Filed 2/7/22 Shabahang v. Sechrist CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
SHAHROKH SHABAHANG,
Plaintiff and Respondent, E074744
v. (Super.Ct.No. CIVDS1831323)
CHRISTOPHER SECHRIST, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi,
Judge. As to the appeal, Affirmed. As to the Petition for Writ of Mandate, Denied.
Christopher M. Sechrist, in pro. per., for Defendant and Appellant.
Homan & Stone, Gene S. Stone, Eric M. Hokana and Jason M. Pemstein, for
Plaintiff and Respondent.
1 I. INTRODUCTION
Plaintiff and respondent, Shahrokh Shabahang, and defendant and appellant,
Christopher Sechrist, were partners in a dentistry practice. In November 2018, plaintiff
filed a civil action against defendant for dissolution of partnership, breach of contract,
breach of covenant of good faith and fair dealing, accounting, and fraud. Initially,
defendant responded to the complaint by filing an answer and a cross-complaint,
asserting his own claims against plaintiff as well as against numerous other named cross-
defendants. On September 25, 2019, defendant also filed a motion seeking dismissal of
the complaint as a strategic lawsuit against public participation (SLAPP) pursuant to
Code of Civil Procedure1 section 425.16 (anti-SLAPP motion). The trial court denied
defendant’s anti-SLAPP motion, and defendant appeals from that order.
While defendant’s appeal was pending, plaintiff filed an amended complaint and
propounded written discovery. When defendant failed to respond, the trial court granted
motions to compel and issued monetary sanctions against defendant for his failure to
respond. In response, defendant filed a petition seeking a writ of supersedeas to stay any
further trial court proceedings and a writ of mandate to vacate various trial court orders,
ostensibly for the purpose of returning the trial court proceedings to the state they had
been on the date defendant filed his notice of appeal.
On March 25, 2021, this court granted defendant’s request for a writ of
supersedeas and ordered the proceedings stayed until resolution of defendant’s appeal
1 Undesignated statutory references are to the Code of Civil Procedure.
2 and issuance of the remittitur. However, we reserved determination of the request for a
writ of mandate to be considered with the merits of defendant’s appeal.
We conclude that the appeal must be resolved against defendant, and the trial
court’s order denying his anti-SLAPP motion should be affirmed. As we explain,
defendant forfeited any claims of error by failing to present any reasoned argument on
appeal, and our independent review of the record reveals no error warranting reversal of
the trial court’s order. Additionally, we conclude that defendant has failed to meet his
burden to show entitlement to relief by extraordinary writ and, even if defendant had
made such a showing, such a writ would serve no practical purpose at this stage, given
our affirmance of the trial court’s order on appeal.
II. FACTS & PROCEDURAL HISTORY
On November 30, 2018, plaintiff filed a civil complaint for damages against
defendant. The complaint alleged that plaintiff and defendant had formed a general
partnership for the purpose of operating a dental practice. However, the relationship
between the partners deteriorated, and plaintiff wished to end the partnership. Plaintiff
alleged various reasons for this desire, including: (1) plaintiff had been required to
disproportionately contribute toward paying the expenses required to operate the
partnership; (2) the inability of the partners to utilize the same insurance network for
billing purposes; (3) plaintiff had been required to perform most of the partnership’s
management responsibilities; (4) defendant made misrepresentations regarding his
competence to practice dentistry; and (5) defendant had been accused by other providers
of causing injury to patients. Based upon these allegations, plaintiff alleged causes of
3 action for (1) dissolution of partnership, (2) breach of contract, (3) breach of the covenant
of good faith and fair dealing, (4) an accounting of the partnership, and (5) fraud.
On April 22, 2019, defendant filed an answer as well as a cross-complaint,
asserting his own claims against plaintiff and various other named cross-defendants.2 On
September 25, 2019, defendant filed an anti-SLAPP motion seeking dismissal. With
respect to the purported infringement of his free speech rights, defendant argued that
plaintiff’s lawsuit prevented defendant from filing his own suit against plaintiff;
plaintiff’s suit somehow caused law enforcement to cease investigation of a complaint
made by defendant; and plaintiff’s suit caused various government entities to ignore
defendant’s reports regarding the dispute.
On November 19, 2019, the trial court held a hearing on defendant’s motion. The
trial court indicated that, after consideration of the moving and opposition papers,3
defendant had failed to identify any conduct that constituted a matter of public interest
such that section 425.16 would be applicable to the facts of the case. The trial court
denied defendant’s motion on that basis and declined to evaluate plaintiff’s likelihood of
2 Specifically, defendant purported to state 28 causes of action, including: financial abuse of a disabled person, undue influence, unfair business practices, breach of fiduciary duty, malicious prosecution, defamation, conversion, wrongful eviction, unjust enrichment, “attorney & client collusion,” intentional infliction of emotional distress, intentional interference with prospective economic advantage, intentional nuisance, “RICO” fraud, conspiracy to commit fraud, discrimination, civil rights violations, breach of contract, dissolution, and accounting.
3 Defendant apparently filed an untimely reply brief with additional submissions the day of the hearing, but the trial court declined to review these documents.
4 prevailing on the merits. Defendant appeals from the order denying his anti-SLAPP
motion.
On February 3, 2021, defendant sought a writ of supersedeas seeking to stay the
civil proceedings during the pendency of his appeal and further sought a writ of mandate
seeking to vacate all trial court orders issued since the date he filed a notice of appeal.
On March 25, 2021, this court granted defendant’s request for a writ of supersedeas and
ordered the proceedings stayed until issuance of the remittitur, but we reserved
determination of defendant’s request for a writ of mandate to be resolved with the appeal.
III. DISCUSSION
A. We Affirm the Trial Court’s Order Denying Defendant’s Anti-SLAPP Motion
Initially, we address defendant’s appeal from the order denying his anti-SLAPP
motion. We conclude defendant has forfeited any claim of error by failing to present a
reasoned argument on appeal. Further, our independent review of the record discloses no
error, and we affirm the trial court’s order.
1. General Legal Principles and Standard of Review
“ ‘Code of Civil Procedure section 425.16 sets out a procedure for striking
complaints in harassing lawsuits that are commonly known as SLAPP suits . . . , which
are brought to challenge the exercise of constitutionally protected free speech rights.’
[Citation.] A cause of action arising from a person’s act in furtherance of the ‘right of
petition or free speech under the [federal or state] Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability’ that the claim will prevail.
5 [Citation.] . . . ‘Resolution of an anti-SLAPP motion involves two steps. First, the
defendant must establish that the challenged claim arises from activity protected by
section 425.16. [Citation.] If the defendant makes the required showing, the burden
shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of
success.’ ” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019)
6 Cal.5th 931, 940 (Sweetwater).)
“ ‘We review de novo the grant or denial of an anti-SLAPP motion.’ ”
(Sweetwater, 6 Cal.5th at p. 940; see Spencer v. Mowat (2020) 46 Cal.App.5th 1024,
1036.) “We exercise independent judgment in determining whether, based on our own
review of the record, the challenged claims arise from protected activity.” (Spencer, at
p. 1036.)
2. Defendant Has Forfeited Any Claim of Error by Failing To Present a Reasoned
Argument on Appeal
“ ‘[T]he burden is on an appellant to demonstrate, on the basis of the record
presented to the appellate court, that the trial court committed an error that justifies
reversal.’ [Citations.] Where an appellant fails to present argument or legal authority, he
or she forfeits appellate consideration of the issue.” (Kinsella v. Kinsella (2020)
45 Cal.App.5th 442, 464.) Moreover, it is not sufficient simply to claim error, where
such claims are not supported by any reasoned argument. When an appellant
“ ‘ “ ‘asserts [a point] but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.’ ” [Citation.] “We are not bound to develop
appellants’ arguments for them. [Citation.] The absence of a cogent legal argument or
6 citation to authority allows this court to treat the contention as waived.” ’ ” (Orange
County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 360.)
Here, defendant asserts the trial court erred in concluding that plaintiff’s claims
did not arise from protected activity. The precise nature of the alleged error is unclear
from defendant’s briefs on appeal. However, we observe that the trial court conducted
only the first step of the traditional analysis on an anti-SLAPP motion, concluded that
defendant failed to establish that plaintiff’s complaint involved protected activity, and
denied defendant’s motion on this ground. Thus, any alleged error must necessarily
involve this initial conclusion by the trial court.
In defendant’s words, with respect to “step one of the anti-SLAPP procedure,” the
trial court’s conclusion was erroneous because (1) defendant is entitled to various
statutory protections afforded by the Medical Injury Compensation Reform Act
(MICRA); (2) any litigation regarding defendant’s professional qualifications must be
resolved in administrative procedures outlined in Business and Professions Code
section 805; (3) defendant is entitled to pursue independent claims against plaintiff for
alleged “illegal conduct”; and (4) the complaint violates defendant’s privacy rights by
subjecting defendant to discovery. None of these arguments address the central question
of whether plaintiff’s complaint arises from defendant’s exercise of protected activity
within the meaning of section 425.16.
Further, while we disagree with defendant’s assertions regarding the applicability
of these various statutory provisions and defenses, we need not discuss these matters in
detail. Even assuming for the sake of argument that defendant is entitled to procedural or
7 substantive defenses under MICRA or the Business and Professions Code, entitled to
assert his own affirmative claims against plaintiff, or entitled to protection from the
discovery provisions of the Code of Civil Procedure, these matters are simply not
relevant and do not tend to show that plaintiff’s complaint arises from defendant’s
exercise of protected activity.4 In the absence of a cogent argument on appeal,
defendant’s claim of error has been forfeited, and we may affirm the trial court’s order
for this reason alone.
3. Our Independent Review of the Record on Appeal Reveals No Error
Despite defendant’s failure to present a reasoned argument in support of his claim
of error on appeal, we have independently reviewed the record presented on appeal and
find no reversible error. Thus, even in the absence of forfeiture, we would affirm the trial
court’s order.
“A claim arises from protected activity when that activity underlies or forms the
basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the plaintiff’s
cause of action must itself have been an act in furtherance of the right of petition or free
speech.’ [Citations.] . . . [T]he focus is on determining what ‘the defendant’s activity
[is] that gives rise to his or her asserted liability—and whether that activity constitutes
protected speech or petitioning.’ [Citation.] ‘The only means specified in section 425.16
4 While a procedural or substantive defense might be relevant to a determination of plaintiff’s likelihood of success on the claims in the second step of an anti-SLAPP analysis, “ ‘[i]f the defendant does not meet its burden on the first step, the court should deny the motion and need not address the second step.’ ” (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1162.)
8 by which a moving defendant can satisfy the [“arising from”] requirement is to
demonstrate that the defendant’s conduct by which plaintiff claims to have been injured
falls within one of the four categories described in subdivision (e) . . . .’ ” (Park v. Board
of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063; see Wilson
v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)
Those four categories are: (1) making a written or oral statement before a
legislative, executive, or judicial proceeding; (2) making a written or oral statement in
connection with an issue under consideration or review by a legislative, executive, or
judicial body; (3) making a written or oral statement regarding an issue of public interest
in a place open to the public or in a public forum; and (4) conduct in furtherance of the
defendant’s exercise of the right to free speech or right to petition regarding an issue of
public interest. (§ 425.16, subd. (e).)
Our independent review of plaintiff’s complaint does not reveal any allegations of
an act that could reasonably be interpreted as falling within any of the statutory categories
constituting protected activity under section 425.16. The complaint makes clear that the
gravamen of the dispute is a request to dissolve a partnership in response to a growing
professional and personal conflict between the parties. Indeed, defendant’s own cross-
complaint filed in response to the complaint appears to confirm this conclusion, as it
includes parallel claims for breach of contract, dissolution of partnership, and an
accounting against plaintiff. Absent any suggestion that the complaint is premised upon
an act or omission that could be fairly characterized as protected activity as defined in
section 425.16, subdivision (e), we find no error in the trial court’s conclusion that
9 defendant failed to meet his burden in the first step of the anti-SLAPP analysis. Absent
error, we affirm the order denying defendant’s motion.
B. Defendant’s Request for a Writ of Mandate Is Denied
During the pendency of his appeal, defendant also filed a petition seeking a writ of
mandate to vacate various orders issued by the trial court following the filing of his
notice of appeal. We previously reserved consideration of this request to be resolved
with the appeal. We now conclude that defendant has failed to meet his burden to show
entitlement to the relief requested. Additionally, even assuming the trial court acted in
excess of its jurisdiction with respect to one or more of the matters identified in
defendant’s petition, a writ of mandate would serve no practical benefit upon resolution
of defendant’s appeal, and any lingering issues can be adequately addressed in a direct
appeal from any subsequent judgment. For these reasons, we deny defendant’s petition
for writ of mandate.
1. General Legal Principles
“The writ of mandate lies generally to compel performance of a legal duty when
no plain, speedy, and adequate remedy at law is available. [Citation.] Review by
mandate ‘is often sought before trial to avoid the effect of a trial court’s order or other
ruling that will affect the conduct of the proceedings and that could not otherwise be
challenged until after judgment is rendered.’ [Citation.] . . . [R]eview by writ is at the
discretion of the reviewing court. ‘The discretionary aspect of writ review comes into
play primarily when the petitioner has another remedy by appeal and the issue is whether
the alternative remedy is adequate.’ ” (People v. Mena (2012) 54 Cal.4th 146, 153; see
10 §§ 1085, 1086.) Generally, absent exceptional circumstances, a reviewing court will not
exercise its discretion to review discovery orders or pleading issues in a petition for writ
of mandate. (San Joaquin County Local Agency Formation Commission v. Superior
Court (2008) 162 Cal.App.4th 159, 166 [“[D]iscovery orders are generally not reviewed
by prerogative writ.”]; County of L.A. v. Superior Court (1998) 68 Cal.App.4th 1166,
1170 [“Appellate courts are reluctant to intervene by extraordinary pretrial writ in matters
of pleading.”].)
“ ‘To obtain writ relief . . . the petitioner must show [(1)] there is no other plain,
speedy, and adequate remedy; [(2)] the respondent has a clear, present, and ministerial
duty to act in a particular way; and [(3)] the petitioner has a clear, present[,] and
beneficial right to performance of that duty.’ ” (TransparentGov Novato v. City of
Novato (2019) 34 Cal.App.5th 140, 147.) The petitioner bears the burden to plead and
prove the facts necessary to show entitlement to relief. (Phelan v. Superior Court of San
Francisco (1950) 35 Cal.2d 363, 370; California Correctional Peace Officers Assn. v.
State Personnel Bd. (1995) 10 Cal.4th 1133, 1153-1154.)
2. Defendant Has Not Met His Burden To Show Entitlement to Relief
Here, the prayer for relief in defendant’s writ petition requests the following:
(1) an order requiring plaintiff to withdraw his first amended complaint; (2) an order
directing the clerk’s office of the superior court to investigate the circumstances of the
filing of plaintiff’s first amended complaint; (3) an order vacating the trial court’s
September 4, 2020 discovery order compelling defendant to respond to written discovery
and issuing monetary sanctions; (4) an order vacating the trial court’s January 19, 2021
11 order purporting to sanction defendant for failure to file an amended answer in response
to plaintiff’s first amended complaint; (5) an order vacating a purported hearing date set
for February 12, 2021; and (6) various requests for sanctions against plaintiff and
plaintiff’s attorney of record. Defendant argues that these actions and orders are invalid
because they were taken after he filed his notice of appeal from the order denying his
anti-SLAPP motion and, as such, violate the automatic stay provided in section 916,
subdivision (a).
Section 916, subdivision (a), generally provides that “the perfecting of an appeal
stays proceedings in the trial court upon the . . . order appealed from or upon the matters
embraced therein or affected thereby, . . . but the trial court may proceed upon any other
matter embraced in the action and not affected by the . . . order.” Our Supreme Court has
clearly held that the statutory stay applies following an appeal from a denial of a special
motion to strike pursuant to section 425.16. (Varian Medical Systems, Inc. v. Delfino
(2005) 35 Cal.4th 180, 198-200 (Varian).) Thus, as an initial matter, we disagree with
plaintiff’s argument in opposition that “basic discovery requests and motions associated
therewith” are somehow exempt from the automatic stay. Plaintiff has cited no authority
for this proposition, the plain words of the statute set forth no such exception, and this
position appears contrary to that expressed by our high court in Varian.
Thus, to the extent the trial court actually permitted the filing of an amended
pleading altering the substantive allegations against defendant or permitted discovery on
the complaint to proceed pending defendant’s appeal, we agree with defendant that such
actions would indeed be void. (Varian, supra, 35 Cal.4th at p. 199 [Subsequent trial
12 court proceedings in violation of section 916, subdivision (a), are “void—and not merely
voidable.”].) Nevertheless, as we explain post, we believe the record here is inadequate
for this court to conclude that any of the matters challenged by defendant can properly be
considered embraced in and affected by the pending appeal, such that these matters were,
in fact, subject to the stay set forth in section 916, subdivision (a).
First, the act of filing an amended complaint, in and of itself, does not necessarily
violate the automatic stay provisions of section 916, subdivision (a). “As a general rule,
where only one of several parties appeals from a judgment, the appeal includes only that
portion of the judgment adverse to the appealing party’s interest . . . .” (Estate of McDill
(1975) 14 Cal.3d 831, 840.) The stay does not suspend the trial court proceedings with
respect to claims asserted against nonappealing parties. (Hedwall v. PCMV, LLC (2018)
22 Cal.App.5th 564, 580, fn. 11.) Here, the original complaint named more than one
defendant and the register of actions suggests that at least one purpose of the amended
complaint was to remove one of those other defendants from the action. Thus, for the
amended complaint to violate the stay provisions of section 916, subdivision (a), the
substance of the amendments to the pleading must in some way impact the claims alleged
against defendant. However, defendant did not include a copy of the amended complaint
as part of the record on appeal, did not include a copy of the amended complaint as an
exhibit in support of his writ petition, and did not otherwise describe how the amended
pleading differed from the original in his petition. Absent such, this court is unable to
13 conclude that the amended complaint in this case in fact constitutes a violation of the stay
pending appeal, such that writ relief would be warranted.5
Second, in the specific context of this case, continued discovery between the
parties would not, in and of itself, suggest a violation of section 916, subdivision (a).
This is because defendant filed a cross-complaint asserting his own claims for affirmative
relief arising out of the same general set of facts. The cross-complaint is clearly not a
matter embraced in an appeal from an order related to the complaint. (See Bewley v.
Riggs (1968) 262 Cal.App.2d 188, 192 [A cross-complaint seeking affirmative relief “is
to be considered separately from the complaint.”].) Nor is it apparent that continued
litigation on the cross-complaint would have affected defendant’s pending appeal in any
meaningful way. Notably, even if defendant prevailed on appeal and obtained a complete
dismissal of the complaint upon remand, such a dismissal would not resolve or otherwise
dispose of the litigation related to his cross-complaint. (Sanabria v. Embrey (2001)
92 Cal.App.4th 422, 425 [dismissal of complaint does not affect pendency of parallel
complaints filed by other parties].)
Thus, in the context of this case, continued trial court proceedings, motions, and
discovery between the parties would not necessarily represent a violation of section 916,
subdivision (a). Plaintiff, as a cross-defendant, would be entitled to continue conducting
discovery with respect to the claims alleged in the cross-complaint. Here, defendant did
5 To the extent the amended complaint merely added claims or allegations against other parties or sought to add or dismiss other defendants from the action, such an amended complaint would not violate the automatic stay.
14 not include copies of the underlying discovery requests as part of the record on appeal,
did not submit copies in support of his writ petition, and did not otherwise describe the
nature of the discovery when seeking writ relief. Nor did defendant include a copy of the
record of oral proceedings related to any discovery motions or provide a copy of the
actual discovery orders by the trial court.6 Absent such, we have no basis to conclude
that the discovery requests or any discovery orders related to the complaint, as opposed to
any cross-claims asserted in the cross-complaint, would represent a violation, such that
section 916, subdivision (a), would be implicated.
Third, defendant complains of a January 19, 2021 order purportedly sanctioning
him for failing to file an amended answer to the first amended complaint.7 However, the
record before us contains no order and no record of oral proceedings related to the
issuance of any such order. Instead, defendant has presented only a “notice of ruling.” A
6 Defendant did submit a copy of the discovery motions, opposition, reply, and notice of ruling. However, these documents all identified the plaintiff both as a plaintiff to the complaint and cross-defendant on the cross-complaint and did not substantively set forth the specific interrogatories or requests for production in dispute. To the extent the moving party may have attached copies of the interrogatories or requests for production to declarations in support of the motions, defendant did not submit copies of any such attachments with his writ petition. 7 If true, such an act would appear to violate the stay provided in section 916, subdivision (a). As we have already noted, an amended complaint may be filed but only where the amended allegations do not change the substantive nature of the claims against the appealing party. However, an amended complaint that does not change the substantive nature of any allegations against defendant would not require defendant to file an amended answer. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808-809 [where original answer operates to deny or set forth a sufficient defense to an amended pleading, a new answer is not required]; Gray v. Hall (1928) 203 Cal. 306, 312-313 [same].) Thus, requiring defendant to file an amended answer would be a strong indication that the amended pleading itself was void as filed in violation of the stay pending appeal.
15 “ ‘notice of ruling’ ” is not the equivalent of a judgment or order. (Shpiller v. Harry C’s
Redlands (1993) 13 Cal.App.4th 1177, 1178.) More importantly, the notice of ruling
submitted for our review indicates that defendant was sanctioned for failing to comply
with the trial court’s September 4, 2020 discovery order and not, as defendant contends,
for failing to file an amended answer. Thus, we have no basis to conclude defendant was
actually sanctioned for failing to file an amended answer as he claims.
Finally, defendant requests this court vacate a purported February 12, 2021
hearing date set by the trial court. However, neither the record on appeal nor any
submissions in support of defendant’s writ petition reference a hearing on this date.
Thus, this court has no basis to conclude that a hearing was actually set for that date, let
alone what the purpose of such a hearing might have been. As such, defendant’s petition
simply presents no basis for relief via writ of mandate with respect to this hearing.
Defendant, as the petitioner seeking relief via extraordinary writ, bears the burden to
show that the trial court had a duty to act in a certain way and failed to do so. Where the
record is inadequate to conclude that the trial court, in fact, had a duty to act in a certain
way, defendant has failed to meet his burden, and the requested relief must be denied.
3. Even Assuming Some Underlying Act or Order Had Violated the Automatic
Stay, Defendant Has an Adequate Remedy
We also conclude that, even assuming defendant had met his burden to show one
or more of the matters complained of violated the stay provisions of section 916,
subdivision (a), writ relief at this stage of the proceedings is unwarranted.
16 “ ‘ “ ‘As a general proposition[,] courts will not issue a writ of mandate to enforce
an abstract right of no practical benefit to petitioner, or where to issue the writ would be
useless, unenforceable or unavailing.’ ” ’ ” (Roger v. County of Riverside (2020)
44 Cal.App.5th 510, 530.) Additionally, “a writ of mandate will not issue where there is
a plain, speedy, and adequate remedy in the ordinary course of law,” and “[a]s a general
rule, the right of appeal constitutes such remedy.” (Foster v. Traeger (1922)
56 Cal.App. 339, 340.)
Here, we observe that even if the filing of an amended complaint in this case was
prohibited during the pendency of defendant’s appeal, the resolution of the appeal renders
the issue moot. Because we affirm the trial court’s denial of defendant’s anti-SLAPP
motion on appeal, upon the issuance of the remittitur, the trial court would certainly be
within its discretion to permit the filing of such an amended pleading (§ 473), and we see
no prejudice to defendant as a result of the alleged premature filing. Likewise, even if the
discovery requests in dispute should have been stayed pending resolution of defendant’s
appeal, defendant’s obligation to respond to discovery will resume upon issuance of the
remittitur. Thus, ordering the “withdrawal” of the amended complaint or vacating an
order to compel responses to written discovery requests is of no practical benefit to the
defendant at this stage in the proceedings.
To the extent defendant claims he was improperly sanctioned for failing to file a
responsive pleading or failing to respond to discovery during a stay of proceedings, the
17 record before us identifies only monetary sanctions totaling $2,875.8 The propriety of
these sanctions may be reviewed on direct appeal from a subsequent judgment.9
(§ 904.1, subd. (b).) Thus, even if defendant had properly identified and supported his
claims that the trial court acted in excess of its jurisdiction by issuing orders in violation
of the stay imposed by section 916, subdivision (a), a writ of mandate would have no
practical benefit in this case, and we would deny defendant’s request on this independent
ground.
C. The Parties’ Dueling Sanctions Requests Are Denied
Finally, we address the parties’ dueling requests for sanctions. Specifically,
defendant has requested we sanction plaintiff and plaintiff’s attorney of record for the
alleged acts taken in violation of the automatic stay provision of section 916,
subdivision (a). In the respondent’s brief, plaintiff requests that we sanction defendant
for taking a frivolous appeal. We deny both requests.
As we have already explained, it is certainly possible that some act by plaintiff or
order of the trial court may have violated the stay provisions of section 916,
subdivision (a), in this case. Nevertheless, we denied relief because the record was
8The trial court issued monetary sanctions as part of its discovery order in the amount of $1,065 on September 4, 2020. It issued an additional monetary sanction in the amount of $1,810 on January 19, 2021, but stayed enforcement of the sanction. 9 Such an approach is particularly prudent in this case, since defendant contends the trial court was “misle[d]” into believing the stay provisions of section 916, subdivision (a), were not applicable. While defendant has not presented a record sufficient for this court to evaluate the merits of his claim, upon issuance of the remittitur, the trial court will have the benefit of this decision and the discretion to reevaluate the propriety of any sanction award to the extent it believes it was “misle[d].”
18 simply inadequate for us to reach that conclusion absent speculation. The inadequacy of
the record also prevents this court from concluding that plaintiff or plaintiff’s attorney
actually engaged in an act or omission warranting sanctions, and we deny defendant’s
sanction requests for this reason.
With respect to plaintiff’s request for sanctions on the ground that defendant’s
appeal was frivolous, a request for sanctions must be accompanied by a supporting
declaration. (Cal. Rules of Court, rule 8.276(b)(1).) No such declaration was submitted
with plaintiff’s request. Further, to the extent plaintiff is requesting this court permit it to
file a motion for sanctions, any such motion would be untimely at this juncture. (Ibid.
[sanctions motion must be filed “no later than 10 days after the appellant’s reply brief is
due”].) Accordingly, we deny plaintiff’s request for sanctions on procedural grounds.
IV. DISPOSITION
The order is affirmed. Defendant’s petition for writ of mandate is denied.
Plaintiff to recover his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
SLOUGH Acting P. J.
MENETREZ J.