Achterkirchen v. Montiel

DAVID ACHTERKIRCHEN et al., Plaintiffs and Respondents, v. JESUS A. MONTIEL, Defendant and Appellant.

A148424

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

August 17, 2018

ORDER MODIFYING OPINION AND DENYING REHEARINGNO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on August 17, 2018, be modified as follows:

1. On page 12, at the end of the carryover paragraph from page 11, after the citation to Neville v. County of Sonoma, add as footnote 7 the following footnote:

⁷ In his petition for rehearing, Montiel argues we should apply the principle of statutory construction expresio unius est exclusio alterius to conclude the Legislature's specification of document demands in section 708.030 necessarily means it intended to prohibit the use of a subpoena duces tecum in enforcement of judgment proceedings. To the extent that principle applies, however, the statutory language reflects legislative intent to preclude the use of particular methods under the Civil Discovery Act. As Montiel acknowledges , section 2016.070 states that "This title [(Title 4, Civil Discovery Act)] applies to discovery in aid of enforcement of a money judgment only to the extent provided [in sections 708.010-708.030]." Read together, section 2016.070 and sections 708.010-708.030 suggest the Legislature intended to limit authorized methods under the Civil Discovery Act to written interrogatories and document demands. In specifying those particular methods, the Legislature necessarily prohibited the use of other discovery methods authorized in Title 4, such as depositions or requests for admission. The same language does not preclude the use, however, of a subpoena duces tecum under Title 3 [(section 1985)]. Montiel also cites a number of cases in which courts have found the term "may" permits a party to choose whether to take a particular action, but does not allow the party to act in a manner not authorized by statute. We will not discuss each of the cases cited, which are factually and legally distinguishable. Suffice to say that those cases support an argument that a party choosing to serve a request for production of documents under section 2031.010 et seq. must comply with the procedures for doing so specified in the Civil Discovery Act.

2. On page 12, delete the first full paragraph on the page that begins "Moreover, under section 708.130, subdivision (a) . . . ."

3. On page 13, at the end of the first full paragraph, add as footnote 8 the following footnote:

⁸ In his petition for rehearing, Montiel does not address our determination that his failure to raise the inadequacy of the declaration of good cause in his motion to quash waived his right to seek review on that basis. Montiel apparently relies on Johnson v. Superior Court (1968) 258 Cal.App.2d 829 to argue the subpoena was "void" because it was accompanied by an inadequate declaration of good cause for the production of documents sought. Johnson did not hold failure to include a declaration of good cause renders an order enforcing a subpoena subject to attack at any time, however, but concluded the petitioner's refusal to produce documents based on an inadequate declaration of good cause was appropriate in that case because he complied with the procedures for a deposition subpoena under the Civil Discovery Act, which are not applicable here. Moreover, in Johnson, unlike here, the petitioner did not file a motion to quash that failed to raise the inadequacy of the declaration of good cause, but sought immediate writ review of a trial court order compelling him to comply with the invalid subpoena. Further, Montiel produced documents pursuant to the subpoena without seeking writ review of the order denying his motion to quash. Montiel also cites Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2018) 24 Cal.App.5th 115, in support of his argument the subpoena is"void on its face," but that case concerns a judgment void for lack of personal jurisdiction.

4. On page 14, at the end of the carryover paragraph from page 13, add as footnote 9 the following footnote:

⁹ In his petition for rehearing, Montiel also argues the March 2 order was void because the trial court lacked fundamental jurisdiction to make the order. The numerous cases he relies upon (not previously cited in support of this argument) regarding an entire absence of power to hear or determine a case or lack of subject matter jurisdiction are inapposite. Nor does Montiel address the authorities we cite holding that a party may forfeit a due process issue where a party has an opportunity to raise the issue but fails to do so. We likewise reject Montiel's assertion the error was prejudicial. Even if the March 2 order was void for lack of notice, we do not see how a different outcome was likely, when the trial court considered and denied his motion to quash the subpoena on the merits shortly thereafter.

5. On page 15, after the first paragraph of part II.F., add as footnote 10 the following footnote:

¹⁰ Montiel includes a lengthy argument in his petition for rehearing that creditors were not entitled to prevail on any of their discovery motions generally because the Civil Discovery Act cannot be used to enforce a subpoena. Montiel did not raise this issue in his opening or reply briefs on appeal, other than in connection with his argument that monetary, issue, and evidentiary sanctions in the trial court's April 2016 order were unauthorized, a point with which we agree. We will not address arguments raised for the first time in a petition for rehearing.

6. On page 15, first paragraph, after the citation to Behunin v. Superior Court, and before the last sentence that begins "Though we conclude," insert the following new paragraph:

Montiel argues he did not need to make a prima facie showing regarding application of the attorney-client privilege, because the facts regarding the existence of the attorney-client relationship and the fact the promissory note was a confidential communication made in the course of that relationship were undisputed. Relying on Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123 and BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1250-1252, he contends creditors' "tacit concessionthat each of the documents in the categories described on the exhibit to their [subpoena duces tecum] was a communication in the course of the lawyer client relationship 'established the facts necessary to support a prima facie case of privilege.' " The facts were not, however, undisputed. Creditors raised the absence of evidence regarding the relationship between the promissory note and attorney-client relationship both in their respondents' brief and in their motion to compel in the trial court. In their respondents' brief, creditors argued it is the duty of a party asserting a privilege to present evidence which establishes the existence of a communication that falls within the privilege, citing State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640-641. They then argued, "The only evidence Montiel supplied was his implication the promissory note was in payment for past attorney's fees and was privileged on that basis." In their motion to compel in the trial court, creditors similarly argued, "Montiel's alleged agreement to pay Smurro money or to encumber his real property is outside the scope of their attorney-client relationship. At this point, there is no evidence that the Smurro Deed of Trust resulted from Smurro's provision of legal services to Montiel." Because creditors challenged the basic facts supporting Montiel's privilege claim, he was required to make a prima facie showing the promissory note was a confidential communication during the course of the attorney-client relationship.

7. On page 15, at the end of the first paragraph, move the last sentence that begins "Though we conclude the promissory note is not privileged" behind the new paragraph just inserted and create a new full paragraph:

Though we conclude the promissory note is not privileged, we take no position on whether the other requested documents are privileged because that determination is still subject to review by the trial court after the privilege log has been provided.

There is no change in the judgment.

Appellant's petition for rehearing is denied.

Dated:

/s/_________

Margulies, Acting P.J.

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.

(San Francisco City & County Super. Ct. No. CPF-11 5116369)

Jesus Montiel appeals from a postjudgment order granting monetary, issue, and evidentiary sanctions against him and his attorney for failure to comply with court orders compelling the production of documents sought pursuant to a subpoena duces tecum. Shortly after judgment was entered against Montiel in the underlying litigation, he recorded a deed of trust in favor of his attorney, Thomas Smurro, against a commercial building Montiel owned. The deed of trust referenced an underlying promissory note to Smurro for $850,000. Creditors subsequently served an order for a debtor's examination on Montiel, accompanied by a subpoena duces tecum seeking, among other things, the promissory note and related documents.

Montiel sought several ex parte continuances of his debtor's examination based on his medical condition. The trial court granted continuances, denied a motion to quash the subpoena, ordered Montiel to produce documents, and imposed monetary sanctions for his failure to comply with court orders. Though Montiel eventually appeared for examination, he never produced the promissory note,...