court and the parties
treated the motion as if it were brought by both Cindy and Print Source, Inc.

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abusing, disseminating, interfering and obstructing the production” of Cindy’s

documents. The motion also sought what it characterized as “terminating sanctions,”

requesting that both Cindy and Print Source, Inc. be dismissed as joined parties.3

Kierstin, Mr. Hemborg, and Ms. Francuz filed a joint response to the motion that,

among other things, denied any violation of the court’s order regarding RE Property

Investors, Inc.’s documents, and sought attorney fees and sanctions against Cindy and her

attorney.

The court, after a hearing, granted in part and denied in part the motion for

sanctions. To the extent the motion was brought by Print Source, Inc, it was denied. The

court also denied the motion as brought by Cindy with respect to Mr. Hemborg and

Ms. Francuz, and awarded them each attorney fees, payable by Cindy and Print Source,

Inc., as sanctions for bringing the unsuccessful motion. But it granted Cindy’s motion

with respect to Kierstin, finding that Kierstin had provided documents to Mr. Hemborg in

violation of the court’s August 2, 2010, order. The court awarded Cindy a portion of the

total amount of monetary sanctions she had requested, ordering Kierstin to pay Cindy

$3,309 in fees and costs incurred in bringing the motion for sanctions, and an additional

$32,500 as “sanctions” for “[a]busing the receipt of discovery by disseminating it to third

3 At the time the motion was filed, neither Cindy nor Print Source, Inc. had yet
been joined as parties, though a motion to that effect was apparently pending. On the
same date as the hearing on the motion for sanctions, the court discussed with the parties
their agreement to a stipulation joining Cindy and Print Source, Inc. The record before us
does not reveal whether such a stipulation was ever actually filed.

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parties in violation of the Protective Order.” The court denied Cindy’s request for

“[t]erminating [s]anction[s].”

In this appeal, only the award of monetary sanctions, payable by Kierstin to Cindy,

is at issue.

II. DISCUSSION

A. Standard of Review

The legal basis for the sanctions imposed by the trial court is a matter of dispute in

this case: as noted, Cindy’s motion was brought, on its face, pursuant to the Civil

Discovery Act (Code Civ. Proc., § 2016.010 et seq.) but that does not appear from the

record to be the basis on which the court ruled. Regardless, however, we review the

court’s order for abuse of discretion. (See County of Los Angeles v. Superior Court

(2005) 130 Cal.App.4th 1099, 1104) [discovery orders reviewed for abuse of discretion];

People v. Ward (2009) 173 Cal.App.4th 1518, 1527 [order imposing monetary sanctions

under Code Civ. Proc., § 177.5 reviewed for abuse of discretion]; Parker v. Harbert

(2012) 212 Cal.App.4th 1172, 1177 (Harbert) [award of attorney fees and costs under

Fam. Code, § 271 reviewed for abuse of discretion].)

We review the trial court’s ruling, not its reasoning. (See Cahill v. San Diego Gas

& Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill) [“[I]f a judgment is correct on

any theory, the appellate court will affirm it regardless of the trial court’s reasoning.”].)

Under the abuse of discretion standard of review, “there is no abuse of discretion

requiring reversal if there exists a reasonable or fairly debatable justification under the

law for the trial court’s decision or, alternatively stated, if that decision falls within the

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permissible range of options set by the applicable legal criteria. [Citations.]” (Id. at p.

957.) Additionally, “‘[a] judgment or order of a lower court is presumed to be correct on

appeal, and all intendments and presumptions are indulged in favor of its correctness.

[Citations.]’ [Citation.]” (In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 829

[Fourth Dist., Div. Two].) The appealing party has the burden to affirmatively show

error. (Phillips, Spallas & Angstadt, LLP v. Fotouhi (2011) 197 Cal.App.4th 1132,

1138.)

B. Analysis

As noted, the court awarded Cindy $3,309 in attorney fees and costs incurred in

bringing her motion for sanctions, and an additional $32,500 as a sanction for violation of

the court’s order regarding maintaining the confidentiality of RE Property Investors, Inc.

documents. For the reasons stated below, only the first of these two sums was within the

permissible range of options set by the applicable legal criteria, so we reverse the court’s

sanctions order with respect to the second amount.

The Civil Discovery Act permits the trial court to “impose a monetary sanction

ordering that one engaging in the misuse of the discovery process . . . pay the reasonable

expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

(Code Civ. Proc., § 2023.030, subd. (a).) Violation of a court order concerning discovery

is a misuse of the discovery process in the meaning of the Civil Discovery Act. (See,

e.g., Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183-

1184.) It is well established, however, that discovery sanctions exist “not to provide a

weapon for punishment for past violations or penalty for past conduct but to secure

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compliance with orders of the court. [Citations.]” (Welgoss v. End (1967) 252

Cal.App.2d 982, 992 (Welgoss).)

Here, the court found that Cindy’s reasonable expenses incurred as a result of

Kierstin’s failure to comply with the court’s August 2, 2010, discovery order—namely,

the costs of bringing the motion with respect to that violation—amount to $3,309. The

additional $32,500 award is unrelated to any of Cindy’s reasonable or even actual

expenses, but rather was imposed as a “sanction”—that is, as a punishment. As noted,

punishment is not an appropriate justification for an award of discovery sanctions.

Cindy suggests that the $32,500 is justifiable not as a punishment, but rather as a

portion of her actual and reasonable expenses incurred with respect to protecting RE

Property Investors, Inc. documents—the $41,702.84 in attorney fees and costs incurred

by Cindy and her companies in conducting discovery in the action other than those

expenses specifically related to the motion for sanctions. But the court did not find that

Kierstin’s discovery activities regarding Cindy’s companies constituted a misuse of the

discovery process in their entirety—to the contrary, the court reaffirmed that such

discovery generally was appropriate. The only misuse of the discovery process found by

the court was the improper dissemination of documents produced under the protection of

the court’s order regarding confidentiality. Since the $32,500 represents not a reasonable

expense anyone incurred as a result of misuse of discovery, but rather a punishment for

violation of the court’s discovery order, it is not justifiable under the Civil Discovery Act.

(See Welgoss, supra, 252 Cal.App.2d at p. 992.)

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 Kierstin contends that not even the $3,309 award was justifiable under the Civil

Discovery Act. She complains that the court’s August 2, 2010, order protects RE

Property Investors, Inc. documents, so Cindy is the wrong party to bring a motion

alleging violation of that order: even though Cindy claimed to be the owner, a

corporation is a separate legal entity from its owners. Nevertheless, the trial court at least

implicitly determined that Cindy’s interest in RE Property Investors, Inc. was such that

she personally was injured by a breach of confidentiality regarding RE Property

Investors, Inc., documents. There is nothing in the record before us that would require

the trial court to reach a contrary conclusion, and indeed it appears that Cindy was the

sole owner of the corporation, at least as of August 2010.4 Thus, Kierstin has not

affirmatively shown that the trial court’s finding that Cindy properly sought relief in her

individual capacity for violation of the August 2 order was in error.

Kierstin further contends that there is no evidence in the record that she in fact

breached the court’s order regarding confidentiality of RE Property Investors, Inc.

documents. Although the evidence is not overwhelming, we are not persuaded that the

court abused its discretion in this regard. The trial court relied on “circumstantial

evidence” that Mr. Hemborg could not have gained possession of RE Property Investors,

Inc., documents other than through Kierstin, and concluded that he did possess such

documents. The court apparently accepted Cindy’s argument that such documents—

4 Thus, Kierstin’s argument on reply that Cindy was “situated exactly as Print
Source, Inc., was situated” is incorrect: there is no indication that Print Source, Inc. had
any ownership interest in RE Property Investors, Inc.

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including RE Property Investors, Inc., quarterly minutes—were among those produced by

Mr. Hemborg in response to a Print Source, Inc. subpoena. Kierstin questions whether

the exhibits submitted by Cindy in support of that argument in fact include any

documents from the production by RE Property Investors, Inc. But we see no reason why

the trial court was required to agree with Kierstin on that point, or to accept

Mr. Hemborg’s declaration that he had “never sought nor requested others to seek

anything other than public records and that he never knowingly received or disseminated

any document that was not a matter of public record.”5

In short, the Civil Discovery Act provides an appropriate justification for the

court’s award of $3,309 in attorney fees and costs to Cindy, but not its further award of

$32,500 in sanctions. We now turn to the question of whether any other source of

authority provides an appropriate justification for the latter award. We answer the

question in the negative.

It is settled law that inherent authority of California trial courts does not include

the power to impose monetary sanctions payable to an opposing party or counsel, no

matter whether they are denominated “‘attorney fees’ or merely ‘sanctions.’” (Yarnell &

Associates v. Superior Court (1980) 106 Cal.App.3d 918, 923.) Rather, the power to

5 We frankly do not follow why a document that has markings “resembling a date
and a ‘Bates’ serial number” added to it should be considered less likely to have come
from a production than a document that does not, as Kierstin suggests. In any case,
however, and regardless of any added markings, Kierstin has not proposed any plausible
means by which Mr. Hemborg could have acquired possession of RE Property Investors,
Inc. quarterly minutes from a source other than the production protected by the court’s
August 2, 2010, order.

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impose such sanctions must be authorized by statute. (Ibid.) In addition to the Civil

Discovery Act, Cindy has proposed Family Code section 271 as an alternative source of

such statutory authority. Family Code section 271 authorizes shifting of attorney fees

and costs of family law litigants based on “the extent to which the conduct of each party

or attorney furthers or frustrates the policy of the law to promote settlement of litigation

and, where possible, to reduce the cost of litigation by encouraging cooperation between

the parties and attorneys.” (Fam. Code, § 271, subd. (a); see also Harbert, supra, 212

Cal.App.4th at pp. 1176-1177 [discussing § 271].) An award of fees pursuant to section

271 is “in the nature of a sanction.” (Fam. Code, § 271, subd. (a).)

The trial court’s award of “sanctions,” however, did not comply with the notice

requirements of Family Code section 271: nothing in notice of motion or motion papers

gave notice that sanctions pursuant to that statute were being requested, nor is there any

indication in our record that the possibility of sanctions pursuant to that statute was raised

prior to the filing of Cindy’s brief on appeal. (See Fam. Code, § 271, subd. (b); In re

Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1529 [discussing notice

requirement].) And at least arguably, the court did not limit its award of fees and costs to

amounts “payable only from the property or income of the party against whom the

sanction is imposed” or the “sanctioned party’s share of the community property,” as

required by section 271. (Fam. Code, § 271, subd. (c).) The court appears to have

expected Kierstin to pay the sanctions from financial assistance regularly received from

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her father.6 For these reasons, among others, the court’s award of $32,500 in “sanctions”

payable to Cindy is not justifiable under Family Code section 271.7

Other potential sources of statutory authority are also inapplicable here. For

example, the broad sanctioning authority granted by Code of Civil Procedure section

128.5 is generally limited to actions filed on or before December 31, 1994, with the

exception of awards of attorney fees and costs in connection with anti-SLAPP motions.

(Code Civ. Proc., § 128.5, subd. (b)(1); Chitsazzadeh v. Kramer & Kaslow (2011) 199

Cal.App.4th 676, 683.) Code of Civil Procedure section 128.7 addresses specific conduct

relating to papers submitted to the court, not violations of discovery orders. (See Code

Civ. Proc., § 128.7, subds. (b), (c).) Code of Civil Procedure section 177.5 allows

imposition of monetary sanctions “not to exceed fifteen hundred dollars ($1,500) . . .

payable to the court . . . .” Here, the court ordered payment of $32,500 to Cindy. (See

Code Civ. Proc., § 177.5.)

In short, the award of $32,500 in sanctions does not fall within the permissible

range of options available to the court. (See Cahill, supra, 194 Cal.App.4th at p. 957.)

As such, the court abused its discretion, and that portion of the court’s order must be

reversed.

6We need not, and do not, decide here whether such assistance would constitute
“income” in the meaning of Family Code section 271.

7 Our finding here is without prejudice to the court’s consideration of any
properly noticed motion pursuant to Family Code section 271 that may later be filed in
the action.

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 III. DISPOSITION

The order appealed from is affirmed with respect to the award of $3,309 in

attorney fees and costs to Cindy, but reversed with respect to the further award of

$32,500 to Cindy as sanctions for violating a court order. The parties shall bear their own

costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST
Acting P. J.
We concur:

RICHLI
J.

MILLER
J.

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