City of L.A. v. PricewaterhouseCoopers, LLC

Filed 10/20/22
See concurring and dissenting opinion
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CITY OF LOS ANGELES, B310118

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC574690)
v.

PRICEWATERHOUSECOOPERS,
LLC,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los
Angeles County, Elihu M. Berle, Judge. Reversed and remanded.
Office of the City Attorney, Michael N. Feuer, Kathleen A.
Kenealy, Joseph A. Brajevich; Browne George Ross O’Brien
Annaguey & Ellis, Ellis George Cipollone O’Brien Annaguey,
Eric M. George, Guy C. Nicholson and Kathryn L. McCann for
Plaintiff and Appellant.
Gibson, Dunn & Crutcher, Casey J. McCracken, Daniel J.
Thomasch, Lauren J. Elliot and Joseph M. Ortega for Defendant
and Respondent.
_________________________________
 A defendant in a civil lawsuit filed a motion for sanctions
under Code of Civil Procedure sections 2023.010 and 2023.030 of
the Civil Discovery Act (Discovery Act; § 2016.010 et seq.) nine
months after the case was dismissed with prejudice, seeking
monetary sanctions for egregious misuse of the discovery process
while the litigation was pending. 1 The trial court awarded $2.5
million in sanctions. On appeal from the postjudgment order, in
response to a letter from this court inviting additional briefing
pursuant to Government Code section 68081, the sanctioned
party contends the Discovery Act does not authorize the trial
court to award monetary sanctions under section 2023.030 alone
or together with section 2023.010.
We hold that monetary discovery sanctions may be imposed
under section 2023.030 only to the extent authorized by another
provision of the Discovery Act. Section 2023.010 describes
conduct that is a misuse of the discovery process, but does not
authorize the imposition of sanctions. The plain language of the
statutory scheme does not provide for monetary sanctions to be
imposed based solely on the definitional provisions of sections
2023.010 or 2023.030, whether construed separately or together.
We conclude that the sanctioned party met its burden on appeal
to show error, because the award of monetary sanctions was not
authorized by the statutes cited.
The trial court was authorized by other provisions of the
Discovery Act, however, to impose some amount of monetary
sanctions in connection with rulings in favor of the defendant on
discovery motions during the litigation. We cannot evaluate on
this record whether the sanctions awarded may have been an

1All further statutory references are to the Code of Civil
Procedure unless otherwise specified.

2
appropriate exercise of the trial court’s discretion under other
discovery provisions because the defendant presented its costs in
the motion below based on the general categories of misconduct
described in section 2023.010, rather than on the defendant’s
reasonable expenses incurred as a result of sanctionable conduct
under discovery provisions other than sections 2023.010 and
2023.030. Because the question of the court’s authority to award
sanctions under sections 2023.010 and 2023.030 was not squarely
raised in the trial court, and no prior case law held that the
statutory language of section 2023.030 requires monetary
sanctions to be authorized by another provision of the Discovery
Act, the order in this case must be reversed and remanded to
allow the defendant to present the issue of sanctions to the trial
court for determination under the correct law.
The sanctioned party has raised two additional contentions
on appeal that must be addressed. First, the sanctioned party
asserts that the trial court had no jurisdiction to rule on a motion
for monetary sanctions under the Discovery Act after the case
was dismissed with prejudice. We hold that when the court is
authorized under a provision of the Discovery Act to impose
monetary sanctions, the court retains jurisdiction after the
lawsuit is dismissed to rule on the issue of discovery sanctions as
a collateral matter. Second, the sanctioned party contends that
the motion for sanctions was untimely. We hold that the
timeliness of a motion for monetary sanctions following a
successful discovery motion is a matter within the trial court’s
discretion, and no abuse of the court’s discretion has been shown.
We reverse the postjudgment order awarding sanctions and
remand for a new determination on the issue of discovery
sanctions.

3
 FACTUAL AND PROCEDURAL BACKGROUND

Billing Errors

In 2010, plaintiff and appellant City of Los Angeles entered
into a contract with defendant and respondent
PricewaterhouseCoopers, LLC (PWC) to modernize the billing
system for the Los Angeles Department of Water and Power
(LADWP). Using new billing software introduced in 2013, the
City failed to accurately bill a significant portion of its customers.
LADWP customers began filing lawsuits against the City over
billing disputes.
On March 6, 2015, the City’s special counsel Paul Paradis,
Gina Tufaro, and Paul Kiesel, along with the City’s attorneys
Michael Feuer, Thomas Peters, Joseph Brajevich, Richard Tom,
and Eskel Solomon, filed the instant action against several
defendants, including PWC. The City alleged PWC fraudulently
induced the City to enter into the contract for the billing system
and breached the contract.
On April 1, 2015, Ohio attorney Jack Landskroner, on
behalf of plaintiff Antwon Jones, filed a class action lawsuit
against the City based on the billing errors (the class action).
Without filing an answer, the City entered into mediation in the
class action in June 2015. The parties to the class action entered
into a preliminary settlement agreement on August 7, 2015. The
trial court judge in this case presided over both the class action
and the City’s civil case.

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Discovery Begins

On December 21, 2015, PWC served requests for production
of documents related to remediation of the billing system and the
alleged damages. “Remediation” included identifying the
overcharges, issuing refunds to customers, and correcting the
defects in the billing system. The City served responses, refusing
to provide documents for a majority of the requests. On June 8,
2016, PWC served a second set of requests seeking documents
concerning remediation, to which the City served responses.
After informal conferences, the parties reached a discovery
agreement. The City served a privilege log on January 20, 2017,
that identified more than 19,000 documents as privileged.
Approximately 1,200 of the documents were listed as protected by
the attorney-client privilege, but did not show an attorney as the
sender or recipient. Approximately 17,000 of the documents were
listed as protected attorney work product, but did not show an
attorney as the sender or recipient, and the documents did not
appear to disclose the mental impressions of an attorney. Most of
the documents were described as investigation at the direction of
counsel concerning remediation.
One of the documents listed as protected attorney work
product was described as an initial complaint for a lawsuit
entitled Jones v. PWC, dated January 24, 2015, with a cover
letter from attorney Eskel Solomon in the city attorney’s office to
several LADWP employees and attorneys.

5
PWC Motion to Compel Granted in Part and Denied in
Part

On February 3, 2017, PWC filed a motion to compel the
documents withheld by the City as privileged that were not
authored by an attorney, written to an attorney, and did not
appear to disclose the mental impressions of an attorney. At a
March 6, 2017 hearing on the motion, PWC suggested there was
no true adversity of interest in the class action proceedings.
Rather than seeking to minimize damages, the City’s intent had
been to identify and refund all of the overcharges, which would
become part of the City’s accounting of damages. PWC argued
that documents were not privileged simply because an attorney
had instructed LADWP employees to perform the work or
because the documents were sent to an attorney. PWC also
argued that the privilege was waived by showing the documents
to third party consultants and opposing counsel. The common
interest privilege did not apply, because a party does not have a
common interest with its litigation adversary. In response, the
City’s special counsel Paradis argued strenuously that all of the
documents constituted attorney work product.
The court granted PWC’s motion to compel in part and
denied it in part. The court ordered production of the documents
withheld based on attorney work product, because the work of
programmers, computer technicians, and other third parties
involved in remediation was predominately related to a business
purpose and not privileged under the work product doctrine.
The court denied the motion to compel as to the documents
withheld on the basis of attorney-client privilege, but ordered the
City to revise the privilege log entries to be specific enough to

6
allow the court to meaningfully analyze whether the documents
were in fact privileged. If the City created a timely revised log,
PWC could file a motion to compel any remaining documents
which PWC believed were not privileged, in accordance with the
discovery statutes. A written order entered on April 4, 2017,
reflected the court’s ruling.
In April 2017, the City produced a revised privilege log
with 1,547 entries. In May 2017, PWC served a third set of
requests for production seeking all documents transmitted
between LADWP and Jones’s counsel before August 7, 2015. The
City responded that the only responsive document was a
comprehensive settlement demand from Jones protected by the
settlement privilege or other privileges. The City asserted that
no documents were sent by LADWP to Jones’s counsel before
August 7, 2015.
On July 20, 2017, the class action settlement was approved
and entered as the final judgment. The class action judgment
included payment of all remediation costs, as well as a total
payment of $19,000,000 in attorney fees, including $15,200,000 to
the attorneys for Jones and two other plaintiffs.
The City provided another revised privilege log with just
1,058 entries on September 29, 2017. Some of the documents
that the City listed on the original log as privileged under the
work product doctrine were reclassified and listed on the revised
log as subject to attorney-client privilege, including the Jones v.
PWC draft complaint. The description of the draft complaint
stated it was created by counsel and contained “legal advice and
work product concerning the claims asserted in this action.” The
revised log listed the comprehensive settlement demand received
from Jones as protected by settlement/mediation privilege. The

7
City concluded some of the documents had been listed on the
original log in error, because they were not responsive to the
discovery request, so the City did not produce them.

PWC’s Second Motion to Compel Continued in Pertinent
Part

On November 3, 2017, PWC filed a second motion to compel
production of documents withheld as privileged. PWC sought the
Jones v. PWC draft complaint, the settlement demand,
documents concerning ordinary business functions related to
remediation, and 131 documents listed on the original privilege
log that were not produced or included on the revised log.
In opposition, the City explained it had produced most of
the documents at issue in the motion, including the settlement
demand. The City argued that the draft complaint was protected
by the attorney-client privilege and as attorney work product. In
a declaration in support of the opposition, Paradis explained
LADWP had requested preparation of a draft complaint alleging
claims that could be brought by an LADWP ratepayer against
PWC to understand this avenue of recovery. Ultimately, the City
decided to pursue claims against PWC directly through the
instant action, rather than indirectly, and no further action was
taken on the legal theories proposed in the draft complaint.
On December 4, 2017, the trial court heard PWC’s second
motion to compel production of documents. One hundred fifty-
five documents remained in dispute. The trial court granted the
motion as to the 131 documents originally logged as privileged,
but subsequently reclassified as nonresponsive after the City had
lost its objection.

8
 The remaining 24 documents were ones for which the City
changed the basis of the privilege claim. Half of them continued
to be designated as attorney work product, but the subject matter
was changed to a topic other than remediation. For the other 12
documents, the City changed the privilege claim from attorney
work product to attorney-client privilege, including the Jones v.
PWC draft complaint.
In response to questioning by the court, Paradis stated that
he created the draft complaint on behalf of the City. The court
asked who he represented in that case. Paradis responded, “We
represented the City, Your Honor.” He explained that the City
had requested its counsel prepare two different draft complaints:
a direct complaint by the City against PWC and a complaint by
Jones against PWC. Paradis stated that Jones’s name was
selected as the plaintiff’s name on the complaint out of several
people who complained to the City, and the draft was never
provided to anyone other than the City.
PWC noted that Jones’s attorney Landskroner submitted a
fee petition in the class action showing that he was working as
Jones’s counsel in December 2014 when the draft pleading was
prepared. At the time, Landskroner and Paradis were cocounsel
in a different class action case.
The trial court was troubled that the facts were not clear
and concluded that more facts were necessary to rule on
discovery of the draft complaint. With the court’s approval, PWC
agreed to take the deposition of the person most qualified (also
referred to as the PMQ) to testify about the circumstances
surrounding the creation of the Jones v. PWC draft complaint.
The court concluded the motion to compel under discussion
was effectively an extension of the prior motion to compel in

9
which the court ordered many of the documents produced, but
had allowed the City to create a new privilege log to justify its
objections that would provide for meaningful review by the court.
The court did not rule on the portion of the motion concerning the
Jones v. PWC draft complaint, taking that portion of the motion
off calendar to be rescheduled after additional discovery
established the foundation for the creation of the document. As
to the remaining 23 documents, the court concluded that the City
should have raised attorney-client privilege initially, but the
reclassification of the documents complied with the overall spirit
of the previous court order. The court ordered some of the
documents produced, denied the motion as to some of the
documents, and ordered the privilege log revised as to other
documents. The court entered a written order on January 11,
2018, reflecting the ruling made on December 4, 2017.

PWC’s Motion to Compel PMQ Deposition Denied as Moot

In April 2018, PWC served a deposition notice for the
person most qualified to testify regarding the Jones v. PWC
complaint. The notice identified seven topics for testimony and
sought production of several documents. The City filed a motion
to quash the deposition notice for the PMQ. In May 2018, PWC
filed a motion to compel compliance with the court’s order to
produce the person most qualified to testify about the Jones v.
PWC draft complaint and to strike the City’s motion to quash.
Several discovery motions were heard in June 2018,
including the motion to compel compliance with the court’s
deposition order. PWC’s counsel Daniel Thomasch noted that
PWC had brought several successful motions to compel discovery

10
without seeking sanctions. He expressed frustration, however,
that the City was obstructing even the most legitimate discovery
requests, court orders were not being abided, and everything
required a motion to compel. In connection with a different
discovery motion, therefore, PWC sought monetary sanctions of
$46,161. The trial court found PWC’s request for monetary
sanctions in that matter was warranted, but awarded a reduced
amount of $7,500. The court cautioned the parties to respond
fully to discovery requests without sophistry or feigned ignorance
as to what the request was seeking.
With respect to PWC’s motion to compel compliance with
the court’s order and to strike the City’s motion to quash, the
court stated that it had already ordered the deposition to go
forward. The court denied the motion to compel compliance as
moot. Paradis said he would withdraw the City’s motion to
quash, although he considered the deposition notice to be
overbroad.
At a hearing in August 2018, the trial court considered two
motions for monetary sanctions filed by a PWC partner, who was
an individual defendant in the case, brought in connection with
successful discovery motions against the City and a third party. 2
The court denied the sanctions motions without prejudice, but
stated the parties could make a further request for sanctions at a
later date if violations of the Discovery Act continued, noting that
the court would evaluate the sanctions issue based upon the
conduct of the entire discovery process in the case.

2 The PWC partner and the third party are not parties on
appeal.

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PWC’s Motion to Compel PMQ Deposition Granted, Motion
for Sanctions of $15,000 Denied Without Prejudice

After a series of scheduling delays, on September 13, 2018,
Chief Assistant City Attorney Thomas Peters appeared for
deposition as the person most qualified to testify concerning the
Jones v. PWC draft complaint. Peters produced no documents,
although the City had not objected to the requests listed in the
deposition notice. Peters admitted that he did not conduct any
investigation or review any documents in preparation for the
deposition. He had not seen the draft complaint in more than
three years, did not review the entries in the privilege log, and
did not look for documents responsive to the request attached to
the deposition notice. Paradis instructed Peters, on the basis of
privilege, not to answer questions about the decision to identify
Jones as the plaintiff on the draft complaint. Peters testified that
the draft complaint was a “thought experiment” to see whether
ratepayers could get compensation directly from PWC and never
intended to be filed. He also stated that he did not know who
Jones’s counsel was in January 2015 when the draft complaint
was prepared. When PWC asked about the City’s knowledge of
the professional relationship between Paradis and Landskroner,
Paradis suspended the deposition and stated that the City would
seek a protective order. Several weeks later, the City filed a
motion for a protective order with respect to the PMQ deposition,
arguing that Peters had provided all the testimony necessary to
resolve the privilege issues.
On November 2, 2018, PWC filed a motion to compel the
PMQ deposition and for monetary sanctions of $15,000. PWC
asserted that the City produced a witness who was completely

12
unprepared to testify as the PMQ, in violation of section
2025.230. The witness had conducted no investigation and
reviewed no relevant documents in preparation for the
deposition. As a result, the witness was unable to answer
questions directly within the scope of the topics identified in the
deposition notice. The City had also asserted privilege objections
to foundational questions. Sanctions of $15,000 would cover a
portion of PWC’s cost of preparing the motion and taking the
September 2018 deposition.
A hearing was held on December 5, 2018, on PWC’s motion
to compel the deposition and for sanctions. 3 When the trial court
asked how the draft complaint came into existence, attorney
Kiesel responded, “It was an evaluation that we were asked to do
by the City Attorney’s Office.” The trial court found Peters
deliberately chose not to review the relevant documents prior to
his deposition so that he would not be able to answer questions
about them. Peters had refused to answer questions that were
not privileged, such as whether Peters or the City knew whether
Jones was represented by counsel. The court expressed concern
that the City ended the deposition when PWC asked about the
City’s knowledge of the relationship between Paradis and
Landskroner.
The court was inclined to grant the motion to compel the
deposition. The court added, “I’m going to defer any issue of
sanctions until we conclude this issue to determine all the facts
and circumstances with regard to the matters in dispute. So the
motion for sanctions is denied without prejudice to bringing it

3The reporter’s transcript states Wednesday, December 6,
2018, but the parties agree that the date was Wednesday,
December 5, 2018.

13
back after we get the final information with regard to this
particular issue on privilege asserted concerning the Jones [v.]
PWC complaint.” The court continued the matter to
December 12, 2018, however, to encompass the hearing scheduled
on the City’s motion for a protective order.
At the hearing on December 12, 2018, in connection with
the motion for a protective order and the motion to compel the
PMQ deposition, the trial court considered each of the document
requests in the PMQ deposition notice. The notice requested a
copy of the caption, signature, and service pages of the Jones v.
PWC draft complaint. The court explained that these portions of
the draft complaint were not attorney work product, because they
did not include attorney impressions, conclusions, opinions, or
legal research. Attorney Tufaro stated that the City was not
going to produce the caption, signature, and service pages of the
draft complaint.
The deposition notice requested production of all written
agreements or understandings between LADWP and Antwon
Jones and/or Jones’s counsel prior to April 1, 2015. The court
asked whether there was a relationship between Jones and the
City. Tufaro said she had been instructed to assert a privilege
and refused to answer. She suggested there were potential
mediation privileges, although she admitted that she was not
aware of case law supporting a mediation privilege for an
agreement between adversaries.
The court moved to the third request for production, which
sought all documents transmitted to LADWP prior to April 1,
2015, by Jones, his counsel, or otherwise on behalf of Jones
individually or his putative class. The City stated it was not
going to produce responsive documents based on objections of

14
overbreadth, attorney work product, mediation privilege, and
potentially attorney-client privilege. The court noted, “I’m going
to go through the rest of it, but I think counsel better think this
through because perhaps we should reopen the settlement
agreement in the class action. [¶] It appears to me from what
you’re telling me, there may not be an adversary relationship.”
PWC noted the requests sought documents from before the date
that the class action was filed, while the parties were
adversaries.
In the PMQ deposition, PWC had asked why Jones was
selected as the named plaintiff for the draft complaint, when
Jones was not represented by the City, to which the City raised a
privilege objection. The court asked, “Does the City take the
position that Mr. Jones was at some time represented by the City
Attorney’s Office? Or counsel for the City?” Tufaro responded,
“No, Your Honor.” The court continued, “At no time was Mr.
Jones represented by counsel for the City; is that right?” Tufaro
again responded, “No, Your Honor. No.” PWC noted that
Paradis received a lucrative contract for his law firm to serve as
the administrator overseeing remediation. The City’s position
was that the PMQ deposition of Peters satisfied the court’s order.
Attorney Kiesel later attempted to clarify the City’s
relationship to Jones. He stated that the city attorney’s office
never had any relationship with Jones. When Jones was
considering filing an action against PWC, he retained the
attorneys who currently represent the City as special counsel.
The City’s special counsel had a relationship with Jones that was
not adverse to the City until Jones wanted to pursue an action
against the City, at which point a conflict arose and the
relationship between Jones and special counsel ended.

15
 PWC’s counsel objected, “Your Honor, I just want to note
that we have been laboring through the four years of this case
under the assumption that special counsel for the City of Los
Angeles is subsumed within the definition of the City. [¶] And
the notion that the City didn’t do something, or the City didn’t
know something, but special counsel did, is one that, frankly,
stuns me and means I have to go back and sort of look through
the last four years of statements and communications because
that is a distinction without a difference. [¶] The special counsel
is special counsel to the City of Los Angeles. And they should not
be able to separate themselves out from LADWP or the City [any
more] than someone in the City Attorney’s Office could do.”
The court denied the City’s motion for a protective order,
granted PWC’s motion to compel production of the documents
requested, and overruled the City’s objections on the basis of
privilege. The court ordered that Peters, or an alternate witness
who was the most knowledgeable, appear to answer the
questions. The questions generally asked for information about
the documents, the process and how the complaint was drafted.
The City was entitled to continue to assert attorney-client
privilege as to the contents of the draft complaint. The court
described a detailed procedure for PWC to set forth the questions
to be asked and the City to determine whether there was a
continued objection.
PWC lodged a proposed order listing the questions for the
PMQ deposition. The City sought multiple extensions of time to
file objections to the proposed order, culminating in an ex parte
application for a third extension, which the trial court denied.
On January 17, 2019, the City objected to PWC’s proposed order

16
and asserted a “common interest privilege” with respect to the
deposition notice.
The City filed a request for permission to dismiss their
contract claims against PWC, which the trial court granted,
leaving the City’s fraudulent inducement claims pending against
PWC.
At a hearing on a different matter on January 23, 2019,
PWC mentioned the parties’ disputes over the questions
appropriate for the PMQ witness and the documents that PWC
wanted as part of that deposition. Paradis argued that prior to
March 2015, the City and Jones had a common interest related to
damages from the defective billing system. The court emphasized
that no common interest was disclosed to the court. Paradis
represented that the common interest privilege existed based on
the relationship between the City and Jones, which was not
adverse before the filing of the class action.
PWC argued that the period of time during which Jones
had been represented by Paradis was not privileged information.
Paradis said his client had directed him to refuse to allow the
PMQ witness to answer whether Jones was represented by
Paradis. When the court inquired who the client was, Paradis
answered that the client was the City. Paradis stated that Peters
directed him to assert privileges in the PMQ deposition to the
question of who Paradis represented based on the attorney-client
privilege, the attorney work product doctrine, and the common
interest doctrine.
The court directed attorney Kiesel to find out whether the
City had an internal affairs ethics department, identify the
person in charge of investigating ethics issues for the City, and

17
discuss whether it would be appropriate for the City to undertake
an internal investigation into what happened.
The court instructed the parties to go forward with the
depositions planned and warned that the remedies of sanctions
and contempt were available if the City continued to assert
inappropriate objections. The court set a trial date of January 6,
2020, and final status conference for December 6, 2019.
On January 24, 2019, the trial court entered a written
order reflecting the court’s December 2018 rulings. The court
concluded the City’s objections to document requests and
deposition topics had been waived. The court ordered production
of a number of categories of documents, and authorized the
depositions of Jones and Landskroner as well.

Draft Complaint Produced

On February 12, 2019, the City provided PWC with a copy
of the caption and signature pages of the Jones v. PWC draft
complaint, which listed Paradis, Tufaro, and Kiesel as the
attorneys for Jones in January 2015.
PWC took Jones’s deposition on February 13, 2019. Jones
explained that he retained Paradis in December 2014, after
submitting an online complaint to Paradis’s website. He was
considering filing a lawsuit against the City from the very
beginning, and he believed Paradis was acting as his attorney
throughout the class action. Paradis sent a copy of the Jones v.
PWC draft complaint to Jones approximately two weeks before he
sent a substantially identical version to the City.
On February 21, 2019, the trial court ordered the parties to
brief several issues, including the applicability of the attorney-

18
client privilege, the work product privilege, and the crime-fraud
exception, and whether the failure to disclose alleged conflicts in
representation of adverse parties constituted fraud on the court.
On February 26, 2019, PWC took the deposition of Chief
Deputy City Attorney James Clark, substituted by the City for
Peters as the person most qualified to testify about the Jones v.
PWC draft complaint. Clark prepared for the deposition and
interviewed other attorneys, but he threw away his notes. Clark
and many of the witnesses were aware before April 1, 2015, that
Paradis had an attorney-client relationship with Jones. Clark
also personally reviewed the Jones v. PWC draft complaint at
that time. Initially, the City had considered entering into tolling
agreements in the other lawsuits pending against the City, but
the attorneys for the other plaintiffs refused to toll their claims
against the City. Clark was also aware that Paradis recruited
Landskroner to represent Jones. Weeks after Clark’s deposition,
however, Clark provided a list of 54 corrections making material
changes to his testimony.
At a status conference on March 4, 2019, PWC argued the
significance of the draft complaint was the unethical alliance
revealed between counsel for Jones and the City prior to filing
the class action. Landskroner was introduced to Jones on
March 26, 2015, six days before the complaint was filed. PWC
believed the settlement was effectively prearranged before the
lawsuit was filed. Attorney Thomasch argued that the court,
PWC, and the public had been misled by the collusive scheme,
and as a result, PWC should be entitled to discovery of all
matters related to the class action, the settlement agreement,
and the settlement implementation. The City responded that it
was no longer asserting attorney-client, work-product, or

19
mediation privileges as to the draft complaint, but was not
waiving those privileges as to all communications about the class
action.
The court asked Landskroner whether he paid a referral
fee to Paradis. Landskroner’s attorney advised him to assert his
privilege against self-incrimination as to all questions about fee
payments and his disclosures to the court.
The trial court restrained the City from paying any further
sums to Paradis or Landskroner. The court set an order to show
cause with regard to appointment of a special auditor regarding
all sums previously paid to Landskroner, Paradis, or any
company in which they had an interest in connection with the
class action lawsuit, including the remediation effort.
On March 5, 2019, Landskroner appeared for his deposition
and asserted his Fifth Amendment right against self-
incrimination in response to substantive questions. On March 6,
2019, Paradis, Tufaro, and Kiesel withdrew as special counsel to
the City. The City substituted in attorney Eric George and the
law firm of Browne George Ross LLP as new counsel for the City.
On March 11, 2019, the City provided the full Jones v. PWC
draft complaint to PWC.

PWC Announces Intent to Seek Sanctions

During a status conference on March 19, 2019, PWC’s
counsel reported that PWC had depositions set in April for
members of the city attorney’s office and employees of LADWP,
including Peters in his individual capacity, LADWP General
Manager David Wright, LADWP Attorney Richard Tom,
Assistant City Attorney Eskel Solomon, and Deputy City

20
Attorney Deborah Dorny. PWC intended to depose Clark again
about the corrections to his deposition, as well as depose LADWP
attorneys Maribeth Annaguey and Angela Agrusa, and three
former LADWP employees who received copies of the draft
complaint in January 2015. PWC intended to show that the
City’s special counsel met regularly with members of the city
attorney’s office and were not rogue actors.
Attorney Thomasch announced that PWC intended to make
one or more motions, including a motion for case terminating
sanctions, based on the substantive conduct of the collusive
settlement and on the discovery conduct from 2017 to the present
to prevent PWC from learning the truth about the settlement.
Thomasch intended to file the motion by July 15, 2019, but the
filing date depended on PWC’s ability to obtain substantive
answers.
The City noted that it had not suggested special counsel
were rogue actors, and PWC was also not an independent
investigator. The City believed it still had four well-documented
claims for fraudulent inducement.
PWC served a fifth set of requests for production. In April
2019, PWC took the deposition of Paradis, who invoked his
privilege against compelled self-incrimination under the federal
Constitution (U.S. Const., 5th Amend., cl. 3) as to all substantive
questions. PWC also took a further deposition of Clark, who
recanted additional testimony.
In April 2019, the City produced several documents
responsive to prior discovery requests. The City also produced a
file titled “emails responsive to PMQ” that Kiesel had provided
Peters months earlier, as well as a draft of a tolling agreement.

21
 Over a period of five months, PWC served deposition
notices for 18 percipient witnesses. In addition to the depositions
above, PWC served deposition notices for Kiesel, Tufaro,
Brajevich, Feuer, former class liaison attorney Michael Libman,
LADWP employee Sharon Grove, and retired LADWP employees
Matt Lampe and Timothy Spinn. LADWP General Manager
Wright asserted his Fifth Amendment right against self-
incrimination to the substantive questions posed to him.
The City objected to Kiesel’s production of one document
during his deposition on the ground of mediation privilege. The
document was an email dated August 21, 2015, which was sent
by Annaguey to other attorneys at the city attorney’s office.
At a hearing on June 3, 2019, the court urged the City to
complete document production in response to PWC’s prior
requests by June 21, 2019. The trial court appointed Edward
Robbins to serve as a special master to assist the court in
determining the full extent of any violations with respect to the
class action and the current lawsuit.
The City raised several privilege objections during
Annaguey’s deposition on June 5, 2019, and the parties agreed to
continue her deposition. The City provided responses and
objections to PWC’s sixth set of requests for production. On
June 28, 2019, PWC served a notice for the deposition of former
LADWP Chief Information Officer Mark Townsend, which was
ultimately scheduled for dates in October 2019.

22
Two Motions to Compel Documents Granted Over
Mediation Privilege and Crime-fraud Objections

On July 2, 2019, PWC filed a motion to compel documents
and answers to deposition questions that were withheld on the
basis of mediation privilege. The City filed an opposition. At a
hearing on the motion on July 25, 2019, the court described the
mediation charade as being akin to a fraud on the court. The
evidence in dispute resulted from a mediation that was presented
to the court for approval based on collusion and
misrepresentations. The court overruled the City’s objection, on
the ground that a legitimate mediation was prerequisite to
asserting the mediation privilege. The court granted PWC’s
July 2, 2019 motion to compel and ordered the City to produce all
documents previously withheld on the basis of a claimed
mediation privilege.
The City produced the document withheld during Kiesel’s
deposition: an email sent by Annaguey in August 2015, which
advised the City that agreeing to attorney fees “in the 7 figures”
for Landskroner could be difficult to support.
On July 19, 2019, PWC filed a motion to compel documents
related to the class action settlement based on Paradis’s
representation of Jones. The City objected on the ground of
attorney-client privilege and argued the crime-fraud exception
did not apply, because Paradis and Kiesel acted alone, without
the City’s knowledge or approval, and the City had not been
aware of the extent of former special counsel’s representation of
Jones. At a hearing on the motion to compel on August 12, 2019,
PWC asked the court to apply the crime-fraud exception and
mandate production of documents, instead of the slow drip of

23
discovery that had been received since the City brought in new
counsel.
The court found, based on the totality of the evidence, that
reasonable inferences could be drawn establishing a prima facie
case of fraud and the City’s complicity. The documents at issue
were communications between the City and its attorneys, who
were involved in representing both sides in the same lawsuit with
the City’s knowledge and purported direction. As a result, the
City’s written communication with special counsel about
Landskroner’s settlement proposal, the sham mediation, and the
charade settlement, were reasonably related to uncovering the
scope of the claimed fraud. The court found all of the
communications orchestrating the class action were directly
related to the collusive conduct and subsequent coverup. The
attorney-client privilege was waived as to the requested
communications because it was axiomatic that an attorney
cannot simultaneously represent two clients who are adverse to
each other in related litigation without destroying the duties of
confidentiality and undivided loyalty and trust owed to both
clients. The court granted PWC’s motion to compel and ordered
the documents subject to the motion to be produced within five
days. The court entered a written order consistent with the
rulings at the hearing on August 27, 2019.
At a joint status conference on August 21, 2019, PWC said
there had been progress on document production since the City’s
new counsel came into the case in March, but the progress was
slow. The City represented it would substantially complete
document production by August 30, 2019, along with a privilege
log, and responses to requests for production. The court ordered
the City to do so.

24
 On August 30, 2019, the City served amended objections
and responses to PWC’s fifth and sixth sets of requests for
production, another production of documents, and a partial
privilege log, but the City acknowledged that document
production was not yet complete. The parties stipulated to
extend the City’s deadline to produce the documents to allow City
to file a writ petition. The City filed a petition for writ of
mandate to vacate the August 12, 2019 order, challenging the
trial court’s determination that the crime-fraud exception to the
attorney-client privilege applied.
PWC set dates in October 2019 to depose another LADWP
employee and served a seventh set of requests for production. At
a status conference on September 25, 2019, PWC sought
production of the documents responsive to the trial court’s July
2019 orders that were not subject to the writ, as well as to take
the depositions that had been noticed, so PWC could bring its
motion for case terminating and monetary sanctions. PWC’s
counsel was not prepared to propose a date for the sanctions
motion yet, however, because PWC needed to conclude discovery
for this phase.
The court set a deadline in October 2019, for the City’s
production of discovery in response to PWC’s fifth, sixth, and
seventh sets of requests for production, including a declaration
that responses were complete, and all of the documents had been
produced unless there were objections based on privilege, as well
as a privilege log.

25
Dismissal and Postdismissal Motions

On September 26, 2019, the City filed a request for
dismissal of its case against PWC and others with prejudice. The
dismissal was entered by the trial court on October 2, 2019. After
the City notified this appellate court that the action had been
dismissed with prejudice, we dismissed the City’s pending
petition for writ of mandate as moot.
PWC withdrew deposition notices for eight witnesses, but
intended to proceed with the depositions of five witnesses related
to PWC’s intended sanctions motion. PWC filed an ex parte
application for an order concerning PWC’s right to file a motion
for sanctions for misuse of the discovery process and to complete
discovery related to the sanctions motion. At the hearing on the
ex parte application in October 2019, attorney Thomasch
explained that PWC was not moving for sanctions under section
128.5, which allows recovery of expenses incurred as a result of
bad faith actions or tactics that were frivolous or solely intended
to cause unnecessary delay, because the safe harbor provision
would allow the City to withdraw or correct its actions.
Thomasch believed section 2023.030 did not contain a safe harbor
provision. The trial court allowed PWC to file its motion in order
for the parties to present their arguments in a full briefing of the
issues.
In November 2019, PWC filed a motion to compel discovery
that had been previously ordered. PWC sought documents in
response to PWC’s fifth, sixth, and seventh sets of requests for
production, as well as a complete privilege log and three
depositions that had been noticed. PWC argued that the court

26
had continuing jurisdiction to order discovery in connection with
the sanctions motion.
At the hearing on PWC’s motion to compel in December
2019, in response to the trial court’s questioning, PWC clarified
that its motion for sanctions would relate solely to discovery
sanctions and not sanctions for any other purpose, such as bad
faith filing or inappropriate conduct during the course of a court
proceeding. The court questioned the necessity of additional
discovery to sanction conduct that had taken place already. PWC
argued that witnesses had been untruthful, which PWC asserted
was a misuse of the discovery process, and additional discovery
was necessary for the court to rule on the disputed testimony.
The court found it was inappropriate and unauthorized to create
new litigation over discovery for the purpose of litigating a
motion for discovery sanctions after dismissal of the case, and
therefore, the court denied PWC’s motion to compel the discovery
previously ordered.

Motion for Sanctions

On June 29, 2020, PWC filed the motion for monetary
sanctions pursuant to sections 2023.010 and 2023.030 that is at
issue on appeal. The motion was based on the City’s conduct that
PWC argued was a misuse of the discovery process under section
2023.010 as follows: (1) asserting attorney-client and attorney
work product privileges in bad faith to prevent discovery of the
Jones v. PWC draft complaint and remediation documents that
were not privileged (§ 2023.010, subd. (e)); (2) misrepresenting
and concealing facts at the December 4, 2017 hearing to avoid
production of the draft complaint (§ 2023.010, subds. (e), (f), (h));

27
(3) refusing to comply with the January 11, 2018 order directing
production of a PMQ witness about the preparation of the draft
complaint and filing a motion to quash the PMQ deposition notice
(§ 2023.010, subds. (d), (e), (g), (h)); (4) giving false responses and
failing to produce responsive, non-privileged documents in
response to PWC’s May 2, 2017 requests for documents
transmitted between LADWP and Jones’s counsel before
August 7, 2015 (§ 2023.010, subds. (d)–(f)); (5) failing to produce
responsive, non-privileged documents requested in the April 13,
2018 deposition notice for the PMQ (§ 2023.010, subds. (d), (g));
(6) providing false testimony and leaving the September 13, 2018
PMQ deposition without substantial justification (§ 2023.010,
subds. (d)–(g)); (7) bringing an unsuccessful motion for a
protective order without substantial justification to prevent
further PMQ testimony and without trying to resolve the dispute
informally (§ 2023.010, subds. (e), (h), (i)); (8) asserting a right to
withhold the draft complaint under a “common interest privilege”
(§ 2023.010, subds. (e), (f), (h)); (9) failing to produce relevant
documents from Peters’ computer hard drive (§ 2023.010,
subds. (d), (g)); (10) spoliating evidence through Clark’s
destruction of handwritten notes of interviews he conducted to
prepare for his PMQ deposition (§ 2023.010, subds. (d), (g)); and
(11) testifying evasively or falsely about the City’s knowledge of
the collusive nature of the class action (§ 2023.010, subd. (f)).
PWC sought to recover attorney fees in three categories:
fees incurred in connection with PWC’s efforts to compel
production of the draft complaint and to obtain information
surrounding the drafting; fees resulting from the City’s attempts
to cover up knowledge of and participation in the class action
fraud; and fees to prepare the motion for sanctions itself. The

28
tasks performed included: investigating facts; researching,
preparing, and arguing six successful motions to compel;
preparing briefs and attending court proceedings in connection
with 10 other filings related to discovery disputes; reviewing the
City’s document productions and privilege logs; preparing for and
taking 23 depositions; addressing discovery issues related to the
draft complaint in 12 status reports; preparing, propounding,
reviewing and responding to discovery requests; and preparing
the comprehensive sanctions motion.
PWC asserted that the court had authority to award
monetary sanctions under section 2023.030 and the court’s
inherent power. PWC requested a “baseline amount” of
$8,002,412 as monetary sanctions. The total incorporated
attorney fees of $7,857,017.98, including $792,579 to prepare and
file the motion for sanctions, and related expenses. In addition,
PWC suggested it would be an appropriate exercise of the court’s
inherent power to increase the amount of the monetary sanction
for fees and costs by $1,000,000 or more due to the egregious
nature of the City’s discovery abuse. PWC stated that the City’s
misconduct had been largely litigated and established through
the prior motion practice.
The attorney time records submitted in support of the
sanctions motion commingled fees that PWC incurred in
connection with its effort to obtain discovery with fees incurred in
connection with PWC’s investigation of the class action fraud,
assessment of the documents produced, and litigation strategies.
The first entry was for attorney fees of $1,203.60 incurred on
January 20, 2017, to review the City’s initial privilege log. More
than 4,000 separate entries were categorized as discovery
motions, depositions, fact investigation, appellate motions, other

29
written motions, preparation for and appearances at status
conferences, analysis/strategy, and other tasks. PWC’s counsel
stated these entries included 5,000 hours of work to investigate
the City’s knowledge of, and participation in, the class action
fraud at a cost to PWC of $4,259,529.14. The work included, for
example, counsel’s investigation of the LADWP Board’s activity
related to the class action fraud, investigation of the class action
settlement and remediation, legal research relating to possible
intervention in the class action, preparation and attendance at
hearings for the appointment of new counsel for Jones,
attendance at Los Angeles City Council meetings concerning the
class action fraud and preparation of debriefing about the
meetings, and review of the new class counsel’s report on the
state of the class action settlement.

Opposition to Motion for Sanctions

In August 2020, the City filed an opposition to the motion
for monetary sanctions. The City argued that the court lacked
jurisdiction to hear the motion because the action had been
dismissed with prejudice. The motion was also untimely, because
PWC waited years following the discovery abuse at issue to file
the motion. Timely sanctions motions were required to make
sanctions effective, and the issues for which sanctions were being
sought had long been concluded.
The City also argued that the court did not have inherent
authority to award monetary sanctions; there must be a statutory
or contractual basis to award monetary discovery sanctions. The
court’s authority to award sanctions could be exercised only
within the statutory framework authorizing monetary sanctions.

30
PWC’s motion demonstrated a fundamental misunderstanding of
the sanctions that may be awarded pursuant to sections 2023.010
and 2023.030 by seeking monetary sanctions that could never be
granted under the Discovery Act. Even if there was underlying
authority to issue monetary sanctions in this case, the sanctions
were limited to expenses incurred to compel a party to submit to
discovery, and there was no statutory authority to add a penalty
that exceeded the amount incurred by PWC. The Discovery Act
permitted monetary sanctions to remedy discovery abuse, not to
punish the offending party.
The City also contended the amount sought was
unreasonable. The laundry list of conduct raised by PWC in the
motion was not sanctionable discovery abuse. PWC had failed to
distinguish between fees incurred as a result of the misuse of
discovery and fees incurred in PWC’s self-motivated, voluntary
effort to investigate purported fraud in the class action lawsuit.
PWC sought to recover fees for motions that were granted only in
part, and fees that were not incurred “as a result of” purported
discovery abuse.
For example, PWC was not required to take 18 depositions
to challenge Clark’s corrections to his deposition testimony. PWC
had failed to explain how individual depositions were required as
a result of Clark’s conduct. Instead, the City argued, PWC
pursued substantial discovery because the information was
relevant to the merits of the case, to the potential damages that
the City sought, and to the sanctions motion that PWC intended
to bring. PWC’s effort to make class members whole did not
correlate to sanctionable discovery abuse, nor justify attorney fee
shifting.

31
 The City asserted that it had been substantially justified in
asserting the mediation privilege, attorney-client privilege, and
attorney work product protection. The City sought an award of
monetary sanctions in the amount of $147,036.50 to oppose
PWC’s motion.

Reply

In September 2020, PWC filed a reply. PWC argued that
the court had jurisdiction to hear the motion for sanctions as a
collateral matter and there was no bright line rule governing
timeliness. Moreover, any delay had not prejudiced the City.
PWC characterized the trial court’s prior statements about
sanctions as an instruction to reserve sanctions issues until the
end of discovery. PWC called upon the court to exercise its
supervisory powers over the parties to compensate PWC for years
of discovery and motion practice that resulted from the City’s
misconduct. The size of the sanctions award was within the
reasonable discretion of the trial court and the expenses sought
were reasonable in amount, including travel and lodging costs
that the court had taxed previously. The attached attorney
declaration noted the disruption caused by the COVID-19
pandemic, beginning with the closure of the California courts in
May 2020 and the beginning of virtual proceedings on June 22,
2020. PWC requested an additional $357,403.70 in attorney fees
as monetary sanctions in connection with the reply brief, but also
made a minor adjustment to amount in the original motion. As a
result, the total amount of “baseline costs” that PWC sought to
recover as a sanction was $8,356,852.

32
Hearing and Trial Court Ruling Awarding Sanctions

At the hearing on PWC’s motion for sanctions on October 6,
2020, PWC argued the misuse of discovery arose from the City’s
effort to resist production of the Jones v. PWC draft complaint
and to prevent discovery about the circumstances surrounding
the class action lawsuit. PWC had suspected collusion between
the City and Jones’s counsel early in the litigation based on a
number of factors: (1) Landskroner’s prior relationship with
Paradis; (2) the City’s settlement of the class action without
answering the complaint; (3) the agreement to pay excessive
attorney fees when no discovery was conducted; and (4) the terms
of the settlement, which simply obligated the City to take actions
that it had already promised to take.
PWC noted that if the City had answered questions
truthfully at the December 4, 2017 hearing, the court would have
ordered the draft complaint produced. Ten of the depositions
that PWC took after March 4, 2019, were of attorneys questioned
solely about the draft complaint. PWC emphasized the benefit to
the public that resulted from PWC’s persistent efforts to obtain
discovery, at a high cost to PWC, which should have been
provided voluntarily. The City had no justification for
obstruction, let alone substantial justification.
PWC argued that the motion was timely, because the court
and the City knew PWC planned to file a motion for sanctions
once the discovery issues were resolved, which occurred when the
court denied further discovery in December 2019. The draft took
time to compile because the discovery misconduct was so
pervasive. PWC’s counsel argued that a litigant who stonewalled
discovery should not be absolved of consequences because of a

33
delay of several months in bringing a motion for sanctions,
particularly during a pandemic, when an earlier filing date would
have changed nothing.
The City argued that the motion for sanctions was
profoundly untimely and the court had no jurisdiction to rule on
the motion after dismissal of the action with prejudice. The
City’s counsel expressed disbelief at PWC’s decision to spend
$1 million in attorney fees to prepare and bring a single motion
for discovery sanctions. The City emphasized that courts have no
inherent power to impose monetary sanctions for misconduct
without statutory authority. Case law allowing sanctions
motions to be heard after dismissal of the action as a collateral
proceeding applied to punishment for bad faith tactics under
other statutory provisions. The sanctions incorporated in the
discovery statutes were intended to remedy discovery abuse, not
punish the offending party. The conditions created by the
pandemic were not an excuse in this case.
PWC noted that there was no deadline to bring the motion
in the statute, no deadline had been imposed by the court, and
there was no prejudice as a result of the date of the filing. The
City had established no substantial justification and the fees
were reasonable.
The trial court concluded that it retained jurisdiction to
determine a postdismissal motion for sanctions under the
Discovery Act as a collateral statutory right. The court noted
that a judge has broad discretion to impose monetary sanctions
against anyone who has misused the discovery process, citing
Department of Forestry & Fire Protection v. Howell (2017)
18 Cal.App.5th 154 (Howell), disapproved on another ground in
Presbyterian Camp & Conference Centers, Inc. v. Superior Court

34
(2021) 12 Cal.5th 493, 516, footnote 17. The court listed misuses
of the discovery process set forth in section 2023.010 and relied
on the court’s authority to impose sanctions under section
2023.030. The court noted case law stating that the power to
impose sanctions under the Discovery Act supplemented, but did
not supplant, the court’s inherent power to deal with litigation
abuse, citing Padron v. Watchtower Bible & Tract Society of New
York, Inc. (2017) 16 Cal.App.5th 1246 (Padron).
In the court’s view, PWC was seeking sanctions for three
categories of conduct. First, PWC sought $2,801,946.49 for
attorney fees incurred in connection with the effort to compel
production of the Jones v. PWC draft complaint and information
surrounding drafting of the complaint. Second, PWC sought
$4,259,529.14 for attorney fees resulting from the City’s attempt
to cover up the extent of its knowledge and participation in the
potential class action fraud. Third, PWC sought $1,149,907.90
for attorney fees incurred in connection with the motion for
sanctions itself and associated expenses.
The court recited the timeline of circumstances and events
related to discovery that PWC had presented to support the
motion for sanctions, beginning with the City’s submission of its
first privilege log on January 20, 2017. The timeline included
PWC’s February 2017 motion to compel, which the court granted
in part on March 6, 2017, and the City’s attempts to resist
production of the draft complaint through privilege claims. The
court noted the City responded to PWC’s third set of requests for
production by saying only one responsive document existed, but
several more documents were later produced. The timeline
included the City’s failure to explain the attorney-client
relationship between Paradis and Jones to the court, PWC’s

35
actions to learn the circumstances surrounding the draft
complaint through a PMQ deposition, and the City’s actions to
resist providing the information. The court mentioned the court-
ordered depositions of Landskroner, Jones, and Paradis. The
timeline of events also included Clark’s errata to his March 14,
2019, PMQ deposition testimony and his subsequent deposition
dates, in which Clark changed his testimony, as well as other
depositions taken following the PMQ deposition. The timeline
included PWC’s motions to compel documents withheld on the
basis of privilege that were granted on July 25 and August 12,
2019. On September 26, 2019, the City voluntarily dismissed the
complaint against PWC with prejudice, preventing production of
the documents covered by the recent orders, and on June 29,
2020, PWC filed the instant motion for sanctions, which the City
opposed.
The trial court found there had been a serious abuse of
discovery by the City and its counsel. The court’s ruling was
expressly based on all of the evidence in the court files, the briefs,
the evidence supplied by the parties, and the totality of the
circumstances in the case. The court concluded that PWC was
required to expend substantial hours because of the City’s misuse
of the discovery process, which PWC stated totaled more than
9,405 hours. The court found that the serious abuse of discovery
merited considerable sanctions. Based on the court’s
consideration of all the evidence and the totality of the
circumstances, the court granted the motion for sanctions and
awarded sanctions against the City in the amount of $2,500,000.
The court’s order did not allocate amounts to different categories,
nor explain what the total amount included or excluded.

36
 On November 10, 2020, the trial court entered a written
order granting PWC’s motion for monetary sanctions in accord
with its ruling on October 6, 2020. The City filed a timely notice
of appeal from the order awarding sanctions. This appellate
court sent a letter pursuant to Government Code section 68081
providing the parties with an opportunity to present their views
on whether the trial court had authority to impose sanctions
pursuant solely to section 2023.010, section 2023.030, or both. 4

DISCUSSION

Standard of Review

“We review an order imposing discovery sanctions under
the abuse of discretion standard. [Citation.] An abuse of
discretion occurs if, in light of the applicable law and considering
all of the relevant circumstances, the court’s decision exceeds the
bounds of reason and results in a miscarriage of
justice. [Citations.] The abuse of discretion standard affords
considerable deference to the trial court, provided that the court
acted in accordance with the governing rules of law.” (New
Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403,
1422 (New Albertsons).) “We recognize that our review of the
trial court’s sanctions award is deferential, but we must ensure
the trial court has followed the applicable statute.” (Kwan

4 On February 1, 2022, PWC filed a request that this
appellate court take judicial notice of criminal plea agreements
entered into by Paradis, Peters, and Wright with the United
States Attorney’s Office. The request for judicial notice is denied,
as the plea agreements are not relevant to the issues on appeal.

37
Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57,
76 (Kwan).) “A decision ‘that transgresses the confines of the
applicable principles of law is outside the scope of discretion’ and
is an abuse of discretion. [Citation.]” (New Albertsons, supra,
168 Cal.App.4th at p. 1422.)
“Statutory interpretation involves purely legal questions to
which we apply the independent standard of review. [Citation.]
Thus, ‘where the propriety of a discovery order turns on statutory
interpretation, an appellate court may determine the issue de
novo as a question of law. [Citation.]’ [Citation.]” (Haniff v.
Superior Court (2017) 9 Cal.App.5th 191, 198.)
“[O]ur fundamental task is to ascertain the Legislature’s
intent so as to effectuate the purpose of the statute. [Citation.]
We begin with the language of the statute, giving the words their
usual and ordinary meaning. [Citation.] The language must be
construed ‘in the context of the statute as a whole and the overall
statutory scheme, and we give “significance to every word,
phrase, sentence, and part of an act in pursuance of the
legislative purpose.” ’ [Citation.]” (Smith v. Superior
Court (2006) 39 Cal.4th 77, 83.)
“In other words, ‘“we do not construe statutes in isolation,
but rather read every statute ‘with reference to the entire scheme
of law of which it is part so that the whole may be harmonized
and retain effectiveness.’ [Citation.]” ’ [Citation.] If the
statutory terms are ambiguous, we may examine extrinsic
sources, including the ostensible objects to be achieved and the
legislative history. [Citation.] In such circumstances, we choose
the construction that comports most closely with the
Legislature’s apparent intent, endeavoring to promote rather
than defeat the statute’s general purpose, and avoiding a

38
construction that would lead to absurd consequences. [Citation.]”
(Smith v. Superior Court, supra, 39 Cal.4th at p. 83.)

Monetary Sanctions for Misuse of the Discovery Process

PWC brought its motion for monetary sanctions under
sections 2023.010 and 2023.030 of the Discovery Act. We
conclude that these definitional statutes, standing alone or read
together, do not authorize the court to impose sanctions in a
particular case.

A. General Statutory Scheme

The Discovery Act provides a self-executing process for
litigants to obtain broad discovery with a minimum of judicial
intervention. (Sinaiko v. Healthcare Consulting, Inc. v. Pacific
Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.) To
accomplish this exchange, the Discovery Act sets forth six
methods of civil discovery in different chapters: depositions,
interrogatories, inspections, medical examinations, requests for
admission, and exchanges of expert witness information.
(§ 2019.010.)
Each discovery method authorizes the court to impose
specific types of sanctions under specific circumstances. When a
discovery motion is filed, the statute governing the motion
generally requires that the court impose a monetary sanction
against a party, person, or attorney who unsuccessfully made or
opposed the motion, unless the person subject to the sanction
acted with substantial justification or sanctions would be unjust
under the circumstances. (New Albertsons, supra,

39
168 Cal.App.4th at p. 1423.) “The statutes state that the court
may impose an issue, evidence, or terminating sanction, however,
only if a party fails to obey a court order compelling discovery.”
(Ibid.)
As a relevant example, the inspections chapter allows a
party to demand the production of documents. (§ 2031.010,
subd. (b).) The party subject to the demand may file a motion for
a protective order under section 2031.060, and the statute directs
the court to impose a monetary sanction under the sanctions
chapter against the unsuccessful party, person, or attorney
unless the party acted with substantial justification or sanctions
would be unjust. (§ 2031.060, subds. (a), (b), (h).) If a party fails
to serve a timely response to a demand for inspection, the party
making the demand may file a motion to compel a response to the
demand. (§ 2031.300, subd. (b).) Under section 2031.300, the
court is explicitly required to impose a monetary sanction against
an unsuccessful party, person, or attorney acting without
substantial justification in connection with a motion to compel a
response, and if a party fails to obey an order compelling a
response the court may impose an issue, evidence, or terminating
sanction under the sanctions chapter. (§ 2031.300, subd. (c).) 5

5 Section 2031.300, subdivision (c), states in full: “[With
the exception of electronically stored information under certain
circumstances,] the court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any
party, person, or attorney who unsuccessfully makes or opposes a
motion to compel a response to a demand for inspection, copying,
testing, or sampling, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust. If a
party then fails to obey the order compelling a response, the court

40
 In addition to the chapters governing specific discovery
methods, there are other provisions of the Discovery Act that
expressly authorize the court to impose certain types of sanctions.
(See, e.g., § 2019.030 [court must impose monetary sanctions
under the sanctions chapter against party who unsuccessfully
files or opposes motion for protective order arguing discovery is
duplicative, burdensome, or expensive, unless party acted with
substantial justification or sanctions would be unjust under the
circumstances]; § 2023.020 [court must impose monetary sanction
against any party or attorney who fails to confer as required].)
“The trial court cannot impose sanctions for misuse of the
discovery process as a punishment. [Citation.] [¶] The discovery
statutes evince an incremental approach to discovery sanctions,
starting with monetary sanctions and ending with the ultimate
sanction of termination. ‘Discovery sanctions “should be
appropriate to the dereliction, and should not exceed that which
is required to protect the interests of the party entitled to but
denied discovery.” ’ [Citation.] If 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. ‘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

may make those orders that are just, including the imposition of
an issue sanction, an evidence sanction, or a terminating sanction
under Chapter 7 (commencing with Section 2023.010). In lieu of
or in addition to this sanction, the court may impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010).”
(§ 2031.300, subd. (c).)

41
compliance with the discovery rules, the trial court is justified in
imposing the ultimate sanction.’ (Mileikowsky v. Tenet
Healthsystem (2005) 128 Cal.App.4th 262, 279–280.)” (Doppes v.
Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992,
fn. omitted.)
“ ‘Discovery sanctions are intended to remedy discovery
abuse, not to punish the offending party. Accordingly, sanctions
should be tailored to serve that remedial purpose, should not put
the moving party in a better position than he would otherwise
have been had he obtained the requested discovery, and should
be proportionate to the offending party’s misconduct.’ (Williams
v. Russ (2008) 167 Cal.App.4th 1215, 1223.)” (Padron, supra,
16 Cal.App.5th at pp. 1259–1260.)

B. Section 2023.010

Section 2023.010 describes general categories of discovery
misconduct, but does not contain any language that authorizes
the court to impose sanctions for the conduct listed. Section
2023.010 states in full: “Misuses of the discovery process include,
but are not limited to, the following: [¶] (a) Persisting, over
objection and without substantial justification, in an attempt to
obtain information or materials that are outside the scope of
permissible discovery. [¶] (b) Using a discovery method in a
manner that does not comply with its specified procedures. [¶]
(c) Employing a discovery method in a manner or to an extent
that causes unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. [¶] (d) Failing to
respond or to submit to an authorized method of discovery. [¶]
(e) Making, without substantial justification, an unmeritorious

42
objection to discovery. [¶] (f) Making an evasive response to
discovery. [¶] (g) Disobeying a court order to provide discovery.
[¶] (h) Making or opposing, unsuccessfully and without
substantial justification, a motion to compel or to limit discovery.
[¶] (i) Failing to confer in person, by telephone, or by letter with
an opposing party or attorney in a reasonable and good faith
attempt to resolve informally any dispute concerning discovery, if
the section governing a particular discovery motion requires the
filing of a declaration stating facts showing that an attempt at
informal resolution has been made.” (§ 2023.010.)
Unlike provisions of the Discovery Act which expressly
direct the court to impose specific types of sanctions under
specific circumstances, there is no language in section 2023.010
stating that the court may impose a sanction under chapter 7 or
stating the type of sanction to impose. It is clear that the
Legislature knows how to enact statutes that authorize the court
to impose sanctions under chapter 7 of the Discovery Act. (See,
i.e., § 2031.300, subd. (c).) If the Legislature intended for the
court to impose sanctions for misuse of the discovery process
based directly on the provisions of section 2023.010, they knew
how to write section 2023.010 to authorize sanctions under
section 2023.030.
Instead, each of the categories of misconduct listed in
section 2023.010 are managed through the procedures set forth in
the chapters governing the discovery methods, as well as the
other provisions of the Discovery Act that regulate and sanction
misconduct. For example, the types of misconduct listed in
section 2023.010, subdivisions (a), (b), and (c), which concern
misuse of the discovery methods in ways that are overly
burdensome or for which they were not designed, are addressed

43
through statutes providing for protective orders and sanctions
(see, i.e., §§ 2019.030, 2025.420, subds. (a), (b)). Failing to
respond to discovery requests (§ 2023.010, subd. (d)) and
providing evasive responses (§ 2023.010, subd. (f)) are regulated
and sanctioned under the chapters governing the different
discovery methods, such as the chapter addressing inspection
demands, which provides for motions to compel a response when
a party fails to respond (§ 2031.300, subd. (b)) and to compel a
further response (§ 2031.310, subd. (h)), as well as for the court to
impose a monetary sanction against the party who unsuccessfully
opposed a motion to compel without substantial justification.
Sanctions for making an unmeritorious objection (§ 2023.010,
subd. (e)) are authorized in the chapters governing the discovery
methods as well, such as the chapter governing oral depositions,
which directs the court to sanction a party who unsuccessfully
and without substantial justification files a motion to quash a
deposition notice (§ 2025.410, subds. (c), (e)). Provisions of the
Discovery Act authorize specific sanctions when a party
unsuccessfully makes or opposes a motion to compel discovery
without substantial justification (§ 2023.010, subd. (h)) or
disobeys a court order to provide discovery (§ 2023.010, subd. (g)).
(See, i.e., § 2031.300, subd. (c).) Sanctions for failing to confer
(§ 2023.010, subd. (h)) are expressly provided for in section
2023.020. To interpret section 2023.010 as authorizing the court
to impose sanctions for the categories of discovery misconduct
listed would make the carefully constructed sanctions provisions
of the chapters governing the discovery methods superfluous.
The leading treatise on California discovery law,
coauthored by Professor James Hogan, who was the Reporter for
the commission that drafted the Discovery Act, states that the

44
Legislature emphasized its concern about the misuse of discovery
that had developed by cataloguing different types of misuse in
section 2023.010. (2 Hogan & Weber, Cal. Civil Discovery (2 ed.
2005) Sanctions, § 15.1 (2 Hogan & Weber).) Professor Hogan
explains, “This subdivision is essentially a statutory preamble or
policy statement identifying generally the classes of undesirable
conduct that prompted the 1986 revision of California’s civil
discovery system. It alerts litigants to the Legislature’s deep-
seated concern that they do not undermine the goals of civil
discovery by practices detrimental to its proper operation.”
(Ibid.) The catalogue of discovery misuse in section 2023.010
adds nothing substantive to the Discovery Act. (Ibid.) 6 “The
individual sections of the Act regulating the six methods of

6 Professor Hogan mentions one exception. (2 Hogan &
Weber, supra, § 15.1.) When originally enacted in 1986, former
section 2023, subdivision (a), contained the catalog of discovery
misuse, and former section 2023, subdivision (b), provided the
types of sanctions available. (Former § 2023.) As originally
enacted, former section 2023, subdivision (a)(7), expressly stated
that the trial court may impose a monetary sanction under
section 2023 against any party who failed to confer as required.
(Former § 2023, subd. (a)(7).) The Legislature adopted minor
amendments to clean up the Discovery Act before the operative
date of the provisions (Stats. 1987, ch. 86, § 6, enacted July 2,
1987, operative July 1, 1987), and later reorganized former
section 2023 into three new statutes, effective July 1, 2005,
without substantive change. (Recommendation: Civil Discovery:
Nonsubstantive Reform (Sept. 2003) 33 Cal. Law Revision Com.
Rep. (2003) pp. 809, 835–838.) The provision of former section
2023 authorizing the trial court to impose a monetary sanction
for failing to confer is now contained in section 2023.020, and as a
result, none of the subdivisions of section 2023.010 expressly
authorize the trial court to impose a sanction of any type.

45
discovery contain the provisions that aim to eliminate or
ameliorate the listed abuses. Trial courts should look to these
provisions, and not to Section 2023.010, when a party brings any
particular discovery misuse or abuse to its attention.” (Ibid.,
fn. omitted.)

C. Section 2023.030

Section 2023.030 describes the types of sanctions available
under the Discovery Act when another provision authorizes a
particular sanction. Section 2023.030 does not independently
authorize the court to impose sanctions for discovery misconduct.
Section 2023.030 provides in full: “To the extent
authorized by the chapter governing any particular discovery
method or any other provision of this title, the court, after notice
to any affected party, person, or attorney, and after opportunity
for hearing, may impose the following sanctions against anyone
engaging in conduct that is a misuse of the discovery process: [¶]
(a) The court may impose a monetary sanction ordering that one
engaging in the misuse of the discovery process, or any attorney
advising that conduct, or both pay the reasonable expenses,
including attorney’s fees, incurred by anyone as a result of that
conduct. The court may also impose this sanction on one
unsuccessfully asserting that another has engaged in the misuse
of the discovery process, or on any attorney who advised that
assertion, or on both. If a monetary sanction is authorized by any
provision of this title, the court shall impose that sanction unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of
the sanction unjust. [¶] (b) The court may impose an issue

46
sanction ordering that designated facts shall be taken as
established in the action in accordance with the claim of the
party adversely affected by the misuse of the discovery process.
The court may also impose an issue sanction by an order
prohibiting any party engaging in the misuse of the discovery
process from supporting or opposing designated claims or
defenses. [¶] (c) The court may impose an evidence sanction by
an order prohibiting any party engaging in the misuse of the
discovery process from introducing designated matters in
evidence. [¶] (d) The court may impose a terminating sanction
by one of the following orders: [¶] (1) An order striking out the
pleadings or parts of the pleadings of any party engaging in the
misuse of the discovery process. [¶] (2) An order staying further
proceedings by that party until an order for discovery is obeyed.
[¶] (3) An order dismissing the action, or any part of the action,
of that party. [¶] (4) An order rendering a judgment by default
against that party. [¶] (e) The court may impose a contempt
sanction by an order treating the misuse of the discovery process
as a contempt of court. [¶] (f)(1) Notwithstanding subdivision
(a), or any other section of this title, absent exceptional
circumstances, the court shall not impose sanctions on a party or
any attorney of a party for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten
as the result of the routine, good faith operation of an electronic
information system. [¶] (2) This subdivision shall not be
construed to alter any obligation to preserve discoverable
information.” (§ 2023.030.)
The plain language of the statute requires sanctions under
section 2023.030 to be authorized by another provision of the
Discovery Act. Other courts have interpreted the statutory

47
language to mean that sanctions are available under section
2023.030 to the extent they are authorized by another provision
of the Discovery Act. (See, i.e., New Albertsons, supra,
168 Cal.App.4th at p. 1408 [availability of nonmonetary sanctions
without court order compelling discovery]; London v. Dri-Honing
Corp. (2004) 117 Cal.App.4th 999, 1005 (London) [concluding “to
the extent authorized” refers to authorization by particular
discovery chapter to impose certain type of sanction, but does not
extend to procedural requirements for filing a timely motion];
Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1114 (Zellerino)
[former § 2023, subd. (b), current § 2023.030, limits permissible
sanctions to those authorized by section governing any particular
discovery method].)
As the court concluded in New Albertsons, supra, 168
Cal.App.4th at pages 1422 to 1423: “Section 2023.030 authorizes
a court to impose the specified types of sanctions, ‘[t]o the extent
authorized by the chapter governing any particular discovery
method or any other provision of this title.’ [Citation.] This
means that the statutes governing the particular discovery
methods limit the permissible sanctions to those sanctions
provided under the applicable governing statutes. (London[,
supra, 117 Cal.App.4th at pp. 1005–1006] [applying former
§ 2023, subd. (b)]; Zellerino[, supra, 235 Cal.App.3d at p. 1114]
[same]; Ruvalcaba v. Government Employees Ins. Co. (1990)
222 Cal.App.3d 1579, 1581–1583 (Ruvalcaba) [same]; see
2 Hogan & Weber, Cal. Civil Discovery (2d ed. 2005) Sanctions,
§§ 15.1, 15.2 & 15.5, pp. 15–1 to 15–3, 15–15 to 15–17.)”
Professor Hogan adds in his treatise, “The most cursory
examination of Section 2023.030 reveals that it is only a lexicon.
It principally names and defines the adjectives, ‘monetary,’

48
‘issue,’ ‘evidence,’ ‘terminating’ and ‘contempt,’ that the Act uses
elsewhere to describe the specific sanctions available for any
particular discovery abuse. Indeed, Section 2023.030 states that
a court may impose any of the sanctions it defines only ‘[t]o the
extent authorized by the section governing any particular
discovery method.’ ” (2 Hogan & Weber, supra, § 15.2.) Section
2023.030 “names and defines the various sanctions that might be
available for misuse of discovery. Then, in the individual
statutes that regulate each discovery device, it specifies which of
those sanctions are available for specific misuses of that device.”
(Ibid., fn. omitted.) “Ordinarily, the Civil Discovery Act locates
the sanctions that the court may impose for a specific misuse of a
certain discovery device in the same statute that regulates that
discovery device. For example, the Act does not merely regulate
interrogatories; it also details the procedures to follow and the
sanctions available if the responding party answers the
interrogatories inadequately or not at all.” (Ibid., fn. omitted.)

D. Application to the Present Case

Based on the plain language of the statutes discussed
above, we conclude that sections 2023.010 and 2023.030 do not
independently authorize the trial court to impose monetary
sanctions for misuse of discovery. The award of monetary
sanctions in this case, which was based solely on sections
2023.010 and 2023.030 without regard to any other provision of
the Discovery Act, constituted an abuse of discretion because it
was outside the bounds of the court’s statutory authority.
We recognize that the timeline of circumstances and events
recited by the trial court included discovery proceedings for which

49
monetary sanctions were authorized, but we cannot presume the
trial court tailored its award to expenses resulting from
sanctionable conduct. The sanctions motion relied solely on
sections 2023.010 and 2023.030, without identifying any
underlying discovery statutes that authorized monetary
sanctions. PWC sought expenses resulting from violations of the
categories set forth in section 2023.010, rather than listing
expenses incurred as a result of sanctionable conduct under a
discovery provision other than 2023.010 or 2023.030. The trial
court relied on case law cited by PWC, discussed further below,
which did not address the statutory language of section 2023.030
requiring sanctions to be authorized by another discovery
provision. And the trial court expressly based its award on all of
the evidence, the briefs, and the totality of the circumstances
presented in the case, rather than on conduct sanctionable under
discovery provisions other than sections 2023.010 and 2023.030.
We also cannot conclude that the amount awarded was an
appropriate exercise of the court’s discretion with respect to the
underlying discovery provisions authorizing monetary sanctions,
because PWC presented its expenses based on violations of
section 2023.010. As one example, PWC sought attorney fees
incurred to review the City’s initial privilege log, because the City
listed documents in bad faith that were not privileged, in
violation of section 2023.010, subdivision (e). Under the
discovery statutes, however, a propounding party who deems an
objection to be without merit may bring a motion to compel
further response under section 2031.310, subdivision (a)(3). The
court is required to impose a monetary sanction under section
2031.310, subdivision (h) against a party who unsuccessfully
opposes the motion in the amount of the reasonable expenses

50
incurred as a result of the sanctionable conduct. Because the
motion was presented based on violations of section 2023.010,
PWC listed substantial expenses that appear unrelated to
sanctionable discovery conduct under other provisions, such as
attorney fees incurred for independent factual investigation, or to
attend city council meetings, or to take depositions in an attempt
to prove the substantive testimony of another witness was false.
We recognize that the statutory language of section
2023.030 limiting sanctions “to the extent authorized” by other
provisions of the Discovery Act was not addressed in the trial
court, and no prior case law squarely held that section 2023.030
requires monetary sanctions to be authorized by another
provision of the Discovery Act. As a result, we conclude the order
in this case must be reversed and remanded to allow PWC an
opportunity to present the issue of sanctions to the trial court for
determination under the law as clarified. Our conclusion that the
sanctions order must be reversed, and any award of sanctions
must be made in conformance with the requirements of the
Discovery Act, is not intended to absolve the City of the serious
and egregious nature of the conduct at issue; we take no position
as to the amount of monetary sanctions that would be
appropriate for the trial court to assess on remand.

E. Cases Relied on by PWC are Distinguishable

PWC relies on several cases to support its position that
sanctions may be imposed directly under sections 2023.010 and
2023.030 without regard to any other provision of the Discovery
Act. None of the cases relied on by PWC, however, consider the
statutory language of section 2023.030 that limits sanctions “to

51
the extent authorized by” another provision of the Discovery Act.
In addition, all of the cases cited by PWC are distinguishable in
meaningful ways.

1. Cases in which Authorization was not at Issue

Some cases, in summarizing the general statutory scheme
governing discovery sanctions or determining whether sanctions
may be imposed under section 2023.030 in a particular case, fail
to mention the portion of the statutory language limiting
sanctions to those authorized by another provision of the
Discovery Act. (See, i.e., Los Defensores, Inc. v. Gomez (2014)
223 Cal.App.4th 377, 390.) In these cases, however, the facts
reflect that sanctions were authorized by a discovery provision
other than sections 2023.010 and 2023.030, and the court’s
authorization to impose sanctions was not at issue. (See, i.e.,
Pratt v. Union Pacific Railroad Co. (2008) 168 Cal.App.4th 165,
182–184 (Pratt) [trial court granted preliminary injunction,
which appellate court deemed a protective order under discovery
statutes; appellate court’s discussion of monetary sanctions
referred solely to §§ 2023.010 and 2023.030, but we note
§ 2019.030 authorizes court to impose monetary sanctions
against party who unsuccessfully opposes protective order
without substantial justification]; Clement v. Alegre (2009)
177 Cal.App.4th 1277, 1284 (Clement) [order compelling further
answers under §§ 2030.300 and 2023.010 supported monetary
sanctions of $6,632.50]; Howell, supra, 18 Cal.App.5th at pp. 166,
184–195 [monetary and terminating sanctions were justified by
plaintiff’s misuse of discovery process, including willful violation
of court orders to produce documents, spoliation of evidence, and

52
denials of requests for admission that allowed defendants to
recover cost-of-proof expenses, but amount of monetary sanctions
had to be limited to fees and expenses incurred as a result of
discovery abuse]; Ellis v. Toshiba (2013) 218 Cal.App.4th 853,
877–881 (Ellis) [monetary sanctions awarded for discovery abuse,
including violation of court orders to provide discovery and failing
to meet and confer]; see also Mileikowsky v. Tenet Healthsystem,
supra, 128 Cal.App.4th at p. 262 [stipulation that defendant
could seek terminating sanction if plaintiff failed to produce
discovery was deemed equivalent to court order, satisfying
requirement before imposing terminating sanction].)
“It is axiomatic that cases are not authority for propositions
that are not considered.” (The California Gun Rights Foundation
v. Superior Court (2020) 49 Cal.App.5th 777, 792.) To the extent
language in Pratt, Clement, Howell, or Ellis could be construed to
mean that courts may impose monetary sanctions based solely on
the provisions of sections 2023.010 or 2023.030, or both, without
regard to whether sanctions are authorized by another provision
of the Discovery Act, we respectfully disagree.

2. Cases Allowing Imposition of Statutory Discovery
Sanctions Without Requiring Compliance with
Requirements

PWC relies on several other cases to support its conclusion
that sanctions may be awarded directly under section 2023.030,
without resort to other provisions of the Discovery Act. We
conclude these cases stand for a different proposition that is
consistent with the statutory scheme: in exceptional
circumstances, when a prerequisite to imposing sanctions under

53
a particular discovery method, such as filing a motion to compel,
is impossible, futile, or an idle act, the court may excuse
compliance with the requirement and fashion a remedy from the
sanctions authorized by the discovery chapter. To the extent that
the courts in these cases relied solely on sections 2023.010 and
2023.030 for the authority to impose sanctions, however, we
disagree. The cases cited by PWC generally address three types
of egregious circumstances, none of which are present in the
current case.

a. False Answer Concealing the Existence of
Discoverable Information

A responding party’s false answer in discovery that
conceals the existence of discoverable information may excuse the
propounding party from compliance with a prerequisite to obtain
sanctions under a provision of the Discovery Act. (See, i.e., Pate
v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455–1456
(Pate) [after defendant’s repeated assurances that all responsive
documents were produced, plaintiff had no reason to file motion
to compel further responses; when defendant attempted to
introduce documents at trial that were not disclosed, no prior
order compelling discovery was required before imposing
evidence sanction under former § 2031, subd. (l)]; Sherman v.
Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1155–1163
(Sherman) [one week after jury verdict for defendant, plaintiffs
learned defendant failed to produce 21 incident reports
responsive to discovery requests; appellate court ordered new
trial and monetary sanctions sufficient to cover plaintiffs’ costs
for first trial that would be redone, noting plaintiffs could not

54
have moved to compel production of documents they did not know
existed and could not have sought sanctions until they discovered
defendant’s responses were inadequate or evasive]; Vallbona v.
Springer (1996) 43 Cal.App.4th 1525, 1545–1546 (Vallbona)
[motion to compel response would have been futile, because
defendants said documents requested had been stolen; when
defendants attempted to introduce the documents at trial, a prior
order compelling discovery was not required before imposing
evidence and issue sanctions under authority of former § 2031,
subd. (k)].) In these cases, the responding party’s false answer
concealed the existence of discoverable information, so the
propounding party had no reason to employ the enforcement
measures provided by the discovery methods. When the
existence of responsive discovery came to light at trial or later,
the propounding party was excused from the requirement of a
motion to compel, and the court employed sanctions authorized
by the discovery chapter to remedy the impact of the discovery
abuse.
The instant case is distinguishable. The City arguably
provided false answers about the existence of responsive
discovery. But the City’s false answers about the existence of
discovery never caused PWC to stop seeking discovery of the
information. PWC was suspicious of the arrangement between
the City and Jones early in the case, and despite any false
answers that the City gave about the existence of discovery, PWC
persisted by using the procedures available to obtain discovery.
After PWC was alerted to the existence of the Jones v. PWC draft
complaint in the City’s original privilege log, PWC actively
sought to obtain discovery of the draft complaint over the City’s
objections by utilizing the procedures provided in the discovery

55
statutes leading to sanctions. This is not a case in which the
court must excuse PWC’s lack of compliance with a prerequisite
procedure to sanctions in order to impose the sanctions available
in connection with that procedure. The cases that have excused a
party’s compliance with the requirements of a discovery
provision, such as a motion to compel discovery, due to the
responding party’s concealment of the existence of discoverable
information, are inapplicable. 7

b. Evidence is Unavailable

Courts have also imposed sanctions without requiring
compliance with a prerequisite when the responding party’s
actions have made discovery unavailable, such as through
spoliation of evidence. In these cases, a motion to compel
discovery would be futile, because the evidence no longer exists
as a result of the sanctioned party’s misconduct, and therefore,

7 As guidance to the parties and the trial court on remand,
we note that a party’s false answers in discovery about the merits
of an issue in dispute are addressed through the chapter
governing requests for admission. A party may propound a
written request to another party to admit the truth of a matter of
fact, an opinion related to fact, or an application of the law to
fact. (§ 2033.010.) If a party fails to admit the truth of any
matter in response to a request for admission, and the
propounding party proves the truth of the matter, the
propounding party may file a motion for an order awarding the
reasonable expenses incurred to prove the matter, including
attorney fees. (§ 2033.420, subd. (a).) Cost-of-proof expenses “are
recoverable only where the party requesting the admission
‘proves . . . the truth of that matter,’ not where that party merely
prepares to do so.” (Wagy v. Brown (1994) 24 Cal.App.4th 1, 6.)

56
the court may impose the sanctions authorized by the discovery
method. (Do It Urself Moving & Storage, Inc. v. Brown, Leifer,
Slatkin & Berns (1992) 7 Cal.App.4th 27, 35–36 [motion to
compel discovery would have been futile, because plaintiffs
conceded they were unable to provide discovery, so order
compelling discovery was not required prior to imposing evidence
sanction for misuse of discovery process]; Kwan, supra,
58 Cal.App.5th at pp. 74–78 [trial court was required to impose
monetary sanctions under § 2023.030 after finding plaintiffs
committed serious discovery abuse by destroying evidence and
providing false responses about the existence of discovery];
Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1209–
1226 (Karlsson) [issue and evidence sanctions properly imposed
after defendant engaged in a pattern of discovery abuse and
concealed evidence, causing evidence to become unavailable]; see
Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th
1, 17 [declining to create tort remedy for intentional spoliation of
evidence because existing remedies within litigation are
sufficient, including former § 2023 (current §§ 2023.010,
2023.020, and 2023.030), but not interpreting statutory language
“to the extent authorized”].)
The cases addressing the unavailability of evidence as a
result of the responding party’s conduct are distinguishable. The
present case is not one in which the remedies provided under the
Discovery Act were futile. In its motion for sanctions, PWC listed
one instance of spoliation: Clark’s destruction of his notes from
interviews that he conducted to prepare for his deposition as the
person most qualified to discuss the creation of the Jones v. PWC
draft complaint. The purpose of the PMQ deposition, however,
was to obtain information about the circumstances surrounding

57
the drafting of the pleading that would allow the trial court to
rule on PWC’s motion to compel production of the draft complaint
and the City’s objection on the ground of attorney-client privilege.
Two weeks after Clark’s PMQ deposition, the City provided the
full draft complaint to PWC.

c. Supplying Answers During Deposition

Similarly, in some cases where an attorney has supplied
answers to a deponent during the deposition, courts have
imposed the discovery sanctions authorized under the oral
deposition statutes without requiring compliance with
prerequisites. (See, i.e., Sabetian v. Exxon Mobil Corp. (2020)
57 Cal.App.5th 1054 (Sabetian); Tucker v. Pacific Bell Mobile
Services (2010) 186 Cal.App.4th 1548 (Tucker).) The statutes
governing oral depositions provide that if a deponent fails to
answer a question, the party seeking discovery may file a motion
for an order compelling the answer. (§ 2025.480, subd. (a).) The
court must impose a monetary sanction against the party, person,
or attorney who unsuccessfully makes or opposes a motion to
compel an answer without substantial justification. (§ 2025.480,
subd. (a).) Some courts, however, have imposed sanctions for
supplying answers to a deponent without first requiring the
deposing party to file a motion to compel the answers. (See, i.e.,
Sabetian, at pp. 1081–1086 [plaintiff violated trial court order to
answer deposition questions to the best of his ability, when
attorney coached deponent’s answers and suspended deposition,
supporting monetary sanctions under Discovery Act against
plaintiff and attorney]; Tucker, at pp. 1560–1564 [after attorney
supplied answers during deposition and threw away notes,

58
appellate court found motion to compel responses under
§ 2025.480 was not required to impose monetary sanctions under
§ 2030.030, but sanctions must be limited to expenses incurred as
a result of the discovery abuse].)
In these cases, the deposing party received an answer
during the deposition, but the answer was supplied by deponent’s
attorney, so the deposing party was entitled to remedies provided
in the statutes governing oral depositions to remedy the
attorney’s interference. We express no opinion as to whether
Sabetian or Tucker was correctly decided; we simply note that
both cases are distinguishable from the present case, which does
not involve the City’s counsel coaching a deponent’s answers
during deposition.
To the extent that the cases discussed above in which
evidence was concealed, unavailable, or coached, including Pate,
Sherman, Vallbona, Kwan, Karlsson, or Tucker, state that courts
may impose monetary sanctions based solely on section 2023.030,
alone or in conjunction with section 2023.010, without regard to
whether sanctions were authorized by another provision of the
Discovery Act, we respectfully disagree.

F. No Inherent Authority to Award Attorney Fees as
Monetary Sanction under the Court’s Supervisory Powers

In the trial court and on appeal, PWC has suggested that
the trial court’s inherent power to control the litigation includes
the authority to impose monetary sanctions for discovery
violations. This is incorrect.
Trial courts have inherent authority to impose
nonmonetary sanctions that are necessary to remedy misconduct

59
and ensure a fair trial (Olmstead v. Arthur J. Gallagher & Co.
(2004) 32 Cal.4th 804, 809 (Olmstead); New Albertsons, supra,
168 Cal.App.4th at p. 481), but trial courts may award attorney
fees as a sanction for misconduct only when authorized by statute
or an agreement of the parties. (Olmstead, at p. 809.) Trial
courts are prohibited “from using fee awards to punish
misconduct unless the Legislature, or the parties, authorized the
court to impose fees as a sanction.” (Ibid.)
The case of Padron, supra, 16 Cal.App.5th 1246, relied on
by PWC for its argument, is distinguishable based on its unique
facts. In Padron, the defendant unsuccessfully sought a
protective order and willfully refused to comply with the court’s
order to produce certain discovery, among other discovery
proceedings. (Id. at pp. 1253–1258.) The plaintiff filed a motion
for monetary sanctions. (Ibid.) The same defendant in Lopez v.
Watchtower Bible and Tract Society of New York, Inc. (2016)
246 Cal.App.4th 566, 606, had obtained a reversal of terminating
sanctions by contending that lesser sanctions were available,
such as monetary sanctions that increased incrementally.
(Padron, at p. 1249.) The trial court in Padron ordered the
defendant to pay $2,000 per day for every day that the defendant
did not produce responsive documents and $2,000 per day for
every day the defendant did not search for responsive documents.
(Id. at p. 1259.)
The appellate court affirmed the sanctions order without
discussing the limiting language of section 2023.030. (Padron,
supra, 16 Cal.App.5th at pp. 1260–1261.) The defendant
contended that the trial court lacked authority to impose
monetary sanctions that were unrelated to the plaintiff’s
reasonable costs to enforce discovery, but the Padron court

60
concluded that the defendant was judicially estopped by prior
arguments before the court from asserting this position. (Id. at
pp. 1260–1263.) In contrast, there is no issue of judicial estoppel
in the present case. In addition, it is clear that the defendant in
Padron unsuccessfully moved for a protective order and violated
orders compelling discovery for which monetary sanctions were in
fact authorized by provisions of the Discovery Act other than
section 2023.030.
The court in Padron, supra, 16 Cal.App.5th at page
1264,noted that even if judicial estoppel did not apply, monetary
sanctions could be imposed under the court’s inherent authority
to address litigation abuse, citing Stephen Slesinger, Inc. v. Walt
Disney Co. (2007) 155 Cal.App.4th 736, 762, without
acknowledging that Slesinger concerned the court’s inherent
authority to impose nonmonetary sanctions under its supervisory
power, and without acknowledging the controlling authority of
Bauguess v. Paine (1978) 22 Cal.3d 626, 634–638, and Olmstead,
supra, 32 Cal.4th at p. 809, holding that courts may not award
attorney fees as a monetary sanction for misconduct unless
expressly authorized by statute or contract. We recognize,
however, that the amount of monetary sanctions awarded in
Padron was untethered from any calculation of attorney fees or
costs incurred by the plaintiff. The Padron court added, “we see
nothing in the Civil Discovery Act that expressly prohibits the
superior court from imposing monetary sanctions like the ones
issued here.” (Padron, at p. 1265.) Section 2023.030, subdivision
(a), however, provides for monetary sanctions in the amount of a
party’s reasonable expenses incurred as a result of discovery
abuse. To the extent that Padron, at pages 1264 to 1265, may be
read to suggest that the court has inherent authority under its

61
supervisory powers to award attorney fees as monetary sanctions
for discovery abuse, we respectfully disagree.

Jurisdiction

The City contends that the trial court lacked jurisdiction to
consider PWC’s motion for discovery sanctions because it was
filed after the case was dismissed with prejudice. We hold that
after an action is dismissed with prejudice, the trial court retains
jurisdiction to rule on a motion for discovery sanctions as a
collateral matter when it is based on a ruling during the action
that authorized the court to impose sanctions under a provision
of the Discovery Act.
As a general rule, the court lacks jurisdiction to conduct
further proceedings with respect to a party who has been
dismissed from the action. (Frank Annino & Sons Construction,
Inc. v. McArthur Restaurants, Inc. (1989) 215 Cal.App.3d 353,
357.) “However, courts have carved out a number of exceptions to
this rule in order to give meaning and effect to a former party’s
statutory rights. Even after a party is dismissed from the
action[,] he may still have collateral statutory rights which the
court must determine and enforce. These include the right to
statutory costs and attorneys fees and the right to notice and
hearing on a motion to set aside the dismissal. [Citations.]”
(Ibid.)
In Spinks v. Superior Court (1915) 26 Cal.App. 793, 795, a
case relied on by the court in Frank Annino, the plaintiff filed a
voluntary dismissal of an action on the day before trial and the
trial court granted a judgment of costs for the defendant. In
collecting on the judgment, the defendant obtained a court order

62
to inspect the plaintiff’s books and records, and when the plaintiff
refused to comply, the defendant sought a citation for contempt.
The trial court concluded the judgment was void, because there
was no jurisdiction after the action had been voluntarily
dismissed. The appellate court, however, issued a writ of
mandate compelling the trial court to proceed with a contempt
hearing. The Spinks court concluded that although a voluntary
dismissal ended the case, “it cannot be contemplated that the
legislature, having provided authority and means for the securing
of costs to litigants, intended to leave a defendant remediless
against a plaintiff who chose to bring an action and put a
defendant to great costs in preparing to meet the same and then
dismiss the suit.” (Ibid.)
In this case, PWC brought multiple successful motions to
compel discovery during the litigation under provisions of the
Discovery Act which required the court to impose monetary
sanctions unless there was substantial justification for the City’s
positions or sanctions were otherwise unjust. PWC was entitled
to file a motion seeking monetary sanctions based on PWC’s
successful discovery motions, and as long as PWC’s motion was
otherwise timely, the court must determine and enforce PWC’s
collateral statutory rights to monetary sanctions. The City’s
dismissal of the action with prejudice could not prevent PWC
from obtaining the remedy that PWC became entitled to pursue
in connection with the successful discovery motions.
We do not need to decide in this case whether the trial
court has jurisdiction to consider a motion for discovery sanctions
brought after dismissal of the action in the absence of a discovery
ruling during the action for which monetary sanctions were
authorized. The trial court granted PWC’s motions to compel

63
discovery and the City’s misuse of the discovery process in this
case was exposed while the litigation was pending; none of the
conduct for which PWC sought sanctions came to light after the
case was dismissed.

Timeliness

The City contends PWC’s motion for monetary sanctions
was untimely. We conclude that the timeliness of a motion for
discovery sanctions based on a discovery ruling during the action
is a matter within the discretion of the trial court, and no abuse
of discretion has been shown.
A motion for monetary discovery sanctions may be filed
separately, after the underlying discovery motion allowing for an
award of sanctions has been litigated. (London, supra,
117 Cal.App.4th at p. 1001.) The better practice may be to
include a request for monetary sanctions within a motion to
compel discovery, but the discovery statutes do not require it.
(Id. at p. 1008.)
In considering the timeliness of a motion for discovery
sanctions, we note that parties must complete discovery on or
before the 30th day before the initial trial date in order to have a
right to have a discovery motion heard. (§ 2024.020, subd. (a);
Pelton-Shepherd Industries, Inc. v. Delta Packaging Products,
Inc. (2008) 165 Cal.App.4th 1568, 1585–1586.) A continuance or
postponement of the trial date does not normally operate to
reopen discovery (§ 2024.020, subd. (b)), but the court has
discretion, after considering circumstances set forth in section
2024.050, to grant leave to complete discovery proceedings closer

64
to the trial date or to reopen discovery after a new trial date is
set. (§ 2024.050; Pelton-Shepherd, at pp. 1586–1587.)
In Colgate-Palmolive Co. v. Franchise Tax Bd. (1992)
10 Cal.App.4th 1768, 1787–1788, the trial court found a motion
for discovery sanctions that the defendant filed seven months
after the misconduct, and after winning at trial, was untimely.
The motion failed to establish any prejudice to the defendant,
because the defendant was successful at trial. The appellate
court affirmed, finding no abuse of discretion, because “a timely
motion for sanctions is required to make these sanctions
effective.” (Id. at p. 1788.)
Under the circumstances of the present case, we conclude
that the trial court did not abuse its discretion by implicitly
finding PWC’s motion for discovery sanctions to be timely.
Beginning with the February 2017 motion to compel discovery
responses, which the trial court granted in part, PWC diligently
engaged in protracted discovery proceedings that ultimately
revealed the City’s misuse of the discovery process. After the
trial court denied PWC’s November 2018 motion for monetary
sanctions without prejudice to renewing the motion, the City
obstructed PWC’s efforts to obtain the information necessary for
the trial court to make an informed ruling about whether the
draft complaint was privileged or must be produced, and
unsuccessfully opposed several subsequent motions to compel
related discovery. The City’s request for dismissal of the action,
and the trial court’s entry of dismissal on October 2, 2019,
abruptly terminated discovery proceedings before the initial trial
date. The trial court was in the best position to evaluate the time
necessary for PWC to prepare a motion for monetary sanctions
under the circumstances, based on the lengthy record and the

65
numerous discovery proceedings supporting an award of
monetary sanctions. The City had notice as of March 2019, that
PWC intended to seek sanctions, and the City has not identified
any prejudice that resulted because the motion for sanctions was
not filed earlier.
In summary, although the trial court had jurisdiction to
entertain PWC’s motion for sanctions and discretion to find it
was timely filed, the order awarding sanctions must be reversed
and remanded to allow the trial court to award PWC’s reasonable
expenses incurred as a result of sanctionable conduct under
provisions of the Discovery Act other than sections 2023.010 and
2023.030.

DISPOSITION

The postjudgment order awarding sanctions is reversed,
and the matter remanded for the trial court to enter a new and
different order on the issue of monetary sanctions based on
discovery provisions authorizing the imposition of sanctions in
this case. In the interests of justice, the parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.

MOOR, J.

I concur:

RUBIN, P. J.

66
B310118
City of Los Angeles v. PricewaterhouseCoopers, LLP
GRIMES, J., concurring and dissenting.

I would affirm the trial court’s order.
This case presents a record of egregious discovery abuse
that is unmatched in my experience. The City of Los Angeles
(City) does not contend on appeal that it did not engage in
discovery abuses for which sanctions are recoverable under the
Civil Discovery Act. (Discovery Act; Code Civ. Proc., § 2016 et
seq.) 1 And while the City argued in the trial court that the hours
spent and the amount of fees sought on the motion for sanctions
were excessive, the City did not appeal the order on the ground
that the $2.5 million award was excessive. Instead, the City
contends jurisdictional, statutory, and timeliness requirements
bar the award. I disagree.
I concur with the majority opinion on the jurisdictional
issue: The trial court had jurisdiction to consider the sanctions
motion under the circumstances of this case. I also concur with
the majority’s conclusion that the timeliness of a motion for
monetary sanctions is a matter within the trial court’s discretion,
and the trial court did not abuse its discretion by implicitly
finding the motion was timely. The question of timeliness was
raised and argued extensively before the trial court, and the court
explicitly referred to the timeliness arguments in its ruling from
the bench.
I dissent from the majority’s conclusion that
sections 2023.010 and 2023.030 are “definitional statutes [that],

1 Further undesignated statutory references are to the Code
of Civil Procedure.

1
standing alone or read together, do not authorize the court to
impose sanctions in a particular case.” (Maj. opn. ante, at p. 39.)
I likewise dissent from the majority’s related conclusion that the
trial court must reevaluate the sanctions to be awarded
defendant PricewaterhouseCoopers (PwC) based on discovery
provisions authorizing sanctions other than sections 2023.010
and 2023.030 (maj. opn. ante, at pp. 2–3).
1. The Facts
The majority has described the factual and procedural
background at length. Yet that description does not convey the
constant and egregious nature of the City’s discovery abuse over
a period of almost two and a half years. Nor does it describe how
gradually, at hearing after hearing, it finally became clear to the
trial court that the City Attorney’s office, and not just outside
special counsel, had colluded from the outset with Mr. Antwon
Jones’s lawyers to create a settlement in the Jones class action
against the City that would enrich the lawyers, deprive the Jones
class of due compensation, defraud the public, and orchestrate
the amount of the City’s damages in its case against PwC—all
the while engaging in a coverup of the collusion by refusing to
provide discovery and asserting false claims of privilege. The
record discloses the enormity of the City’s discovery abuse; its
genesis at the very outset in January 2017 and its continuation
virtually unabated until the City abruptly dismissed its
complaint; and the court’s increasing understanding, over the
course of numerous hearings, of the scope of the abuse,
culminating in the court’s ultimate conclusion the City’s conduct
amounted to a fraud on the court.
This was not a course of conduct that lent itself to
piecemeal motions for sanctions for each particular discovery

2
abuse that occurred. I do not wish to lengthen this opinion
unduly with a full recitation of the numerous motions and
hearings that reflected the City’s long campaign of discovery
abuse. But some repetition is necessary, because it is important
to understand that the discovery abuse began in February 2017
with the City’s failure to produce the draft Jones v. PwC
complaint in response to PwC’s first motion to compel production
of documents the City withheld as privileged—which were
ultimately revealed to be not privileged. When the Jones v. PwC
complaint was finally produced on March 11, 2019, that was by
no means the end of the City’s discovery abuse.
The court’s gradual realization of the magnitude of the
City’s discovery abuse explains why the court deferred sanctions
rulings on two different occasions: August 27, 2018, and
December 5, 2018. On the first occasion (which involved
discovery from a third party apparently represented by the City’s
counsel), the court stated that “the court is going to allow the
parties at a later date to make further request for sanctions if the
conduct of refusing to produce documents continues and the court
will evaluate the request for sanctions based upon the entirety of
the discovery process in this case.” On the second occasion,
December 5, 2018, the court stated: “I’m going to defer any issue
of sanctions until we conclude this issue to determine all the facts
and circumstances with regard to the matters in dispute. So the
motion for sanctions is denied without prejudice to bringing it
back after we get the final information with regard to this
particular issue on privilege asserted concerning the Jones versus
PwC complaint.” The court’s recognition of the need “to
determine all the facts and circumstances with regard to the

3
matters in dispute” before considering sanctions was a manifestly
reasonable exercise of discretion.
Before the City finally produced the Jones v. PwC
complaint on March 11, 2019, there were at least eight hearings
on discovery motions, and there were many more thereafter.
I will describe some of the highlights.
On March 6, 2017, there was a hearing on PwC’s first
motion to compel production of thousands of documents
improperly withheld as privileged. The court ordered the
production of 17,000-plus documents withheld as work product,
but allowed the City to revise its log of attorney-client privileged
documents. After that hearing (as the court recites in the ruling
now on appeal), “instead of producing the draft of the Jones
versus PwC complaint,” the City continued to list documents on
its privilege log that the court had ordered the City to produce
(April 2017); responded to ensuing requests for production of
documents transmitted between counsel for the Los Angeles
Department of Water and Power (LADWP) and Mr. Jones[’s]
counsel by claiming (as it turns out, falsely) only one responsive
document existed (June 2017); continued to assert privilege
claims regarding drafts of the Jones v. PwC complaint
(September 2017); and opposed PwC’s second motion to compel by
arguing PwC’s suggestion of collusion in the Jones class action
was in bad faith (November 2017).
On December 4, 2017, there was a hearing on PwC’s second
motion to compel, which was made on the same basis as the first.
Among the many items of discussion at that hearing were
24 documents the City had previously listed as work product, but
the City now claimed were protected by attorney-client privilege,
one of which was the Jones v. PwC complaint. The trial court

4
questioned Paul Paradis, the City’s special counsel, about the
document. Mr. Paradis answered, saying he drafted the
complaint on behalf of the City. The court asked, “What are you
doing as a city attorney drafting a complaint on behalf of
Mr. Jones?” and “Is the city attorney’s office authorized to file
complaints on behalf of ratepayers?”
As the court ultimately discovered—but not until after
many more motions and hearings at which the City abused the
discovery process by (among other things) raising other false
privilege claims—Mr. Paradis lied to the court about the purpose
of drafting the Jones v. PwC complaint. He dodged the court’s
question about why, if the draft was a matter of exploring legal
theories as Mr. Paradis claimed, Mr. Jones’s name was on the
caption instead of John Doe. The court said, “I don’t quite
understand the setup here as to what the attorney was drafting,
on behalf of whom. So I think some more submission ought to be
made on that.” PwC reminded the court that the City had the
burden to prove privilege, but nonetheless said PwC was
prepared to take a deposition of the person most qualified (PMQ)
to testify about the circumstances surrounding the creation of the
complaint. The court told PwC, “I think you have to do it,
because what we heard today was that the City[’s] attorney
himself drafted the complaint. Now we have to find out on behalf
of whom or what were the circumstances.” In January 2018, the
court ordered the PMQ deposition.
That was the beginning of a long saga of motions and
hearings demonstrating, in retrospect, the City’s continuous
misuses of the discovery process in an effort to prevent the
disclosure of the Jones v. PwC complaint and the related
misconduct of Mr. Paradis and others.

5
 PwC served the PMQ deposition notice, identifying topics
for testimony and documents to be produced. Although the court
had ordered the PMQ deposition in January 2018, the City moved
to quash the deposition notice in April 2018 by asserting it was
“unnecessary.” In May 2018, PwC filed a motion to compel
compliance with the court’s order and to strike the City’s motion
to quash. These motions were heard in June 2018. The court
stated that it “ordered the deposition already. I don’t think it’s
necessary to issue a new order to state that I really mean what I
already said. [¶] So the court is going to deny the motion to
compel compliance,” as being “moot, or surplusage. Court’s
already ordered the deposition to go forward.” The court then
asked the City if it was going to produce the witness; Mr. Paradis
said yes, and that the City would withdraw the motion to quash.
Nevertheless, the City intensified its efforts to prevent
disclosure of the draft Jones v. PwC complaint and how it came to
be in the files of the City Attorney’s office. The City produced a
witness in September 2018, Thomas Peters, chief assistant city
attorney, as its PMQ to testify about the City’s drafting of the
Jones v. PwC complaint. But Mr. Peters testified, in effect, that
he knew nothing. He brought no documents in response to the
production request in the PMQ notice, and he testified he did not
look for any. He testified, “I did nothing to prepare myself . . . .”
He professed no memory when asked specific questions about the
draft Jones v. PwC complaint. He refused to answer questions,
for example, about who made the decision to identify Mr. Jones
as the named plaintiff in the draft complaint (which he said was
a “thought experiment,” testimony that was later proven false by
documentary evidence). Then counsel and Mr. Peters abruptly
walked out of the deposition.

6
 As the court later described it: “Mr. Peters . . . was not
prepared for his deposition. He did not review the complaint to
prepare. Apparently the last time he reviewed it was three years
ago in 2015, and apparently the decision was made purposely not
to review documents, so he would not be able to answer the
questions.” Mr. Peters “declined to answer questions by
instruction of counsel. The City unilaterally ended the
deposition, thus avoiding potential disclosure of the pre-April 1,
2015, relationship between attorney Paradis and attorney
Landskroner.” (April 1, 2015, is the date the Jones class action
against the City was filed, and Mr. Landskroner is the Ohio
attorney who filed it.)
In November 2018, the City moved for a protective order to
prohibit continuing the deposition, and PwC filed a motion to
compel the deposition. These motions generated two hearings, on
December 5 and December 12, 2018. The rulings at those
hearings are reflected in a 10-page order, issued January 24,
2019, granting PwC’s motion to compel the PMQ deposition,
denying the City’s motion for a protective order, ordering
production of documents in various categories including
documents exchanged between Mr. Jones or his counsel and
LADWP prior to April 1, 2015, and specifying questions to be
answered by the witness. The court also ordered the depositions
of Mr. Landskroner and Mr. Jones.
The order was issued after unsuccessful objections by the
City to PwC’s proposed order, at yet another hearing on
January 23, 2019, at which the City came up with a new theory,
claiming a “common interest” privilege in documents exchanged
between Mr. Jones or his counsel and LADWP or special counsel
or the City Attorney’s office. The trial court had this to say about

7
that in its sanctions order: “As I recall, that was a hearing which
I inquired the basis for this common interest privilege and
counsel for the City could not provide any authority, couldn’t
articulate what exactly that interest was, except that it was
apparently a common interest in orchestrating a settlement. [¶]
Of course, if that was true, every plaintiff and every defendant
who ever settled a case would have a common interest and could
assert all kinds of privileges, but there is no authority for that
type of asserted common interest privilege.”
Notably, the December 2018 hearings on the City’s motion
to quash and PwC’s motion to compel occurred a full year after
the trial court had ordered the PMQ deposition. Those hearings
reflect the continued duplicity of the City’s special counsel, and
the court’s recognition of that duplicity. On December 5, the
court stated, “Well, let me get back to the initial question that
was asked months ago; and that is, how did this complaint come
about?” And, in an exchange with Mr. Kiesel, “you’re saying that
the City retained services of counsel to draft a complaint against
itself?” Mr. Kiesel said he could not respond without violating a
privilege. The court warned counsel that PwC’s counsel was “not
going away, and you would think that counsel would want to
cooperate and get this over as quickly as possible rather than
make it more difficult and drag it out.” If the information was
not forthcoming from the City, the court warned, then “he’s going
to take the deposition of Mr. Antwon Jones, he’s going to take the
deposition of the attorney in Ohio [Mr. Landskroner], and we’re
going to find out what happened here.”
At the continued hearing on December 12, 2018,
Ms. Tufaro, another special counsel for the City, stated the City
was refusing to produce (among other things) written agreements

8
or understandings between the City and Mr. Jones prior to
April 1, 2015, asserting yet another new theory, the “potential
mediation privilege.” When the court asked Ms. Tufaro whether
Mr. Jones was ever represented by the City Attorney’s office “or
counsel for the City,” she answered, “No, Your Honor.” Later,
after a recess, Mr. Kiesel revealed to the court that “special
counsel did have a relationship with Mr. Jones,” but “[t]he City
Attorney’s office never had any relationship to Mr. Jones at all.”
This was the first time the City apprised the court of
Mr. Paradis’s relationship with Mr. Jones. But, far from coming
clean, the City tried to conceal its own complicity by laying
everything at the door of a few special counsel “rogue actors,” all
purportedly unbeknownst to the City Attorney’s office.
At the January 23, 2019 hearing mentioned above, in the
course of questioning the City’s counsel about the claim of a
common interest privilege, the court said: “So you’re telling me
the whole filing of the lawsuit was a setup?” Mr. Paradis said he
was not saying that, but refused to answer the court’s following
questions, asserting privilege. After Mr. Paradis said that city
attorney Tom Peters directed him to refuse to allow Mr. Peters to
answer the question “during what period of time was Mr. Jones
represented by Mr. Paul Paradis,” the court turned to Mr. Kiesel
to ask whether the City had an ethics department. The court
commented that an internal investigation should be considered
“as to what happened here.” The court further stated it had
already ordered the PMQ deposition to go forward and “I don’t
want to hear reassertion of the same objections over and over
that have been overruled.” And, “if we have a continuous
assertion of inappropriate objections, the remedies of sanctions
and contempt are available.”

9
 On February 12, 2019, the City produced only the caption
and title page of the draft Jones v. PwC complaint. On
February 26, 2019, James Clark, chief deputy city attorney,
appeared as the City’s new PMQ witness. Mr. Clark testified
that in preparation for his deposition, he interviewed
Mr. Paradis, Ms. Tufaro, Mr. Kiesel, Mr. Peters, and others. He
took notes at these interviews, but he discarded them before the
deposition. Among other things, he “acknowledged his knowledge
prior to the filing of the Jones versus City of Los Angeles
complaint that Paradis had recruited Landskroner to sue the
City.”
At a lengthy status conference hearing on March 4, 2019,
PwC reported the City had agreed to produce the Jones v. PwC
complaint. (In a March 1, 2019 brief on privilege issues
requested by the court, the City continued to assert the common
interest privilege, “but admitted in writing it was made aware of
the Paradis/Jones attorney-client relationship during its first
meeting with Paradis and Kiesel in December, 2014.”) Under
questioning by the court, Mr. Peters stated the City agreed to
waive attorney-client and work product privileges with respect to
the Jones v. PwC complaint, but not with respect to any other
document.
A great deal more was discussed at the March 4, 2019
hearing, with Mr. Landskroner asserting Fifth Amendment
privileges when asked about his fees for the class action
settlement and the existence of a fee-splitting arrangement with
Mr. Paradis. PwC told the court that Mr. Clark testified at his
deposition that he took notes of interviews with witnesses before
his deposition but destroyed the notes before the deposition.
Among other things, the court ordered the preservation of

10
documents; ordered depositions of Mr. Landskroner and
Mr. Kiesel to begin in the following days; and indicated its
intention to restrain the City from issuing any funds to
Mr. Landskroner and Mr. Paradis and to appoint a special
master to audit all payments to them.
I find it notable that, as I mentioned earlier, the trial court
expressly stated, three months earlier at the December 5, 2018
hearing, that the issue of sanctions would be deferred and could
be brought again “after we get the final information with regard
to this particular issue on privilege asserted concerning the Jones
versus PwC complaint.” That did not come until, after the
March 4 hearing, the City finally produced the draft complaint,
on March 11, 2019. And, at a hearing on March 19, 2019, PwC
indicated its intention “to make one or more motions, including a
motion for case terminating sanctions.” This is consonant with
the court’s December 5, 2018 statement that a motion for
sanctions could be brought again after the privilege issue was
resolved.
But the City’s discovery abuses did not end with its
production of the Jones v. PwC complaint in March 2019. That
was only the beginning of discovery disclosures—continuously
resisted by the City—that would ultimately lead the court to
conclude that PwC had made a prima facie showing of fraud on
the court by the City. PwC was obliged by the City’s
intransigence after the City produced the Jones v. PwC complaint
to take many more depositions that, among other things, would
reveal the falsity of the City’s claim that the conduct finally
uncovered in March 2019 was attributable only to so-called
“rogue actors” in special counsel’s office.

11
 These post-March 2019 depositions were critical to show
PwC was entitled to terminating sanctions. Obtaining the
Jones v. PwC complaint alone did not explain how it came to be
in the City Attorney’s files, and did not and could not disclose the
story of collusion, lies and coverups within the City Attorney’s
office. Only the deposition testimony of witnesses—lawyers—
within the City Attorney’s office could do that. The City’s
obstruction after it finally produced the Jones v. PwC complaint
is every bit as shocking as its previous conduct.
I have already described the PMQ deposition of Mr. Peters,
for which Mr. Peters did not prepare, refused to answer questions
or produce documents, and walked out. Then, after the court
ordered a continued PMQ deposition, the City produced a new
PMQ witness, Mr. Clark, who in March 2019 (after a meeting
with six other attorneys for the City), made 54 changes to his
deposition testimony.
As the trial court described it, in the errata to Mr. Clark’s
deposition testimony “Mr. Clark recanted or disclaimed
numerous material aspects of his February deposition testimony
thus necessitating two further dates of deposition testimony from
Mr. Clark.” In the errata, Mr. Clark (according to a PwC
declaration) recanted or qualified portions of his February
testimony that would have undermined the City’s position that it
was not aware of any improper conduct involving the settlement
of the Jones class action. The trial court stated that during the
continued PMQ deposition in April 2019, “Mr. Clark recanted
additional prior testimony which in turn necessitated PwC taking
an additional 18 fact witness depositions.” In other words, the
City’s years-long course of obstruction, obfuscation and outright
lies continued unabated after the March 2019 production of the

12
Jones v. PwC complaint, demonstrating (in addition to the City’s
perfidy) the wisdom of the trial court’s decision not to determine
sanctions on a motion-by-motion basis but rather to await PwC’s
development of the necessary evidence for the terminating
sanctions it hoped to obtain.
Meanwhile, at a hearing on March 13, 2019, after lengthy
discussion, the court ordered Mr. Jones to produce (over
Mr. Paradis’s objection) a draft of the Jones v. PwC complaint
that Mr. Paradis had sent to Mr. Jones on January 9, 2015. The
court concluded that was a communication with an adverse party
because Mr. Paradis was representing the City at the same time,
resulting in waiver of attorney-client and work product
privileges. The court further found that PwC “has presented
sufficient evidence to establish a prima facie case of fraud by the
City and its counsel, fraud on Mr. Jones, possible fraud on the
public, and possible fraud on the court.” The court stated that
“[a]t this time [the finding was] limited to [this] particular
document.”
At hearings during the courthouse deposition of Mr. Kiesel
in May 2019, “the court permitted Mr. Kiesel’s voluntary
production of multiple documents over which the City and
Mr. Paradis had asserted objections finding that PwC had made a
showing, a prima facie showing, of fraud.” Still more hearings
ensued, in July and August 2019.
In July 2019, PwC filed two more motions to compel, one
concerning documents withheld on the basis of a claimed
mediation privilege, and another concerning communications
“relating to special counsel Paradis’ representation of Jones and
the Jones settlement.” In its opposition on July 12, 2019, the
City continued to insist that “the City was unaware of [the

13
misconduct of former special counsel] or their entirely
unauthorized activities.”
The July 25, 2019 hearing concerned PwC’s motion to
overrule the City’s mediation privilege objections, involving
six mediation sessions on the settlement of the Jones class action.
At the hearing, both Mr. Jones and the City waived the
mediation privilege, but the City contended the consent of all
parties and the mediator was required. The court ordered all
documents previously withheld on grounds of mediation privilege
to be produced. The court’s usual thorough findings and analysis
included that, for there to be a mediation privilege, there must
have been a mediation between adversaries. Here, there was
“a collusive play acting,” a “charade” that was “akin to a fraud on
the court.”
The August 12, 2019 hearing involved PwC’s motion to
compel further discovery responses to requests for production of
documents served in March 2019, relating to the Jones v. PwC
complaint, “which then morphed into the Jones versus City of Los
Angeles action,” such as communications between the City and
either Mr. Paradis or Mr. Kiesel relating to either of those cases.
PwC made a lengthy argument summarizing the City’s discovery
abuses, to show that PwC made a prima facie case for the crime
or fraud exception under Evidence Code section 956 and asking
the court to order production of the documents and not the “drip,
drip, drip” the City had been providing. PwC’s counsel observed:
“We need to get the documents produced so we can make our
motion [for sanctions].”
The City’s special counsel (who replaced the Kiesel-
Paradis-Tartufo group in March 2019) argued he and his team
had reviewed thousands of documents and “there is not a single

14
one that any of us is aware of that would demonstrate that the
City itself, as opposed to its former now discredited outside
counsel, had any knowledge or involvement in any scheme by
which the City was sued.” Counsel argued, among other points,
that Mr. Kiesel’s deposition testimony implicating various city
attorney personnel in the scheme should be discredited. When
the court grilled counsel on what the City knew, counsel argued
that, assuming the City was aware, awareness is not
acquiescence.
After lengthy argument, the court ordered production of the
documents. Among many other points, the court cited
Mr. Kiesel’s testimony that Mr. Clark and Mr. Peters met with
Mr. Kiesel and Mr. Paradis in February 2015, after Mr. Paradis
circulated the Jones v. PwC complaint to the City Attorney’s
office, and they “not only approved the plan to use Jones as a
named plaintiff in a comprehensive action to be filed against the
City, but that attorney Paradis was directed to do so by the City.”
The court found there was considerable prima facie evidence of
the City’s complicity, such that “to the extent there was a[n]
[attorney-client] privilege, that privilege has been waived.”
On August 21, 2019, the court ordered the City, which did
not object, to substantially complete document production by
August 31, 2019.
That brings us to the last hearing before (one day before)
the City dismissed its complaint. On September 25, 2019, the
City still had not completed its production of documents that
PwC requested almost six months earlier, nor a set requested in
May. PwC also advised the court it had recently served a request
for production of 30 specific documents that had been identified
by witnesses during the ongoing depositions. PwC referred to

15
“documents that are long overdue” and certain depositions,
stating that “we would like to have that done in the next three
weeks so we could bring our motion for case terminating and
monetary sanctions.”
The court set October 15 as the end date for “complete
production of all the documents the City has in custody and
control,” as well as a detailed privilege log if needed. That never
happened, because the next day the City voluntarily dismissed its
complaint against PwC, as the court later stated, “avoiding
production of documents covered by the court’s July 25 and
August 12 orders.” The dismissal was entered on October 2,
2019.
PwC did not file its motion for sanctions until nine months
later, on June 29, 2020. In the interim, PwC undertook efforts
spanning October, November and December 2019 to compel the
discovery that had been ordered or instituted before the City
dismissed its complaint. PwC’s position was that the
uncompleted production of documents requested by PwC between
March 29 and September 13, 2019, included documents falling
within the crime-fraud exception to the attorney-client privilege.
PwC needed those documents because “that presumably would
directly highlight the City’s knowledge of and role in the collusive
Jones v. City of Los Angeles action,” and PwC never had the
chance to confront City witnesses with documents which PwC
contended “directly undercut the City’s false narrative of rogue
Special Counsel.”
PwC’s efforts on this score ultimately failed. At a hearing
on December 19, 2019, the court observed that “[t]his discovery
motion is obviously a prelude to the sanctions motion to be filed
by Pricewaterhouse.” The court concluded it “would be

16
inappropriate and unauthorized to create a new round of
litigation over discovery for the purposes of litigating a discovery
motion for sanctions after dismissal.” An order to that effect was
entered on January 15, 2020.
2. The Motion for Sanctions and the Ruling
The majority has described PwC’s June 29, 2020 motion for
monetary sanctions, seeking over $8 million, and the court’s
award of $2.5 million. The trial court recited the “primary
circumstances” in support of the award.
The court explicitly identified its grants of three of PwC’s
motions to compel production of documents, on March 6, 2017,
July 25, 2019, and August 12, 2019. The court referred to the
City’s relogging of documents in April 2017 as privileged “instead
of producing the draft of the Jones versus PwC complaint.” The
court identified the City’s June 2017 response to PwC’s request
for documents transmitted between LADWP’s counsel and
Mr. Jones’s counsel before April 1, 2015, claiming there was only
one responsive document, and then finding in a production in
2019 (more than a year and a half later) that there were multiple
responsive documents. The court recited the City’s continued
unfounded assertion of privilege claims in September 2017, and
the City’s claims in November that PwC’s suggestion of collusion
in the Jones class action was in bad faith. The court cited its
order for the PMQ deposition on December 4, 2017; the City’s
failure to apprise the court at that hearing of the attorney-client
relationship between Mr. Paradis and Mr. Jones; the ensuing
motions and hearings that included false statements to the court
that Mr. Paradis never represented Mr. Jones; and its
January 24, 2019 order, more than a year later, granting PwC’s
motion to compel the PMQ deposition, denying the City’s motion

17
for a protective order, and overruling the City’s objections to
requests for production at the PMQ deposition. The court cited
the City’s unfounded claims of a common interest privilege
beginning in January 2019.
The court’s list of the City’s discovery abuses goes on, and it
includes the March and post-March 2019 motions and hearings,
including the court’s orders for depositions, the City’s assertion of
a mediation privilege, and the court’s findings on March 13 and
again on August 12 of a prima facie case of fraud by the City.
It is on that basis—a basis I view as manifestly sound—
that the court found there was “a serious abuse of discovery by
the City and its counsel”; “PWC has been required to expend
substantial number of hours because of the abuse in discovery”;
and “[t]his serious abuse merits considerable sanctions.”
3. The City’s Appeal
The City in its opening brief on appeal asserted only two
claims of error. The first was the jurisdictional issue rejected by
the majority, with which I concur. The City’s only other
argument was that, even if the court had jurisdiction, PwC’s
motion was untimely, which the majority also rejected, with
which I concur.
Notably, the City did not assert in its opening brief that it
did not engage in discovery abuses for which sanctions are
recoverable under sections 2023.010 and 2023.030. And while
the City argued in the trial court that the hours spent and the
amount of fees sought on the motion for sanctions were excessive,
the City did not appeal the order on the ground that the
$2.5 million award was excessive—only that it was untimely.
Only now, at the suggestion in this court’s Government Code
letter after briefing was completed, does the City maintain the

18
trial court erred in relying on sections 2023.010 and 2023.030 “as
a purported basis for imposing sanctions.” I disagree with that
claim, as I do with the majority’s unprecedented statutory
analysis.
4. The Statutory Issue
At the December 19, 2019 hearing at which the court
denied PwC’s motion to compel responses to previously ordered
discovery, and acknowledged PwC would be filing a motion for
sanctions, the court said this: “I recognize this case is sui
generis, I think everyone recognizes that.”
The majority does not. Instead, the majority concludes the
trial court abused its discretion, on the ground that “[a] decision
‘that transgresses the confines of the applicable principles of law
is outside the scope of discretion’ and is an abuse of discretion.”
(New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th
1403, 1422 (New Albertsons).) The “applicable principle[] of law”
that the trial court transgressed, according to the majority, is a
principle announced for the first time today—one that has never
before been applied in any published opinion or argued by
counsel, one that was not raised in the trial court below, and one
that was not raised by the City in this appeal.
I see no basis in statutory law, case law, or common sense
to conclude, as the majority does, that sections 2023.010 and
2023.030 “do not authorize the court to impose sanctions in a
particular case,” or that section 2023.030 does not
“independently” authorize the court to impose sanctions for
discovery misconduct. (Maj. opn. ante, at pp. 39, 46.) I read
those statutes just as other courts, up to now, have universally
done.

19
 There are several areas of legal precedent that support my
conclusion. There is one case in particular of egregious discovery
abuse with similarities to this case (though not nearly so deeply
disturbing as the City’s abuses in this case), where the court
found it was an abuse of discretion not to impose sanctions under
section 2023.030. There are cases that hold the “[t]o the extent
authorized” language of section 2023.030 simply refers to
authority to impose the type of sanction in question (here,
monetary). And there are still other cases where the courts
approve the imposition of various types of sanctions under
section 2023.030 where a party has engaged in a pattern of
discovery abuse, and do so without regard to the prerequisites for
sanctions specified under a particular discovery method. In my
view, these authorities leave no room for the majority’s newly
minted holding that the trial court acted “outside the bounds of
the court’s statutory authority” (maj. opn. ante, at p. 49).
a. The Kwan case
I begin with Kwan Software Engineering, Inc. v. Hennings
(2020) 58 Cal.App.5th 57 (Kwan), as to which the majority says
little more than it “respectfully disagree[s].” (Maj. opn. ante, at
pp. 59, 57.) I see very little daylight between this case and Kwan,
which likewise involved conduct described as “extensive and
deliberate misconduct” and “egregious litigation conduct that
included abuses of the discovery process” (Kwan, at p. 75), for
which millions of dollars in sanctions were sought (id. at p. 76).
(Defense counsel argued at one hearing: “ ‘If with our initial
discovery way way back in the beginning of this case the truth
had been told instead of the falsehoods, the entire case would
have taken a very very very different turn and we would not have
incurred four million [dollars].’ ” (Id. at p. 68.)) The trial court in

20
Kwan granted terminating sanctions for the plaintiffs’ fraud on
the court but denied monetary sanctions. The Court of Appeal
found the denial of monetary sanctions, sought under
section 2023.030, was an abuse of discretion. (Kwan, at pp. 62,
77.)
Kwan explained the trial court was mistaken in concluding
that any monetary discovery sanction would constitute
punishment. (Kwan, supra, 58 Cal.App.5th at p. 76.) The trial
court’s order for terminating sanctions was based on the
plaintiffs’ fraud on the court, “not on the discovery misconduct
they visited on defendants.” (Ibid.) Kwan found “no authority for
the proposition that the trial court’s imposition of other
sanctions, such as terminating sanctions, has any bearing on the
legal question of whether defendants were also entitled to an
award of the compensable fees mandated by section 2023.030(a).”
(Ibid.)
Further, Kwan stated, “[w]hile the consideration of
punishment might well influence the amount of monetary
sanctions the trial court should award, it has no bearing on the
threshold question of whether defendants were statutorily
entitled under section 2023.030(a) to at least some monetary
sanctions for the reasonable attorney fees they incurred as a
result of [the plaintiffs’] misuse of the discovery process.” (Kwan,
supra, 58 Cal.App.5th at p. 77; see ibid. [“it was arbitrary and an
abuse of its discretion for the trial court to decline to
award any amount of monetary sanctions in light of its explicit
finding that discovery misconduct, in the form of false deposition
testimony and spoliation of evidence, had occurred”].) The Kwan
court emphasized the final sentence of section 2023.030,
subdivision (a): “If a monetary sanction is authorized by any

21
provision of this title, the court shall impose that sanction,”
absent substantial justification or other unjust circumstances.
(Kwan, at pp. 73–74, italics omitted & underscoring added.)
b. The London line of cases
No case precedents actually support the majority’s novel
conclusion that sections 2023.010 and 2023.030 do not authorize
a court “to impose sanctions in a particular case.” (Maj. opn.
ante, at p. 39.) The majority cites London v. Dri-Honing Corp.
(2004) 117 Cal.App.4th 999 (London) and New Albertsons, supra,
168 Cal.App.4th 1403, but both of those cases simply tell us that
the language in question—“[t]o the extent authorized by the
chapter governing any particular discovery method”—in
section 2023.030 refers to the type of sanction that may be
imposed, and not to the procedural requirements contained in the
statutes governing particular discovery methods.
London found the “[t]o the extent authorized” language of
what is now section 2023.030 “simply refers to whether the
discovery method statute authorizes a type of sanction (i.e.,
monetary, issue, evidence, terminating, or contempt) for a
particular misuse of the discovery method.” (London, supra,
117 Cal.App.4th at p. 1006.) The London court explicitly rejected
the notion that the “[t]o the extent authorized” language “absorbs
all the procedural requirements of the particular discovery
method statute.” (Id. at p. 1005.)
The issue in London was the defendant’s claim that the
plaintiff’s request for monetary sanctions was untimely because it
was not included in his motion to compel further responses to an
inspection demand under the statute governing that particular
discovery method. (London, supra, 117 Cal.App.4th at p. 1002.)
The court disagreed. It stated the “pivotal language to be

22
interpreted here” was the “[t]o the extent authorized” language of
what is now section 2023.030. (London, at p. 1004.) “A better
reading is that this language simply refers to whether a
particular discovery method statute authorizes a specific type of
sanction (i.e., monetary, issue, evidence, terminating, or
contempt sanctions).” (Id. at p. 1005.)
The London court explained that the general structure of
the Discovery Act supported its conclusion. Among other points,
the court cited the “emphasis on imposing discovery monetary
sanctions against abusive parties.” (London, supra,
117 Cal.App.4th at p. 1006.) The court described the structure of
the Discovery Act, observing that section 2023 (now sections
2023.010 and 2023.030) generally identifies possible discovery
abuses and the types of sanctions that exist, and that the statute
governing a particular discovery method specifies which of those
sanctions applies to the particular abuses of that method.
The court found that structure suggested the “[t]o the extent
authorized” language merely referred to the type of sanction.
(London, at p. 1006.) The court found its interpretation was
further supported by language in what is now subdivision (a) of
section 2023.030, “stating that ‘[i]f a monetary sanction is
authorized by any provision of this [title], the court shall impose
that sanction’ unless” it is unjust to do so. (London, at p. 1006.)
That language, the court said, “works in tandem with” the “[t]o
the extent authorized” language. (Ibid.)
New Albertsons applied the same principle, and expressly
relied on London. New Albertsons found that evidence and issue
sanctions in that case were not authorized. (New Albertsons,
supra, 168 Cal.App.4th at p. 1422.) Specifically, the trial court
had no statutory authority to impose evidence and issue

23
sanctions “absent a failure to obey an order compelling
discovery . . . .” (Id. at p. 1408.) The court explained that “[t]he
statutes governing each discovery method authorize particular
types of sanctions in particular circumstances.” (Id. at p. 1423.)
The specific statutes governing the inspection demand at issue in
New Albertsons stated that a court must impose a monetary
sanction against a person who unsuccessfully makes or opposes a
motion to compel a further response to an inspection demand, but
provided for imposition of an issue, evidence or terminating
sanction “only ‘[i]f a party fails to obey an order compelling’ ” the
discovery. (Id. at pp. 1423–1424, citing specific discovery
statutes.) New Albertsons is simply another application of the
London principle.
The majority also cites Zellerino v. Brown (1991)
235 Cal.App.3d 1097 (Zellerino). Like London and New
Albertsons, Zellerino says that former section 2023,
subdivision (b), now section 2023.030, “limits the permissible
sanctions to those ‘authorized by the [chapter] governing any
particular discovery method.’ ” (Zellerino, at p. 1114.) The
London court also cited Zellerino as supporting London’s
interpretation, observing that in Zellerino, “the language [of the
statute] involving the phrase ‘to the extent authorized’ was used
not to invoke procedural time limits of the governing discovery
method statute, but to identify what types of sanctions a given
discovery method statute authorized for a particular abuse.”
(London, supra, 117 Cal.App.4th at p. 1007, citing Zellerino.) 2

2 In Zellerino, the plaintiff failed to comply with multiple
requirements of the statutes on exchange of expert witness
information (Zellerino, supra, 235 Cal.App.3d at p. 1114), and her
conduct fit into several of the categories of misuse of the

24
 I have no disagreement with London or New Albertsons or
Zellerino, and I do not see how they offer any support for the
majority’s position. They stand for the general proposition that a
particular discovery method must authorize a particular type of
sanction before a court can impose that sanction under
section 2023.030. They do not support the majority’s conclusion
that this case must go back to the trial court “for determination
under the correct law” (maj. opn. ante, at p. 3).
I understand the majority to mean that the trial court,
instead of assessing the City’s course of conduct throughout this
litigation, must instead assess compliance with the specific
procedures or prerequisites of the particular discovery method in
connection with each individual motion that PwC successfully
made or defended against—and then determine expenses
reasonably incurred in connection with that item. (See maj. opn.
ante, at pp. 49–51.) That approach ignores the principle applied
in London and New Albertsons, and consequently ignores the fact
that monetary sanctions for the discovery abuses found by the
trial court—withholding documents and asserting false claims of
privilege to prevent document production and depositions—are
authorized by other provisions of the Discovery Act. Indeed, the
majority describes provisions authorizing monetary sanctions,

discovery process in section 2023 (now section 2023.010).
(Zellerino, at p. 1114.) The specific statute governing exchange of
expert witness information provided for the exclusion from
evidence of the expert’s opinion for such failures. (Ibid.)
The court concluded, “[g]iven the near-total failure to comply
with the requirements of the statute,” that “the order preventing
[the plaintiff] from introducing expert testimony was within the
court’s discretion, even though the effect was that it terminated
her lawsuit.” (Id. at p. 1117.)

25
under sections of the Discovery Act other than sections 2023.010
and 2023.030, that authorize the sanctions award in this case.
(Maj. opn. ante, at pp. 40, 44, citing provisions of the chapters on
inspection and production of documents and oral depositions.)
In short, monetary sanctions are authorized in the various
discovery statutes for the kinds of discovery violations the trial
court found to have occurred. In my view, no more is required to
enable the trial court to award monetary sanctions under
section 2023.030 for the egregious and ongoing misuses of the
discovery process at issue here.
c. Cases imposing sanctions under
section 2023.030
The majority says cases are not authority for propositions
not considered, and the numerous cases that have determined
sanctions were properly imposed under section 2023.030 “fail to
mention” the introductory, “[t]o the extent authorized,” language.
In those cases, the majority tells us, “the facts reflect that
sanctions were authorized by a discovery provision other than
sections 2023.010 and 2023.030, and the court’s authorization to
impose sanctions was not at issue.” (Maj. opn. ante, at pp. 52–53,
citing cases.)
Let us not forget that, except for the City’s jurisdictional
and timeliness claims, the trial court’s “authorization to impose
sanctions” was never asserted as an issue in the trial court or on
appeal, until the majority put it at issue with its own novel
statutory analysis, never before argued by counsel and never
before considered by any other California court.
I will not describe all the cases that “fail to mention” the “to
the extent authorized” language of section 2023.030, thus making

26
them, according to the majority, inapt as precedents. But here is
one example.
In Pratt v. Union Pacific Railroad Co. (2008)
168 Cal.App.4th 165 (Pratt), the trial court found the defendant’s
actions “circumvented the established procedures for civil
discovery under California law”; granted a preliminary injunction
prohibiting the defendant from conducting a disciplinary
proceeding or from compelling the plaintiff to attend an
extrajudicial medical examination; and awarded sanctions. (Id.
at p. 170.) The Court of Appeal “deem[ed] the temporary
injunction a protective order” (id. at p. 182), and found monetary
sanctions were not an abuse of discretion (ibid.). Citing
sections 2023.010 and 2023.030, the court stated: “[T]he trial
court has discretion to impose monetary sanctions when one
party persists, over objection and without substantial
justification, in an attempt to obtain information outside the
scope of permissible discovery.” (Pratt, at p. 183.)
Pratt explained: “That is precisely what Union Pacific did.
Pratt’s counsel objected to Union Pacific’s ex parte demands for
medical information and made every effort to secure Union
Pacific’s agreement to postpone the disciplinary hearing until the
court heard his motion for injunctive relief. Instead, Union
Pacific gave equivocal responses while failing to agree to the
requested postponement, forcing counsel to seek a temporary
restraining order. [¶] This record clearly supports the trial
court’s finding that Union Pacific’s actions circumvented the
discovery process and were without substantial justification.”
(Pratt, supra, 168 Cal.App.4th at pp. 183–184.)
No other provisions of the Discovery Act were cited in
Pratt, and I for one find it hard to see how the distinctive facts in

27
Pratt “reflect that sanctions were authorized by a discovery
provision other than sections 2023.010 and 2023.030” (maj. opn.
ante, at p. 52).
The majority is at great pains to distinguish the case here
from several other cases where the courts have relied on
section 2023.030 and have dispensed with the prerequisites for
sanctions under a particular discovery method (such as the
requirement to file a motion to compel). (Maj. opn. ante, at
pp. 53–59.) Most of these cases involve the imposition of evidence
or issue preclusion sanctions. An example is Pate v. Channel
Lumber Co. (1997) 51 Cal.App.4th 1447 (Pate). There, the
defendant had assured the plaintiff repeatedly, and falsely, that
all relevant documents had been produced, and then sought,
midtrial, to introduce documents not provided during discovery.
(Id. at p. 1452.) The trial court found the defense had “played
fast” with the discovery rules and “had made an ‘absolute and
deliberate attempt to thwart discovery for the purpose of gaining
a tactical advantage at . . . trial’ ” (id. at p. 1454); “given the late
date at which the misuse of discovery procedures surfaced,” the
court precluded the defendant from introducing any documents
not provided before trial (id. at p. 1453).
Pate rejected as “specious” the defendant’s argument that
the trial court had no authority to impose an evidentiary sanction
because the plaintiffs did not move prior to trial to compel further
responses for production of documents. (Pate, supra,
51 Cal.App.4th at p. 1456.) The plaintiffs had served three
separate requests for production of documents and received
repeated assurances that all documents had been produced.
Citing what is now section 2023.030, subdivision (c), the court
concluded, “Plaintiffs were not required to move to compel further

28
responses as a prerequisite to invoking the trial court’s discretion
in imposing a discovery sanction.” (Pate, at p. 1456.)
The majority says Pate and two other similar cases
involving “false answer[s] concealing the existence of discoverable
information” are “inapplicable.” 3 (Maj. opn. ante, at pp. 54, 56.)
This case is distinguishable, the majority says, because the City’s
false answers to discovery requests—which continued over a two-
year period—did not cause PwC “to stop seeking discovery of the

3 The other cases are Sherman v. Kinetic Concepts,
Inc. (1998) 67 Cal.App.4th 1152, 1163, 1155–1156, 1162
(monetary sanctions were “absolutely mandated” under former
section 2023 (now sections 2023.010 and 2023.030) where the
defendant’s discovery abuse, which “subverted justice,” was not
discovered until after the verdict against the plaintiffs; “the court
had not only the power, but the duty to sanction [the defendant],
in a monetary amount at least sufficient to cover all the costs
incurred by the [plaintiffs], including attorney fees, in going
through a trial which must now be redone”; the defendant’s
“continuing disregard of its discovery obligations, as well as its
witnesses’ utter lack of candor, if not outright lies, at trial, clearly
entitled the [plaintiffs] to sanctions”); and Vallbona v.
Springer (1996) 43 Cal.App.4th 1525, 1545–1546, 1543 (the trial
court properly imposed an evidence sanction under section 2023
(now section 2023.030) “without a prior order to compel
defendants’ compliance with discovery,” notwithstanding the
requirements of the statute on inspection demands; requiring the
plaintiffs to seek a formal order to compel the defendant to
comply with discovery would have been futile because he had
claimed the requested documents were stolen; the trial court
“told defense counsel it was ‘a total reprehensible violation of this
court’s rules, practices, and policies for a litigant to withhold
documentation that is the subject of discovery and then
surprisingly and unexplainedly find them during the trial’ ”).

29
information,” and instead PwC “persisted by using the
procedures available to obtain discovery.” (Maj. opn. ante, at
p. 55.) I am unable to grasp that distinction or to understand
why PwC’s continuous efforts to obtain documents, in the face of
the City’s continuous obstruction of those efforts, has any bearing
on the trial court’s discretion, universally recognized until now, to
award monetary sanctions under section 2023.030.
Then the majority turns to still other cases allowing
sanctions under section 2023.030 or its predecessor when “the
responding party’s actions have made discovery unavailable, such
as through spoliation of evidence.” (Maj. opn. ante, at p. 56.) An
example the majority cites (which does not involve spoliation of
evidence) is Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th
1202 (Karlsson), where the trial court’s evidence and issue
preclusion sanctions “were based on a pattern of discovery abuse
that effectively led to the loss of various items of evidence.” (Id.
at p. 1214.) The court relied on cases that “have held that
violation of a discovery order is not a prerequisite to issue and
evidentiary sanctions when the offending party has engaged in a
pattern of willful discovery abuse that causes the unavailability
of evidence.” (Id. at p. 1215.)
In Karlsson, the defendant’s discovery abuses resulted in
the “unavailability of evidence” because the discovery cutoff had
passed and trial was imminent, so the plaintiffs “lost the
opportunity to explore fully any leads obtained from discovery
that should have been produced.” (Karlsson, supra,
140 Cal.App.4th at p. 1215; see id. at p. 1216 [the trial court
found that a violation relating to a PMK deposition issue “was
‘part and parcel of a whole history of stonewalling, wild goose
chases, too little, too late,’ ” and the “PMK incident ‘was the last

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straw in a series of violations that kept on continuing and
continuing and continuing’ ”].) 4
The majority also distinguishes cases where the courts
“have imposed sanctions for supplying answers to a deponent
without first requiring the deposing party to file a motion to
compel the answers.” (Maj. opn. ante, at p. 58.) The distinction is
that the present case “does not involve the City’s counsel
coaching a deponent’s answers during deposition.” (Id. at p. 59.)
I cannot see the relevance of that distinction. And anyway, I
think the City instructing witnesses not to answer questions
based on unfounded privilege objections and walking out of a

4 Another of these cases cited by the majority (ante, at p. 57)
is Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin &
Berns (1992) 7 Cal.App.4th 27. In that case, the trial court’s
determination that the plaintiffs misused the discovery process,
and its imposition of an evidence preclusion sanction under
section 2023 (now section 2023.030), was “amply supported” by a
record “replete with instances of plaintiffs’ attempts to delay trial
in this matter and withhold promised items of discovery”
(principally an audit of records). (Do It Urself, supra,
7 Cal.App.4th at pp. 36, 32.) The court rejected the plaintiffs’
claim the trial court abused its discretion because there was no
previous court order on the audit report. (Id. at p. 34.)
In addition to rejecting the claim as a conclusional argument
without citation of authority, the court observed that the legal
authorities requiring disobedience of a court order prior to
imposition of sanctions harsher than monetary sanctions were
distinguishable from the circumstances before the court. (Id. at
pp. 35–36.) The plaintiffs had told the trial court that the audit
that had been promised and said to be almost complete months
earlier (id. at pp. 31–32) “will never be completed” (id. at p. 33),
and so could not be provided, making a formal court order to
comply futile (id. at p. 36).

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deposition midstream is at least as abusive, if not more so, than
coaching a witness.
I further note the Supreme Court’s comments in Cedars-
Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17,
where the court declined to create a tort remedy for intentional
spoliation of evidence. The court discussed the broad range of
potent sanctions for misuse of the discovery process under then-
section 2023, and observed that “[d]estroying evidence in
response to a discovery request after litigation has commenced
would surely be a misuse of discovery within the meaning of
section 2023, as would such destruction in anticipation of a
discovery request.” (Id. at p. 12; see id. at p. 17 [“remedies
already available . . . , especially [the evidentiary inference in the
Evidence Code] and the discovery remedies of Code of Civil
Procedure section 2023, provide a substantial deterrent to acts of
spoliation”].) And yet, so far as I am aware, the chapters of the
Discovery Act governing particular discovery methods do not
mention sanctions for spoliation of evidence.
Moreover, I see no conceivable reason to distinguish
discovery abuse in cases where the abuse succeeds in making
evidence unavailable, and discovery abuse that, after years of
obstruction, fails in the end to avoid production of the sought-
after evidence (and instead leads to the sudden dismissal of the
case by the party who stonewalled discovery orders). Indeed, in
this case, the City did succeed in making evidence related to its
coverup of its participation in the potential Jones class action
fraud unavailable—by dismissing its complaint. 5

5 The majority also expresses its disagreement with Padron
v. Watchtower Bible & Tract Society of New York, Inc. (2017)
16 Cal.App.5th 1246, “[t]o the extent that Padron . . . may be

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 All these cases demonstrate the trial court has discretion to
impose monetary sanctions under section 2023.030, without
regard to the requirements of other sections of the Discovery Act,
when the sanctioned party has engaged in an extensive pattern of
discovery abuse. Of course, the facts of each case are always
different. But there is no reason in logic or common sense to
limit the court’s discretion to circumstances where the pattern of
abuse is such that the evidence no longer exists, or cannot be
obtained, or is concealed until it is too late. Years-long, willful
obstruction of the discovery process ultimately resulting in
voluntary dismissal by the perpetrator of the abuse is equally
egregious.
To summarize: The Kwan case on analogous facts found it
was an abuse of discretion not to award monetary sanctions
under section 2023.030 for the discovery misconduct visited upon
the defendants in that case. The London case tells us the “[t]o
the extent authorized” language simply refers to whether a
discovery method statute authorizes the type of sanction imposed.
Multiple other cases have imposed sanctions under
section 2023.030 without regard to the requirements of specific

read to suggest that the court has inherent authority under its
supervisory powers to award attorney fees as monetary sanctions
for discovery abuse” (maj. opn. ante, at pp. 61–62). In Padron,
the court concluded the superior court was authorized to impose
monetary sanctions of $4,000 per day on a party “who steadfastly
refuses to comply with a discovery order.” (Padron, at pp. 1248–
1249, 1264; id. at p. 1250 [the defendant “has obstinately refused
to comply with the order, consistently attempting to reargue the
very discovery issues the court already decided”].) I see no need
to address the issue of the court’s inherent authority to impose
monetary sanctions.

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discovery statutes when there is an extensive pattern of discovery
abuse. And no other case has done what the majority has done.
There is no ambiguity about what conduct the court found
sanctionable. PwC laid out the City’s discovery abuses in
excruciating detail in its comprehensive motion for sanctions, and
did so as well at numerous hearings on motions it successfully
brought or opposed. The trial court identified the two general
categories of discovery methods that were misused: withholding
documents (“PwC’s efforts to compel the production of . . . the
Jones v. PwC Complaint and information surrounding the
drafting of that document”) and asserting false claims of privilege
to prevent document production and depositions (“the City’s
attempts to cover up its knowledge and participation in the
potential Jones fraud”). The court identified the number of hours
and amount of fees PwC claimed in respect of each category.
The court described at length from the bench the abuses for
which the sanctions were imposed, expressly identifying at least
seven of the motions PwC successfully made or opposed. There is
no question that monetary sanctions are authorized for those
kinds of discovery violations. And no principle of appellate
review requires a court to recite the specific statutes it finds were
violated if the court adequately explains its analysis and findings
in support of an order; in such a case, we presume correctness.
Given the very detailed, explicit record in this case, I see no error
and no prejudice of any kind in either PwC’s or the court’s failure
to recite each separate discovery statute the City violated.
As a final comment, I also take issue with the majority’s
apparent view that its unprecedented construction of the
statute—the first in the several decades since the Discovery Act
was enacted—is the one “that comports most closely with the

34
Legislature’s apparent intent, endeavoring to promote rather
than defeat the statute’s general purpose . . . .” (Smith v.
Superior Court (2006) 39 Cal.4th 77, 83.) (Maj. opn. ante, at
pp. 38–39.) The majority seems to agree that the Legislature had
a “ ‘deep-seated concern that [litigants] do not undermine the
goals of civil discovery by practices detrimental to its proper
operation.’ ” (Maj. opn. ante, at p. 45.)
That is exactly what the City did here. The majority’s
conclusion that the only way a trial court can deal with an
egregious pattern of stonewalling and falsity in discovery
responses is by adhering to the procedural prerequisites of each
separate discovery statute for each particular discovery violation
does not, in my view, comport with Legislative intent, much less
with decades of precedent.
Because I conclude there was no abuse of discretion in any
respect, I would affirm the trial court’s order awarding sanctions
of $2.5 million to PwC for reasonable expenses incurred as a
result of the City’s egregious misuse of the discovery process.

GRIMES, J. *

* Justice of the Court of Appeal, Second Appellate District,
Division Eight, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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