Filed 7/17/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ZEV WEINSTEIN, B282267
(Los Angeles County
Plaintiff, Super. Ct. No. SC126011)
v.
ISAAC BLUMBERG et al.,
Defendants and
Respondents;
RESCH POLSTER & BERGER
LLP,
Real Party in Interest
and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Nancy L. Newman, Judge. Reversed.
Resch Polster & Berger, Michael C. Baum, Andrew V.
Jablon, and Stacey N. Knox for Real Party in Interest and
Appellant.
Wolf Group L.A., Ellen K. Wolf, and Scott R. Antoine for
Defendants and Respondents.
____________________________
Resch Polster & Berger (RPB) appeals from an order
granting discovery sanctions after a motion to compel further
responses to a deposition notice. Counsel for Isaac Blumberg,
Eytan Ribner, and Blumberg Ribner, Inc. (collectively BRI)
served a notice of motion and motion to compel within a statutory
deadline, but did not serve any of the required supporting papers
upon which the motion was based until 15 court days before the
hearing. RPB contends the motion was untimely and that the
sanctions order should therefore be reversed. We agree.
BACKGROUND
Zev Weinstein (through his counsel, RPB) filed suit against
BRI on June 20, 2016. On June 27, BRI noticed Weinstein’s
deposition and propounded 212 requests for production of
documents to be produced at the deposition. BRI deposed
Weinstein on July 28 and 29, 2016.
Following the deposition, BRI and Weinstein met and
conferred regarding Weinstein’s deposition responses and
responses to BRI’s document requests. As part of their meet and
confer process, the parties agreed that BRI’s deadline to file any
motion to compel regarding Weinstein’s deposition would be
December 6, 2016.
BRI filed its notice of motion and motion to compel and an
accompanying declaration regarding the parties’ meet and confer
process on December 6, 2016. In the motion, BRI included the
following language: “This motion is based upon this notice of
motion and motion, the attached declaration of Evan W.
Granowitz regarding meeting and conferring with Plaintiff’s
counsel regarding this motion, as well as the memorandum of
points and authorities, separate statement, request for judicial
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notice, declaration(s) and other documents and evidence in
support of the motion that will be filed and served as provided in
section 1005(b) of the Code of Civil Procedure, all of the pleadings
and records on file with the court, such documentary evidence
that may be submitted before or at the hearing on this matter,
and the argument of counsel at the hearing on this matter.” The
motion also sought sanctions against Weinstein and his counsel.
On January 19, 2017, Weinstein substituted new counsel
for RPB, who had represented him at his deposition and in the
subsequent meet and confer process. BRI filed its memorandum
of points and authorities, exhibits, separate statement,
declaration, and request for judicial notice in support of its
motion to compel on January 25, 2017. BRI personally served the
documents on Weinstein’s new counsel on January 25, 2017, and
on RPB on January 26, 2017—15 court days before the February
17, 2017 hearing.
RPB opposed BRI’s motion in part on the ground that it
was untimely because the required papers supporting the notice
of motion and motion to compel were not filed and served within
the 60 day deadline for the motion to compel and in part because
BRI had not served RPB with the papers 16 court days before the
noticed hearing. The opposition also addressed the substance of
BRI’s motion. On February 17, 2017, the trial court heard
argument on the timing questions, and later issued an order
finding that the motion to compel “was ‘made’ within 60 days
after the parties deemed the deposition complete” and leaving
open the question of whether RPB was prejudiced by BRI’s
service of the supporting papers 15 court days before the hearing
instead of 16.
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The trial court continued the hearing on the substantive
issues in the motion to compel to March 24, 2017. After the
second hearing, the trial court issued an order sanctioning RPB
$7,200 based on the motion to compel. RPB timely appealed.
DISCUSSION
RPB contends that the motion to compel was untimely
because the papers supporting the motion were not filed and
served until well after the 60-day deadline to file the motion to
compel. Because the motion was untimely, RPB argues, the trial
court lacked jurisdiction to award sanctions based on that
motion. RPB also contends that it was denied due process by
BRI’s failure to serve the supporting documents until 15 court
days before the noticed hearing, in violation of Code of Civil
Procedure section 1005, subdivision (b).1
BRI counters that its motion to compel was timely served
because the Code of Civil Procedure requires only that a notice of
motion and motion be served within the 60-day deadline, not
supporting papers. BRI argues that there are independent
grounds upon which the trial court could have sanctioned RPB,
so even if the motion was untimely, the sanction award should be
affirmed. BRI also contends that its service of the supporting
documents one court day after section 1005’s required 16-days’
notice was not prejudicial.
This case presents questions of statutory interpretation,
which we review de novo. (Unzipped Apparel, LLC v. Bader
(2007) 156 Cal.App.4th 123, 129 (Bader).)
1Statutory references are to the Code of Civil Procedure
unless otherwise specified.
4
BRI’s motion to compel says that it is “made pursuant to
Code of Civil Procedure sections 2025.010, et seq., 2025.480,
2025.450, 2023.040, 2025.290 and the court’s inherent authority.”
Section 2025.480, subdivision (b) provides that any motion to
compel further production regarding a deposition notice or
subpoena “shall be made no later than 60 days after the
completion of the record of the deposition . . . .” A motion is
“made,” according to section 1005.5, “upon the due service and
filing of the notice of motion . . . .” BRI contends, therefore, that
it “made” its motion to compel when it served the notice of motion
on December 6, 2016.
Citing section 1010, RPB argues that more was required.
Section 1010 states: “Notices must be in writing, and the notice
of a motion, other than for a new trial, must state when, and the
grounds upon which it will be made, and the papers, if any, upon
which it is to be based. If any such paper has not previously been
served upon the party to be notified and was not filed by him, a
copy of such paper must accompany the notice.” Because the
papers upon which BRI’s motion to compel was based were not
served until January 26, 2017, RPB contends, the motion was not
“made” within 60 days after completion of the record of
Weinstein’s deposition.
BRI argues that RPB’s construction of section 1010
“conflicts with the clear language of” section 1005, subdivision
(b). That section provides that “[u]nless otherwise ordered or
specifically provided by law, all moving and supporting papers
shall be served and filed at least 16 court days before the
hearing.”
We disagree with BRI; we see no conflict between sections
1005 and 1010 in the context of section 2025.480, subdivision (b).
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Section 2025.480’s requirement that a motion to compel “shall be
made no later than 60 days after the completion of the record of
the deposition” is section 1005’s “otherwise . . . specifically
provided by law,” and neither statute excuses compliance with
section 1010. BRI’s service of a notice of motion and motion
inherently acknowledges the interplay between the two statutes;
no notice of motion and motion would have otherwise been
necessary until 16 days before the February 17, 2017 hearing.
Neither does the plain language of section 1010 allow for BRI’s
interpretation that a notice of motion and motion alluding to
other papers but not attaching them somehow satisfies section
1005.5. (See Alvak Enterprises v. Phillips (1959) 167 Cal.App.2d
69, 74; see also Goddard v. Pollock (1974) 37 Cal.App.3d 137,
142.)
The 60-day deadline was mandatory. (Bader, supra, 156
Cal.App.4th at p. 136.) Serving a notice of motion and motion to
compel on December 6, 2016 without the supporting papers
identified therein rendered the motion untimely.
BRI would have us overlook the untimely service because,
it explains, there are other statutes under which the trial court
could have granted sanctions. “The issue here is not a court order
compelling further responses or document production,” BRI
argues. “The issue here is the court’s authority to sanction [RPB]
for its conduct.”
We acknowledge and agree with BRI’s basic premise
(outside of any context) that a trial court has the power to
sanction discovery abuses independent of a motion to compel.
But BRI’s motion was not independent of a motion to compel.
The statute BRI cites in its brief as authority for this
proposition—section 2023.030—was not cited in its notice of
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motion and motion, and there were no papers accompanying that
notice of motion and motion that invoked section 2023.030.
Moreover, BRI did not comply with the statutes it did cite.
Section 2023.040 requires that the “notice of motion shall be
supported by a memorandum of points and authorities, and
accompanied by a declaration setting forth facts supporting the
amount of any monetary sanction sought.” (Italics added.) BRI
ultimately requested $40,000 in sanctions for its motion to
compel, yet its notice of motion and the declaration accompanying
that notice of motion states no amount, and states no facts
supporting any amount of monetary sanction, but rather merely
details the meet and confer process.
This is no small point. BRI requested $40,000 in sanctions
and did not alert RPB to that amount until 15 court days before
the sanctions hearing. By the time BRI served the papers
supporting its motion to compel, RPB was no longer Weinstein’s
attorney. That the trial court ultimately reduced sanctions to
$7,200 is of no consequence. RPB received no notice of its
exposure until it could take no mitigating action or even
substantively oppose BRI’s motion.
We need not determine whether BRI’s actions were
prejudicial based on service 15 court days (instead of 16 court
days) before the initial hearing on the motion to compel.2
Substantial and obvious prejudice arose in the 51 days between
the time the papers should have been served and when they were
actually served. BRI and Weinstein’s new counsel continued to
2 The trial court did find prejudice on this ground.
“Considering the extensiveness of the motion before the court,”
the trial court explained, “the court is inclined to find some
prejudice based on this procedural defect.”
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meet and confer and to deal with the substance of BRI’s
contentions. RPB was without continued access to the process
and to any means of either developing the record between
Weinstein and BRI, if Weinstein’s arguments were meritorious,
or mitigating any damage RPB and/or Weinstein may have
caused, if BRI’s arguments were meritorious. And RPB was left
with 15 court days to respond to a voluminous motion to which it
otherwise would have had 51 more days to respond under the
circumstances. If prejudice is required on this question, it is
present here.3
Finally, BRI contends that by arguing the motion to compel
on the merits, RPB waived (or forfeited) the argument that the
motion to compel was untimely. “The critical point for
preservation of claims on appeal is that the asserted error must
have been brought to the attention of the trial court.” (Boyle v.
CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649.) RPB
repeatedly brought the asserted error to the trial court’s
attention. “A party’s participation in a hearing after the party’s
objection to the hearing as unauthorized does not constitute
waiver by acquiescence.” (Id. at p. 650.) RPB never acquiesced to
the trial court’s error.
3 Prejudice is not required; discovery deadlines are
mandatory and we have treated them as jurisdictional (Sexton v.
Superior Court (1997) 58 Cal.App.4th 1403, 1410), even though a
trial court may grant relief from deadlines to file motions to
compel. Where a party does not obtain trial court relief from the
statutory deadline, “failure to move for further answers within
the statutory time forecloses further relief . . . .” (O’Brien v.
Superior Court (1965) 233 Cal.App.2d 388, 391.)
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Because we will reverse the trial court’s order based on the
motion’s untimeliness, we need not and do not reach the
remaining constitutional due process question RPB presents.
DISPOSITION
The trial court’s order is reversed. On remand, the trial
court is directed to deny BRI’s motion to compel in its entirety.
RPB is entitled to costs on appeal.
CERTIFIED FOR PUBLICATION.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
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