Filed 11/8/21 Cordova v. Wilson CA4/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
MARK CORDOVA,
Plaintiff and Respondent, G059091
v. (Super. Ct. No. 30-2018-00984697)
DAVID WILSON, as Trustee, etc., OPINION
Defendant;
FRANCES DIAZ,
Objector and Appellant.
Appeal from order of the Superior Court of Orange County, David L. Belz,
Judge. Affirmed.
Mazur & Mazur and Janice R. Mazur for Objector and Appellant
Connor, Fletcher & Hedenkamp, Matthew J. Fletcher, Douglas A.
Hedenkamp, Michael Sapira; NM Law and Noelle R. Minto for Plaintiff and Respondent.
Appellant Frances Diaz appeals from discovery sanctions entered against
her by the trial court upon the recommendation of a discovery referee after she failed to
appear for a scheduled deposition and to produce certain documents. Appellant contends
the trial court adopted the discovery referee’s recommendation without reviewing her
objections. However, while the trial court’s order does not expressly indicate the trial
court reviewed appellant’s objections, the material contained in the objections is
substantively identical to the material contained in appellant’s opposition to plaintiff
Mark Cordova’s discovery motion, which the trial court expressly stated it reviewed.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Appellant is an attorney who was involved with estate planning issues
relating to a dispute between the beneficiaries of the Cordova Trust. That dispute
resulted in a lawsuit, in which plaintiff sought to depose appellant and compel production
of documents. In February 2019, plaintiff served appellant with a subpoena requiring
testimony and documents. By this time, a discovery referee had been appointed in the
case. The referee set appellant’s deposition for May 7, 2019. Appellant appeared, but
only testified for a few hours, after which she said she was too ill to continue. The
referee continued the deposition to May 28, 2019, and reminded appellant, who had
produced no documents, of her obligation to comply with the document production
portion of the subpoena. The referee also wrote to appellant to remind her of this
obligation.
For the May 28, 2019 session of the deposition, plaintiff arranged for a
limousine to drive appellant to and from her mother’s home, to prevent the drive to the
deposition from causing appellant anxiety and exacerbating her medical issues. On May
28, appellant brought her mother with her to the deposition and, after a few hours of
testimony, again claimed she had to leave, this time to take her mother home. Appellant
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again produced no documents. The referee ordered appellant to cooperate with the
parties in setting a new date for her deposition, and to provide the documents requested in
the subpoena, along with a privilege log.
Appellant neither worked with the parties to set a new deposition date nor
produced documents. Instead, on June 10, 2019, appellant wrote to the parties and the
referee, stating she had scheduled a doctor’s appointment. On June 20, appellant
forwarded to the referee a letter from her doctor, indicating she had “significant memory
problem, slow response and some speech difficulty,” and that she “is unable to perform
trial work.” The referee then ordered the parties to meet and confer with appellant to
agree upon a date for her continued deposition. The referee also again wrote to appellant
to remind her of her obligation to comply with the document production portion of the
subpoena, and noted that nothing in her doctor’s note suggested an inability to search for
documents.
On July 23, 2019, appellant produced an additional doctor’s note, from a
different doctor. This doctor’s note indicated appellant “has limited ability to recall
recent events and becomes confused easily with episodes of slowing of thought and
stuttering,” and “should be restricted from trial duty and any trial related work or
processing including depositions.” The referee concluded that this note was
insufficiently specific to bar further deposition testimony, or to prevent appellant from
searching for and producing documents in response to the subpoena. The referee set
August 20, 2019 as the “fallback date” for appellant’s continued deposition, should the
parties not be able to agree to a date, and ordered appellant to produce responsive
documents and a privilege log by August 12, 2019.
In response to the order, appellant offered to have her doctor speak to the
referee and to the parties to discuss the issue. After this suggestion was rebuffed,
appellant produced a new medical report, indicating she was “incapable of handling any
litigation, or document research for any depositions.” The referee ordered the deposition
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to go forward anyway, citing the vagueness of the doctor’s notes, the lack of any apparent
threat to appellant’s health, and appellant’s ongoing practice of law, which continued
despite her medical condition. The referee also concluded the reference in the latest
doctor’s note to “document research for any depositions” was the result of manipulation
by appellant. Appellant indicated she would not appear.
On August 19, 2019, the day before the continued deposition, appellant
went to the emergency room, complaining of a severe headache. Appellant underwent
various scans and the emergency room doctor issued appellant a note placing her “off
work” through September 9, 2019. On the same day, appellant filed a motion for
protective order in the superior court. In support of that motion, appellant submitted a
note from another new doctor, recommending that she not undergo a deposition.
On August 20, 2019, appellant, as she had advised the parties and referee,
failed to appear for her scheduled deposition. The referee and attorneys for the parties
did appear, and the referee noted for the record that he “didn’t believe” appellant’s
representations about her health at the time of her initial deposition session, but ordered
that the deposition be continued out of “an abundance of caution.”
The trial court denied appellant’s motion for a protective order, directing
the parties to submit their discovery disputes to the discovery referee. Appellant then
sought to invoke Code of Civil Procedure section 170.6 to disqualify the discovery
referee. This request was also denied as untimely.
Plaintiff moved for discovery sanctions against appellant. In addition to
describing the events, plaintiff produced a declaration by a private investigator who had
surveilled appellant on the days following her initial May 7 deposition session and
surrounding her scheduled August 20 deposition session. The private investigator
reported observing appellant engaging in normal everyday activities: driving around Los
Angeles; walking her dog; visiting the bank and a café; carrying groceries, and moving
her trash cans.
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Plaintiff’s motion for discovery sanctions sought $92,940 in sanctions
against appellant, $10,000 of which plaintiff sought against appellant’s counsel.
Appellant opposed the motion, arguing she had not violated any court orders and had
timely filed a motion for protective order before the August 20, 2019 deposition session.
Appellant also argued plaintiff’s sanctions motion included unrecoverable costs and
failed to state a basis for sanctions against her attorneys.
While the sanctions motion was pending, appellant was deposed on two
consecutive days, with the accommodation that only two hours of testimony were given
on each day. Appellant also produced a large number of documents before these
deposition sessions. The discovery referee noted that he did not perceive appellant to be
suffering from any “medical or physical stress” at these subsequent deposition sessions.
After these depositions concluded, the discovery referee submitted a report
and recommendations to the court concerning plaintiff’s discovery motion. The referee
recommended an award of discovery sanctions against appellant in the amount of
$35,173, and separately recommended the court set an order to show cause regarding
contempt. The referee’s based these recommendations on a finding that appellant had
“feigned or, if not, seriously exaggerated” her symptoms at her initial deposition session,
and had thereafter engaged in “[g]amesmanship” and “intentional disobedience” of the
referee’s orders.
After the trial court received the referee’s report, it ordered plaintiff to
lodge the underlying motion and supporting documents with the court. Appellant also
filed objections to the recommendations with the trial court. The trial court subsequently
ruled on the recommendations, describing the procedural history of the dispute, and
indicating it had reviewed the materials, reciting the list of documents plaintiff lodged in
response to the court’s order. The court adopted the referee’s recommendation as to
sanctions, awarding $35,173 to plaintiff and against appellant. The court declined to
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sanction appellant’s attorneys or to issue an order to show cause regarding contempt.
Appellant timely appealed.
DISCUSSION
Appellant argues the trial court abused its discretion by failing to consider
appellant’s objections to the discovery referee’s report and recommendations, and
because appellant was substantially justified in not appearing for the August 20, 2019
deposition session. We review orders imposing discovery sanctions for abuse of
discretion. (Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020)
56 Cal.App.5th 771, 789.)
1. The Trial Court Considered All Arguments Raised in Appellant’s Objections
The trial court’s ruling on the discovery sanctions against appellant listed
the materials it had requested and reviewed. Appellant’s objections to the discovery
referee’s report are not on that list, and the trial court’s order does not refer to those
objections. From this omission, appellant concludes the trial court failed to consider her
objections, and argues the order must be reversed.
The trial court’s ruling does create an ambiguity as to whether the trial
court reviewed appellant’s objections. However, even if the trial court did not review the
document, substantially all of the relevant evidence and arguments contained in the
objections were contained in appellant’s opposition to plaintiff’s motion for sanctions and
the supporting evidence, which the trial court expressly stated it reviewed. The few items
of evidence and argument that are not duplicative of appellant’s opposition papers are
insufficient to meet appellant’s burden of demonstrating that “‘it is reasonably probable
that a result more favorable to [appellant] would have been reached in the absence of the
error.’” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) Absent prejudicial
error, we must affirm. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1107-1108.)
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Appellant’s objections contain three principal arguments, each with several
sub-arguments. The first argument, that appellant did not engage in sanctionable
conduct, is based entirely on evidence contained in the documents reviewed by the trial
court, and is duplicative of arguments contained in appellant’s opposition to the
discovery motion. It contains extensive citations back to the opposition and raises no
new facts or evidence.
The second argument, that the sanctions are excessive and unsupported by
fact or law, is also entirely duplicative of arguments made by appellant in her opposition.
Appellant’s objections challenge line items for inefficiencies plaintiff’s counsel suffered
preparing for multiple depositions, plaintiff’s travel costs, the cost of a private
investigator, the cost of the discovery referee’s appearance at the deposition, the cost of
the videographer’s appearance at the deposition, and costs arising from appellant’s failure
to produce documents as ordered. Appellant’s opposition challenges these same line
items, for precisely the same reasons.
The third argument, that the report contains certain “factual errors,”
addresses several different points, but all are either irrelevant or duplicative of issues
discussed in the opposition. Appellant first disputes her submission to the jurisdiction of
the discovery referee. This item is irrelevant because it is undisputed that the trial court
had jurisdiction to issue an award of sanctions against appellant. Next, appellant raises
two points relating to the underlying facts of the dispute. Again, these issues are not
relevant to the discovery sanctions from which appellant appeals.
Appellant challenges the referee’s statement that appellant “feigned or, if
not, seriously exaggerated a panic attack wherein she was gasping for air and physically
shaking” at her first deposition. Appellant’s argument is based on the same evidence
submitted with her opposition, and is duplicative of the statement of facts in her
opposition. Appellant challenges the referee’s statement that appellant “was ‘compelled
to leave’ due to some unusual situation involving her mother that discovery referee then
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did and now still does not understand,” arguing she had been promised that the deposition
would end by 4:00 p.m., and that the referee terminated the session due to plaintiff’s
counsel’s aggressive questioning. Appellant made this same argument in her opposition.
Appellant challenges the referee’s statement that appellant “did nothing to
cooperate in setting a new deposition date.” Appellant points to her doctor’s visits.
These doctor’s visits are discussed at length in material submitted with appellant’s
opposition, and in any event, do not constitute cooperation in setting a deposition date.
Appellant challenges the referee’s statement that appellant “ostensibly checked herself
into a hospital for observation, and subsequently caused three medical professionals to
provide declarations to discovery referee.” Appellant argues she went to the emergency
room, rather than checking herself into the hospital and provided work status reports from
healthcare professionals, not declarations. The factual distinctions proffered by appellant
on this point are minimal; appellant fails to explain how they might be significant.
Finally, appellant challenges the referee’s statement that appellant
“manipulate[d] these medical professionals to say ‘the right things’ that would excuse her
from having to re-appear.” Appellant argues the referee lacked “foundation” to reach this
conclusion—in other words, that the original evidence was insufficient to support this
finding. That evidence is the same as that reviewed by the trial court. The only item of
new evidence on this point is appellant’s denial of this fact in her declaration, which was
submitted along with the objections. This bare denial, unsupported by any corroborating
evidence, does not by itself create a reasonable probability of a different result.
2. The Trial Court Did Not Abuse Its Discretion
Appellant also contends the trial court abused its discretion by failing to
find substantial justification for appellant’s failure to appear at her August 20, 2019
deposition. Appellant argues she filed a motion for protective order prior to that date and
was therefore justified in failing to appear. However, a motion for protective order does
not immunize the moving party from discovery sanctions. In fact, the opposite is true: if
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a motion for protective order is made unsuccessfully, discovery sanctions against the
moving party are mandatory absent substantial justification. (Code Civ. Proc.,
§ 2025.420, subd. (h).)
Appellant also argues she was concerned, based on the advice of her
doctors, that her health would be adversely impacted by the deposition. The discovery
referee concluded this was not substantial justification, based upon the referee’s
observations of the appellant and the lack of any information in appellant’s doctors’ notes
suggesting the possibility of specific future harm to appellant. The trial court appears to
have agreed, and substantial evidence supports this determination of fact.
As to her failure to produce documents, appellant argues the scope of
attorney-client privilege as applied to those documents was uncertain because a writ
petition on that issue was pending before this court at the time. However, no stay or
protective order had issued, either from the trial court or this court. Appellant cites no
authority for the proposition that a pending writ petition excuses a deponent’s obligation
to produce documents or immunizes the deponent from discovery sanctions.
Finally, appellant contends she was substantially justified in not appearing
at the deposition because she was not subject to the jurisdiction of the discovery referee.
While it is true that the discovery referee’s authority over nonparties is limited to reports
and recommendations to the trial court, the sanctions order challenged by appellant was
issued by the trial court. Moreover, while appellant argues the discovery referee did not
have authority to order her to appear, and that she therefore did not disobey a valid order,
disobedience of a court order is not a prerequisite to monetary discovery sanctions.
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DISPOSITION
The order is affirmed. Respondent shall recover his costs on this appeal.
ZELON, J.*
WE CONCUR:
MOORE, ACTING P. J.
GOETHALS, J.
*Retired Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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