Filed 5/10/16 Perez v. Buckingham Property Management CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
JESUS PEREZ, C078253
Plaintiff and Appellant, (Super. Ct. No. 69026)
v.
BUCKINGHAM PROPERTY MANAGEMENT,
INC.,
Defendant and Respondent;
MICHAEL COGAN,
Objector and Appellant.
In this employment case, plaintiff Jesus Perez and his trial attorney, Michael
Cogan, appeal from an order imposing $5,769.50 in sanctions on them in connection with
a protective order quashing a deposition subpoena Cogan served on one of the attorneys
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of record for defendant Buckingham Property Management, Inc. (Buckingham).1 Among
other things, Perez and Cogan contend they did not receive adequate notice and
opportunity to be heard on the issue of sanctions.2 We agree and therefore will reverse
the sanctions order.
To address the notice and opportunity to be heard argument, only limited
procedural facts are necessary. Suffice it to say that Perez sued Buckingham for
wrongful discharge and various Labor Code violations. Cogan represented Perez in the
action. One of the attorneys who filed the answer to the complaint on behalf of
Buckingham was Aimee Kircher.
Trial was set to begin on January 20, 2015, and the discovery cutoff date was
December 19, 2014. At a deposition in the matter on October 29, 2014, Cogan served a
deposition subpoena on Kircher with the deposition set for December 3. The two
attorneys exchanged various e-mails regarding the subject in the days that followed.
Then, on November 6, attorney Brian Cuttone notified Cogan that his firm had been
retained as special counsel for Buckingham to handle the deposition subpoena. Cuttone
and Cogan corresponded by e-mail numerous times between November 6 and 13 on the
subject of the subpoena. Cuttone took the position that Cogan needed to show
“ ‘extremely good cause’ ” to depose Kircher and that he had not done so. Accordingly,
on November 13 Cuttone informed Cogan that if he did not withdraw the subpoena by
the following day, Cuttone would file an ex parte application for a protective order or an
order shortening time, to be heard at 1:30 p.m. on November 19. Cuttone did not
mention an intent to seek sanctions. Cogan did not withdraw the subpoena. Accordingly,
1 The order is appealable. (See Code Civ. Proc., § 904.1, subd. (a)(12) [appeal may
be taken from “an order directing payment of monetary sanctions by a party or an
attorney for a party if the amount exceeds five thousand dollars ($5,000)].)
2 Buckingham did not file a respondent’s brief.
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on the afternoon of November 17, Cuttone sent a fax to Cogan confirming that
Buckingham was going forward with its ex parte application for a protective order “and
for an award of sanctions against both” Perez and Cogan.
At 11:00 a.m. on the morning of November 18, Cuttone filed the ex parte
application, which he had signed the day before. In his papers, Cuttone requested
$9,151.50 in attorney fees and costs for Cogan’s “improper and unreasonable conduct,”
but nowhere in his papers did Cuttone identify any specific statutory basis for the request.
At 11:59 a.m. on November 19, Cogan filed a document entitled “PLAINTIFF’[S]
DISCUSSION RE: EX PARTE APPLICATION; DECLARATION OF MICHAEL
COGAN.” Cogan attested that he had asked Cuttone to provide him, by e-mail or fax,
“copies of all pleadings as soon as they are completed and in form for filing,” but he did
not receive a copy of the ex parte papers.
At the hearing on the ex parte application later that afternoon, Cuttone attested that
the ex parte papers were e-mailed to Cogan the day before, “after we received notice
from the Court or from our runner that they had been filed.” He further attested that
when his office received Cogan’s filing before the hearing complaining that he had not
received the ex parte papers, they faxed the papers to him.
The court heard some argument on the matter from both sides, then took a recess
to allow Cogan time to review the ex parte papers. Following the recess, the court heard
further argument. The court then stated that it was going to grant the ex parte application
for a protective order and turned to the issue of sanctions. The court tentatively decided
to impose $5,769.50 in sanctions “because the opposition was not justified,” and Cuttone
submitted the matter. Cogan asked to be heard and, when permitted, asserted that he had
“a right to prepare an opposition before the Court issues sanctions.” After he asserted
twice more that he “ha[d] a right to be heard,” the court replied, “Counsel, quit telling me
you have a right to be heard. I’m listening.” Cogan responded, “I know you are listening
to me, your Honor. When I say I have a right to be heard, I have a due process [right] to
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present my opposition.” The court repeatedly indicated its belief that Cogan had received
his opportunity to be heard, and when Cogan stated once more that he had “not had the
opportunity to submit papers in opposition” to the request for sanctions, the court replied
that Cogan’s comments were “clear” and “on the record,” and he could purchase a
transcript for any “writ [he chose] to take.”
That same day, the court entered a protective order quashing the deposition
subpoena and ordering Perez and Cogan to pay Kircher $5,769.50 in costs and fees as a
sanction. Perez and Cogan timely appealed from that order.
As we have noted, on appeal Perez and Cogan argue (among other things) that
they “were not given reasonable notice or a fair opportunity to a real and reasonable
hearing” on the issue of sanctions. We agree.
“Adequate notice prior to imposition of sanctions is mandated not only by statute,
but also by the due process clauses of both the state and federal Constitutions.” (O’Brien
v. Cseh (1983) 148 Cal.App.3d 957, 961.) As relevant here, under the Civil Discovery
Act,3 monetary sanctions can be imposed against a person who unsuccessfully and
without substantial justification opposes a motion to limit discovery, but only “after
notice to any affected party, person, or attorney, and after opportunity for hearing.”
(Code Civ. Proc., §§ 2023.030, 2023.010, subd. (h).) “Applications for orders may not
be ex parte if a statute or rule requires notice.” (O’Brien, at p. 961.) “Discovery
sanctions may not be ordered ex parte, and an order purporting to do so is void.” (Sole
Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 208.)
Here, it appears there was no mention of Buckingham seeking sanctions against
Perez and Cogan in connection with the request for a protective order until the afternoon
of November 17, when Cuttone stated in his fax to Cogan that Buckingham’s ex parte
3 Code of Civil Procedure section 2016.010 et seq.
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application would include a request for sanctions. No statutory basis for the sanctions
request was identified. The ex parte papers filed the next day contained a request for
sanctions, but again, no statutory basis was identified, and there was evidence that Cogan
did not receive those papers until the day of the hearing on the ex parte application,
November 19. In any event, the earliest Cogan could have received the papers was the
day before, sometime after they were filed at 11:00 a.m. Thus, at most he may have
received barely a 24-hour notice of the sanctions request.
Under these circumstances, we conclude Perez and Cogan were wrongfully denied
both the notice and the opportunity to be heard guaranteed by the Civil Discovery Act
and the due process clauses of the state and federal Constitutions before monetary
sanctions are imposed. Contrary to the trial judge’s belief, the legal mandate of an
opportunity to be heard is not satisfied just because the judge allows counsel to present
oral argument at a hearing on an ex parte application. An attorney and his or her client
are entitled to legally adequate notice of a request for sanctions and a legally adequate
opportunity to present both evidence and argument (written and oral) in response to such
a request. Perez and Cogan were denied both here. Accordingly, the sanctions award
cannot stand.
Of course, because Buckingham asked in the alternative for relief on an ex parte
basis or an order shortening time for notice and a hearing on Buckingham’s request for
relief, our determination that the trial court erred in imposing sanctions without adequate
notice or opportunity to be heard does not preclude the court from imposing such
sanctions provided that: (1) the statutory basis for the proposed sanctions is made clear;
and (2) Perez and Cogan are given legally adequate time to oppose the request.
Accordingly, we will remand the case for further proceedings.
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DISPOSITION
The order for monetary sanctions is reversed, and the case is remanded to the trial
court for further proceedings consistent with this opinion. Perez and Cogan shall recover
their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
/s/
Robie, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Murray, J.
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