Filed 10/11/23 Akiyoshi v. Andrade CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
LAURENCE AKIYOSHI, et al.,
Plaintiffs and Appellants, A164244
v. (Sonoma County Super. Ct. No.
HECTOR ANDRADE, et al., SCV-268120)
Defendants and Respondents.
Plaintiffs Laurence Akiyoshi and Christine Akiyoshi (collectively, the
Akiyoshis) appeal the trial court’s order granting monetary sanctions against
them in favor of defendants and respondents Louis Andrade, Yolanda
Andrade DeMaria, and Jaime Andrade (collectively, the Andrade
Defendants). The court awarded $9,200 in sanctions against the Akiyoshis as
part of its order denying their motion to compel further discovery responses
from the Andrade Defendants. The Akiyoshis contend, among other things,
that the trial court abused its discretion in denying their motion and
imposing monetary sanctions. We disagree and affirm.
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I. BACKGROUND
The Akiyoshis sued the Andrade Defendants and defendant Hector
Andrade1 (collectively, defendants) for breach of contract and fraud after they
allegedly failed to repay the Akiyoshis for a loan. On July 17, 2021, the
Akiyoshis propounded written discovery requests to all defendants.
Defendants served their responses and objections. On August 22, 2021, the
Akiyoshis sent a meet and confer letter to the Andrade Defendants regarding
the purported deficiencies in their responses. The letter did not specify a
date by which the Andrade Defendants were to amend their responses to
avoid a motion to compel. On August 23, 2021, counsel for the Andrade
Defendants responded that they would provide amended responses within 10
days and that a motion to compel was unnecessary.
On August 31, 2021, the Akiyoshis filed a motion to compel discovery
responses and request for monetary sanctions against all defendants. The
Akiyoshis argued that the Andrade Defendants made frivolous objections and
failed to produce any responsive documents. On September 3, 2021, the
Andrade Defendants, as promised in their August 23 response, served
amended discovery responses. On September 16, 2021, the Akiyoshis’
counsel sent a second meet and confer letter which stated that the motion to
compel would remain on calendar unless the Andrade Defendants withdrew
all their objections to the discovery requests. Counsel for the Andrade
Defendants refused to do so as he believed the objections were valid and
timely.
1 Hector Andrade is not a party to this appeal as the trial court did not
award any sanctions in his favor. The background section therefore focuses
on the facts relevant to the Akiyoshis’ discovery dispute with the Andrade
Defendants. We will also refer to Hector Andrade by his first name to avoid
confusion and intend no disrespect by it.
2
The parties were thereafter assigned to work with a discovery
facilitator. On October 15, 2021, the facilitator emailed the parties’ counsel
that he had reviewed all the documents and concluded that the amended
discovery responses were adequate and that the motion “should be dismissed
as moot or denied outright.” The facilitator commented that much of the
Akiyoshis’ meet and confer was “devoted to extreme ad hominem attacks on
Defendants’ counsel.” The facilitator proposed that the parties agree to take
the motion off calendar and noted that he would recommend the imposition of
sanctions against the Akiyoshis if the motion proceeded to a hearing.
Counsel for the Andrade Defendants agreed to this proposal but the
Akiyoshis’ counsel responded that he wanted “complete responses without
objections within 10 days . . . .” As a result, the motion remained on
calendar.
On November 1, 2021, the Akiyoshis filed a supplemental motion to
compel and argued that the trial court should overrule the objections in the
amended discovery responses and order that the Andrade Defendants provide
objection-free responses. The Andrade Defendants opposed the motion,
arguing that their objections were substantially justified and that,
notwithstanding the objections, they provided full and complete responses.
The Andrade Defendants requested $12,320 in monetary sanctions against
the Akiyoshis and their counsel for the time counsel for the Andrade
Defendants spent meeting and conferring and opposing the motion.
In his November 23, 2021 report to the trial court, the discovery
facilitator concluded that the Andrade Defendants provided substantive
responses to the Akiyoshis’ discovery requests. The facilitator recommended
that the Akiyoshis’ motion be denied or dismissed as moot and that sanctions
be awarded against the Akiyoshis’ counsel “for his failure to meet and confer
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in good faith before filing the motion and during the pendency of the motion.”
Following a hearing, the trial court denied the motion as it found “the
rationale of the Discover[y] facilitator sound and independently reache[d] the
same conclusion.” The court further noted that the Akiyoshis’ separate
statement failed to comply with California Rules of Court, rule 3.1345
because it improperly required the court to refer to other documents. The
court awarded $9,200 in monetary sanctions to the Andrade Defendants.2
The Akiyoshis filed their notice of appeal prematurely before the trial
court entered its order on the motion to compel.3 The Andrade Defendants
note this in their brief but do not contend the appeal should be denied on this
basis. This court, in its discretion, will treat the notice of appeal as having
been filed immediately after entry of the order pursuant to California Rules
of Court, rule 8.104(d)(2), and therefore timely.
II. DISCUSSION
A. Standard of Review
“We review discovery orders for an abuse of discretion.” (Liberty
Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093,
1102.) The trial court has broad discretion in ordering sanctions and such
orders are “ ‘subject to reversal only for arbitrary, capricious or whimsical
action.’ ” (Ibid.)
The Akiyoshis argue that the standard of review should be de novo
because the trial court “was construing statutes about the use of a ‘concise
outline’ for a Motion to Compel” in lieu of a separate statement. They allege
2 In this same order, the trial court also denied the Akiyoshis’ motion to
compel as to Hector but did not award him any sanctions.
3 The record only contained the ruling on the motion to compel which is
not an appealable order. We augmented the record on our own motion to
include the order itself.
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that the court made comments at the hearing regarding its decision to deny
the motion to compel based on their use of a “ ‘concise outline’ ” and that the
court essentially “invit[ed] an appeal to have the Court of Appeal provide
guidance” on this issue. The Akiyoshis, however, provide no record citation to
support this claim and concede there was no transcript for the hearing. We
therefore deem this claim forfeited.4 (United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 163.)
B. The Trial Court Did Not Abuse its Discretion.
The Akiyoshis contend that if the standard of review is abuse of
discretion, the trial court abused its discretion by denying all the relief they
requested, by “refusing to consider the ‘concise outline’ . . . that both sides
had used and had believed as appropriate, by not allowing further briefing or
a modified Separate Statement,” and by imposing $9,200 in monetary
sanctions against them. We are unpersuaded. As a threshold matter, the
Akiyoshis’ failure to support their arguments with any record cites or legal
authority is fatal. It is well-settled that “an appealed judgment is presumed
correct, and [that] appellant bears the burden of overcoming” that
presumption. (Boyle v. CertainTeedCorp. (2006) 137 Cal.App.4th 645,
649–650.) “When an appellant fails to raise a point, or asserts it but fails to
support it with reasoned argument and citations to authority, we treat the
point as waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779,
4 Even if we were to reach the issue, the Akiyoshis’ argument has no
merit as California Rules of Court, rule 3.1345 requires that a motion to
compel discovery be accompanied by a separate statement. The trial court
may, but is not required to, “allow the moving party to submit a concise
outline of the discovery request and each response in dispute.” (Code Civ.
Proc., § 2030.300, subd. (b)(2).)
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784–785.) We therefore deem the Akiyoshis’ arguments waived. But even if
we did not, none of their contentions show any abuse of discretion by the trial
court.
For example, the Akiyoshis contend the Andrade Defendants “should
have been ordered to provide discovery responses without objections, as the
[d]iscovery [f]acilitator had suggested should be the outcome.” This
contention is not only unsupported by the record, it is false. Indeed, the
discovery facilitator expressly informed counsel that he believed that the
amended responses were adequate despite the “subject to” objections. With
respect to Hector’s untimely objections to the Akiyoshis’ discovery requests,
the facilitator did separately propose that the parties stipulate to an order
deeming these objections waived. But this proposal as to Hector, who is not a
party to this appeal, has no bearing on this appeal.
The trial court also did not abuse its discretion in awarding $9,200 in
monetary sanctions after the Akiyoshis refused to take their motion to
compel off calendar as proposed by the discovery facilitator despite having
received substantive amended responses from the Andrade Defendants.
Under Code of Civil Procedure section 2030.300, subdivision (d), the trial
court “shall impose a monetary sanction . . . against any party, person, or
attorney who unsuccessfully makes . . . a motion to compel a further response
to [discovery], 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.” The Akiyoshis argue that it was unreasonable for the
court to award monetary sanctions “to a responding party who is asserting
wholesale boilerplate objections.” The Akiyoshis, however, cite no supporting
legal authority and provide no analysis as to why the Andrade Defendants’
objections lacked merit. The Akiyoshis have therefore failed to meet their
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burden as appellants to show any error below. Accordingly, we find that the
trial court acted within its discretion in denying the motion and awarding
sanctions.
The Akiyoshis make other unsupported contentions, including that the
trial court “never did any analysis of the Objections,” and that the court
should have required further briefing on the adequacy of the objections.
Again, these assertions are wholly unsupported by the record. The Akiyoshis,
in fact, did file a supplemental brief that discussed the objections contained
in the amended discovery responses. And there is no evidence that the trial
court failed to analyze any issues raised in the Akiyoshis’ motion. To the
contrary, the court specifically stated that it found the facilitator’s reasoning
to be sound and “independently reache[d] the same conclusion.” Moreover,
the Akiyoshis provide no legal authority, and we are aware of none, which
obligates the trial court to order or permit further briefing in this instance.
Lastly, the Akiyoshis argue that the trial court’s ruling was “filled with
ad hominem attacks” against their counsel which indicated that the court’s
ruling was not based on an evaluation of the facts and the law. This
argument is unsupported by the record and is belied by the trial court’s
written ruling—which states that although the Akiyoshis’ “meet and confer
correspondence can be interpreted by a reasonable person as unjustified
vilification,” its decision to deny their motion was “rendered on the merits of
[the] case, and nothing else.” Having no reason to doubt this statement, we
find that the court did not abuse its discretion in awarding $9,200 in
monetary sanctions against the Akiyoshis.
C. Motion for Sanctions.
The Andrade Defendants move for sanctions against the Akiyoshis and
their counsel for pursuing a frivolous appeal. We may impose sanctions on a
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party or an attorney for making a frivolous appeal or appealing solely to
cause delay. (Cal. Rules of Court, rule 8.276(a)(1).) An appeal is frivolous
“only when it is prosecuted for an improper motive—to harass the respondent
or delay the effect of an adverse judgment—or when it indisputably has no
merit—when any reasonable attorney would agree that the appeal is totally
and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d
637, 650.)
We decline to impose sanctions against the Akiyoshis here. While we
agree that the Akiyoshis’ brief is deficient in its lack of record citation and
legal authority, it is still the Andrade Defendants’ burden as the moving
party to show that the Akiyoshis’ appeal is frivolous or intended solely to
cause delay. The Andrade Defendants do not provide a sufficient summary of
the underlying discovery dispute in their brief to enable us to determine
whether sanctions are warranted here. Although we affirm the trial court’s
order, the Andrade Defendants fail to show that this appeal was prosecuted
for an improper motive or that it indisputably has no merit. Their request for
sanctions is therefore denied.
III. DISPOSITION
The judgment is affirmed. The Andrade Defendants are entitled to
recover their costs on appeal.
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CHOU, J.
We concur.
JACKSON, P.J.
BURNS, J.
Akiyoshi v. Andrade / A164244
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