Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. GC035880
Jan A. Pluim, Judge. Reversed with directions.
Paul Anthony Stabile, in pro. per.; Michael J. Mastrovito, in pro. per.; for Defendants and Appellants.
Matthew Scott Duncan, in pro. per, for Objector and Appellant.
No appearance for Plaintiffs and Respondents.
KLEIN, P. J.
Defendants and appellants Paul A. Stabile (Stabile) and Michael J. Mastrovito (Mastrovito) and their attorney Matthew Duncan (Duncan) appeal an order directing the payment of $5,928 in discovery sanctions to plaintiffs and respondents Peggy Rinella and Kirk Rinella (Rinellas) pursuant to Code of Civil Procedure section 2023.030.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The Rinellas have not filed a respondent’s brief herein. In such a situation, California Rules of Court, rule 8.220(a)(2) provides the court may decide the appeal on the record, the opening brief, and any oral argument by appellant. A respondent’s failure to file a brief does not require an automatic reversal. (In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854). Notwithstanding the respondent’s silence, the appellant still has the affirmative burden to show error. Therefore, this court reviews the record and reverses only if prejudicial error is found. (Ibid.)
Because the sanctions were improperly issued on an ex parte basis, the order must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
1. The parties.
The Rinellas brought an action for dental malpractice. In that action, they were represented by Stabile and Mastrovito.
In this action, the Rinellas are suing Stabile and Mastrovito for legal malpractice. Stabile and Mastrovito are represented herein by Duncan.
2. The legal malpractice action; dispute concerning scheduling of depositions.
On Friday, July 21, 2006, the Rinellas’ attorney sent Duncan a confirmation letter regarding the depositions of Stabile and Mastrovito, scheduled to take place the following week, on Tuesday and Wednesday.
On Monday morning, July 24, 2006, Duncan left the Rinellas’ attorney a voicemail message stating the depositions as scheduled could not go forward because he was unable to reach his clients and California was experiencing electrical blackouts.
The Rinellas’ attorney responded, advising Duncan in a voicemail message that Duncan still had plenty of opportunity to notify his clients because the depositions were not scheduled to commence until the following day.
Later on Monday, Duncan left a voicemail message for the Rinellas’ attorney stating Duncan could not be present for Stabile’s deposition the following day because he was very ill.
3. The Rinellas’ ex parte application.
On Tuesday, July 25, the Rinellas’ attorney left a voicemail message for Duncan stating the Rinellas would move ex parte on Thursday, July 27 unless the depositions proceeded as scheduled. After receiving no response, the Rinellas’ attorney left Duncan another voicemail message on Wednesday, July 26, informing Duncan he would be moving ex parte on July 27 to compel the depositions of Stabile and Mastrovito.
Neither Stabile nor Mastrovito appeared for the depositions scheduled for July 25 and July 26, 2006.
On Thursday, July 27, 2006, the Rinellas filed an ex parte application to compel defendants’ depositions and for sanctions. The ex parte application stated the Rinellas complied with the statutory notice requirements by leaving Duncan messages on Tuesday, July 25 and Wednesday, July 26, saying they would move ex parte on Thursday, July 27 if Stabile and Mastrovito failed to appear for their depositions. The ex parte application indicated the papers had not been served on Duncan prior to the hearing because Duncan did not have an email account or a fax machine.
The ex parte application was heard and granted the same day it was filed. The trial court ordered the depositions to take place on dates certain and awarded sanctions in the amount of $5,928 against Stabile, Mastrovito, and Duncan, jointly and severally.
Stabile, Mastrovito, and Duncan filed a timely notice of appeal from the order directing the payment of sanctions.
An order sanctioning a party or a party’s attorney is immediately appealable if the award exceeds $5,000. (§904.1, subd. (a)(12).)
CONTENTIONS
Stabile, Mastrovito, and Duncan contend the trial court’s order for the payment of sanctions violated due process because there was no notice or opportunity to be heard on the ex parte application. Appellants further contend the sanctions order is defective for lack of a detailed recital of the circumstances justifying the imposition of sanctions.
DISCUSSION
1. Standard of review.
We normally review orders for monetary sanctions under the deferential abuse of discretion standard. (See, eg., Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) Here, however, the issue is not the amount of sanctions or whether the sanctioned conduct was willful (see, eg., Young v. Rosenthal (1989) 212 Cal.App.3d 96, 119-120), but rather, whether the sanctions award was fundamentally flawed because sanctions were awarded on an ex parte basis. That issue presents a pure question of law, which we review de novo.
2. Both the statutory scheme and due process require notice and an opportunity to be heard prior to the imposition of discovery sanctions.
Section 2023.030 states in pertinent part: “[T]he court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose [monetary] sanctions against anyone engaging in conduct that is a misuse of the discovery process.” (Italics added.) Notice is governed by sections 1005 and 1010 (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 5-6), which require written notice at least 16 days before a hearing.
Section 1005, subdivision (a)(13) requires written notice to be given in accordance with subdivisions (b) and (c) for “[a]ny other proceeding under this code in which notice is required and no other time or method is prescribed by law or by court or judge.” Section 1005 at subdivision (b) requires at least 16 days notice before a hearing.
“In addition to the statutory requirement for notice, due process requires that notice be given prior to the imposition of sanctions. As the court stated in O’Brien v. Cseh (1983) 148 Cal.App.3d 957, 961: ‘Application for orders may not be ex parte if a statute or rule requires notice. . . . [¶] Adequate notice prior to imposition of sanctions is mandated not only by statute, but also by the due process clauses of both the state and federal Constitutions.’ ” (Alliance Bank v. Murray, supra, 161 Cal.App.3dat pp. 5-6.) Discovery sanctions cannot be awarded ex parte and a sanctions order “issued ex parte is void.” (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 296, italics added.)
In the instant case, the Rinellas drafted and filed the ex parte application on Thursday, July 27, 2006, and the trial court heard and granted the application that same day. The ex parte application was not served on Duncan. Of course, had Duncan appeared at the hearing, there would be no issue of notice, but Duncan did not appear, so notice of motion was not waived.
“[T]he appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.’ [Citations.]” (Alliance Bank v. Murray, supra,161 Cal.App.3d at pp. 7-8.)
The law “ ‘seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction.’ ” (Alliance Bank v. Murray, supra, 161 Cal.App.3d at p. 6.) In O’Brien v. Cseh, supra, 148 Cal.App.3d at pages 960-961 , for example, the appellate court reversed an ex parte sanctions order where plaintiff had provided defendant with only one day’s notice by telephone of the date, time, and place of the ex parte application for attorney’s fees, despite the explicit notice requirement contained in the pertinent statute.
In the instant case, sanctions were awarded without notice. Therefore, the trial court’s order imposing sanctions violated statutory requirements as well as fundamental due process. Because discovery sanctions cannot be imposed on an ex parte basis, the order must be reversed.
3. It is unnecessary to address Stabile, Mastrovito and Duncan’s further contention that the trial court failed to describe the circumstances justifying the sanctions award.
Stabile, Mastrovito, and Duncan further contend the trial court’s order for the payment of sanctions failed to meet the requirement of a detailed recital of the circumstances justifying the imposition of sanctions. Because the sanctions order is void for lack of notice, it is unnecessary to address this contention.
DISPOSITION
The order imposing monetary sanctions is reversed with directions to vacate the sanctions award. Appellants shall recover costs on appeal.
We concur: KITCHING, J., ALDRICH, J.