Filed 3/22/13 Marriage of Castaneda CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)


In re the Marriage of MANUEL and REBECCA
CASTANEDA.
                                                                                             C067676
MANUEL CASTANEDA,
                                                                                (Super. Ct. No. 06FL07064)
                   Appellant,

         v.

REBECCA HANDAL,

                   Respondent.




         Manuel Castaneda (husband) appeals from a postjudgment order directing him to
produce documents responsive to a notice to produce documents at trial and to pay
$3,155 in monetary sanctions in the form of attorney fees and costs to Rebecca Handal
(wife) under Family Code section 271.1
         Husband contends the trial court abused its discretion and violated his federal and
state constitutional right to due process of law by basing the sanctions award on his and



1   Further unspecified section references are to the Family Code.

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his counsel‟s conduct at husband‟s deposition, a ground not asserted by wife in her
motion to compel. He claims that because he had no notice that sanctions might be
imposed based on what happened at his deposition, he was deprived of his statutory and
constitutional right to notice and an opportunity to be heard. He also asserts that the trial
court abused its discretion in summarily dismissing his request for attorney fees from
wife. He does not appeal that portion of the order directing him to produce documents.
       We shall conclude, as husband contends, that the sanctions award was based on
husband and husband‟s counsel‟s conduct at husband‟s deposition and not on husband‟s
objections to the notice to produce documents at trial. We shall further conclude,
however, that the lack of a reporter‟s transcript for the hearing on wife‟s motion to
compel requires us to assume that the trial court complied with its statutory and
constitutional obligations and informed the parties that it was considering imposing
sanctions based on husband and husband‟s counsel‟s conduct at the deposition and
provided husband an opportunity to address whether sanctions were proper on that basis.
Finally, we shall reject husband‟s contention that the trial court abused its discretion in
summarily dismissing his request for attorney fees from wife. Accordingly, we shall
affirm the order.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Husband and wife were married for 16 years and have one minor child. The
parties marriage was dissolved by a judgment of dissolution entered in March 2007. At
the end of 2009, husband filed a postjudgment motion to modify child and spousal
support based on his loss of employment. A trial was initially set for September 16,
2010, and later was continued to February 18, 2011.
       On August 22, 2010, wife served on husband a notice of taking husband‟s
deposition, which directed husband to bring with him to the deposition 33 categories of
documents. The deposition was twice re-noticed and was eventually set for February 3,
2011. Each amended notice was accompanied by an order directing husband to bring

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with him to the deposition 34 categories of documents. The categories of documents
requested largely pertained to husband‟s financial condition and efforts to obtain
employment.
       On January 28, 2011, wife served on husband a notice to produce documents at
trial pursuant to Code of Civil Procedure section 1987, subdivision (c), which requested
husband bring with him to trial 38 separate categories of documents. The categories of
documents specified were essentially the same as those set forth in the various deposition
notices.
       On February 2, 2011, husband served wife with his objections to the notice to
produce documents at trial.
       The following day, February 3, 2011, husband and his counsel appeared for
husband‟s deposition and brought with them documents responsive to some of the
document requests set forth in the notice of deposition.
       On February 9, 2011, wife provided notice to husband that she would be seeking
ex parte relief from the trial court the following day relating to her notice to produce
documents at trial. In her application, wife requested an ex parte order that husband
produce documents at trial pursuant to the notice to produce documents at trial, or an
order shortening time for a hearing on her motion for such an order, and requested
$2,592.50 in attorney fees and costs “associated with responding to [husband‟s]
objections” to the notice to produce documents at trial. No mention is made of husband‟s
deposition in the application.
       At the February 10, 2011, hearing on wife‟s ex parte application, the trial court
heard argument from both sides. The parties have not provided us with a copy of the
reporter‟s transcript from that hearing. The parties agree that the subject of husband‟s
deposition was raised at the hearing, the trial court expressed an interest in reviewing the
deposition transcript, and the trial court was provided with a copy of the transcript
without any objection. According to the trial court‟s order, husband‟s February 3, 2011,

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deposition was referenced during the hearing, and a copy of the deposition transcript was
provided to and reviewed by the trial court. Because the trial court “did not have the
benefit of a referenced deposition, motion to produce, and exhibits salient to the motion
or response,” it “afforded each party an opportunity . . . to provide . . . documents
relevant to each party‟s arguments” and ordered counsel to return on February 14, 2011,
“for further hearing and ruling.” In his written response, husband argued, among other
things, that wife‟s motion was made “without substantial justification” and sought
attorney fees from wife pursuant to section 271 and Code of Civil Procedure section
1987.2.
       At the February 14, 2011, hearing, the parties submitted the matter on the papers,
and the trial court granted wife‟s ex parte application. In a written “Order Following Ex
Parte Application Re Discovery and Sanctions,” prepared in advance of the hearing, the
trial court overruled husband‟s objections to the notice to produce documents at trial,
summarily dismissed his request for attorney fees from wife, and ordered him “to
produce four copies of each document at trial per [wife‟s] notice to produce documents
pursuant to Code of Civil Procedure section 1987 [subdivision] (c)” and “to tender
forthwith attorney fees in the sum of $3,075 and costs in the sum of $80 to [wife]
pursuant to Family Code section 271.” In deciding to order husband to pay wife attorney
fees and costs, the court concluded: “The deposition reveals a petitioner [husband] and
counsel [Ms. Katherine Codekas] who have demonstrated a clear effort to frustrate efforts
to reduce the cost of litigation with a lack of collaborative spirit or cooperation.” In
particular, the court found that “[t]he deposition . . . reflects dialogues between and
among counsel and the deponent that indicate an evident obfuscation perpetrated by [Ms.
Codekas]. On the one hand, [Ms. Codekas] refused to tender documents unmarked; and,
conversely, objected to having documents marked and copies thereafter furnished.
Rather than effecting an accommodation between professionals, it was evident that
[wife‟s] efforts to properly and professionally prepare for trial would not occur. At

                                              4
2:14 p.m., [husband] and [Ms. Codekas] departed the deposition and removed documents
purportedly marked by the court reporter. At 2:35 they returned and the deposition
resumed at 2:41 p.m. [¶] . . . Upon resuming, it appeared to the court that the deposition
proceeded with less acrimony, although particular tensions arose. A deposition serves
various professional forensic functions: it permits, for example, counsel to evaluate the
witness, or avenues for further or less discovery, or sets the stage for subsequent
impeachment, or assists counsel with an understanding of a particular area so that trial
time is not wasted. [Wife‟s] counsel was evidently engaged in this and more in the
conduct of [husband‟s] deposition. [Ms. Codekas] periodically interjected clarifications
and, at other times, interposed objections or comments. Some reserved issues for a
court‟s consideration, others less so. And, sadly, some of Ms. Codekas‟ comments at
counsel were clearly ad hominem (e.g., „Newbie,‟ „little associate,‟ „big associate‟).” The
court further observed that while it “comprehends an attorney‟s efforts at posturing
before his or her client, Ms. Codekas‟ name calling (e.g., „witch‟) of opposing counsel
(Ms. Chavis) is hardly conducive to the professionalism expected of an officer of the
court. . . . A reading of the deposition reveals that neither [husband] nor his counsel were
[sic] prudentially restrained.”
       The trial court summarily dismissed husband‟s request for attorney fees from wife
as “lacking good cause.”
                                      DISCUSSION
                                          I
 Husband Failed to Meet His Burden of Demonstrating Error with Respect to the Award
                         of Attorney Fees and Costs to Wife
       Husband‟s primary contention of appeal is that “[t]he trial court abused its
discretion and violated [his] constitutional right to due process of law by sanctioning
[him] for his conduct at his deposition without giving him the opportunity to be heard on
whether such sanctions were warranted.” According to husband, “[w]ife‟s ex parte



                                             5
motion for sanctions was based on husband‟s objections to her notice to produce
documents and things at trial, not on what happened at his deposition,” and that by
sanctioning him for what happened at his deposition, the trial court violated his statutory
and constitutional rights to notice and an opportunity to be heard.
       “[A] motion for attorney fees and costs in a dissolution proceeding is left to the
sound discretion of the trial court. [Citations.] In the absence of a clear showing of
abuse, its determination will not be disturbed on appeal. [Citations.] „[The] trial court‟s
order will be overturned only if, considering all the evidence viewed most favorably in
support of its order, no judge could reasonably make the order made. [Citations.]‟
[Citation.]” ( In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; In re Marriage
of Burgard (1999) 72 Cal.App.4th 74, 82 [imposition of sanction pursuant to section 271
is reviewed under abuse of discretion standard].) “The burden is on the complaining
party to establish abuse of discretion. [Citations.]” (In re Marriage of Rosevear (1998)
65 Cal.App.4th 673, 682.)
       “ „Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the appellant‟s burden to affirmatively
demonstrate error.‟ [Citation.] „ “We must indulge in every presumption to uphold a
judgment, and it is [husband‟s] burden on appeal to affirmatively demonstrate error–it
will not be presumed. [Citation.]” [Citations.]‟ [Citation.]” (People v. Sullivan (2007)
151 Cal.App.4th 524, 549 (Sullivan).) Not only does husband bear the burden of
demonstrating that he did not receive notice that the trial court was considering imposing
sanctions based on what happened at his deposition or an opportunity to be heard as to
whether sanctions were appropriate on that basis, but he further bears the burden of
providing a record on appeal that affirmatively shows there was an error below, and any
uncertainty in the record must be resolved against him. (Ibid.) With these principles in
mind, we turn to husband‟s contention.



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       Section 271 provides in pertinent part: “Notwithstanding any other provision of
this code, the court may base an award of attorney‟s fees and costs on the extent to which
the conduct of each party or attorney furthers or frustrates the policy of the law to
promote settlement of litigation and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys. An award of attorney‟s fees
and costs pursuant to this section is in the nature of a sanction.” (Id., at subd. (a).) “An
award of attorney‟s fees and costs as a sanction pursuant to this section shall be imposed
only after notice to the party against whom the sanction is proposed to be imposed and
opportunity for that party to be heard.” (Id., at subd. (b).) “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. (Cal. Const., art. I, § 7; U.S. Const.,
14th Amend.)” (O’Brien v. Cseh (1983) 148 Cal.App.3d 957, 961.)
       As a preliminary matter, we agree with husband that the trial court based its
sanctions award on what happened at husband‟s deposition as opposed to husband‟s
objections to wife‟s notice of motion to produce documents at trial. In awarding wife her
attorney fees and costs, the trial court specifically referenced the husband‟s and Ms.
Codekas‟s conduct at husband‟s deposition. The paragraph of the trial court‟s order
which addresses wife‟s request for attorney fees and costs states: “The deposition reveals
a petitioner [husband] and counsel [Ms. Codekas] who have demonstrated a clear effort
to frustrate efforts to reduce the cost of litigation with lack of collaborative spirit or
cooperation.” That is the only conduct mentioned by the trial court as a basis for its
sanctions award.
       Wife‟s contention that the sanctions award was based on husband‟s and Ms.
Codekas‟s refusal to produce documents on “multiple occasions and at Trial . . . , filing
frivolous objections, [and] forcing [an] ex parte hearing on a motion to compel” is at odds
with the court‟s written order and is otherwise not supported in the record. Moreover, the
trial court could not have properly based its sanctions award on husband‟s objections to

                                               7
the notice to produce documents at trial because, as husband argued, the notice lacked the
requisite specificity. Pursuant to Code of Civil Procedure section 1987, subdivision (c),
“The notice shall state the exact materials or things desired and that the party or person
has them in his or her possession or under his or her control.” (Italics added; see also see
also Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group
2012) ¶¶ 1:115 to 1:115.1, p. 1-29 (rev. # 1, 2012) [“For discovery purposes, a party may
compel document production by reasonably describing a category of documents . . . . [¶]
But to obtain production at trial, the description must be „exact‟ (e.g., „letter dated
June 21, 1990, written by Harry A. Jones to Paula Smith, captioned “Re XYZ” and
marked as Exhibit “A” in Smith‟s deposition‟). [¶] . . . This prevents parties from using
a „notice to produce‟ for discovery purposes after discovery is closed”].) Contrary to the
language of Code of Civil Procedure section 1987, wife‟s notice did not specify “exact”
materials to be brought to trial. Rather, in the manner of a discovery request, it listed
broad categories, instructing husband to bring documents fitting those categories, should
any exist. Thus, the trial court should have concluded that the notice failed to satisfy the
requirements of section 1987 and denied wife‟s motion to compel. Because we conclude
the sanctions award was not based on husband‟s objections to the notice to produce
documents at trial, and husband does not appeal the portion of the trial court‟s order
directing him to produce documents responsive to the notice to produce documents or
things at trial, we shall not disturb that portion of the trial court‟s order.
       Husband is also correct in his assertion that wife‟s ex parte motion to compel,
which included her request for sanctions in the form of attorney fees and costs, made no
mention of husband‟s deposition. Rather, the motion was directed at husband‟s
objections to the notice to produce documents at trial.
       Turning, finally, to husband‟s contention that “[t]he trial court erred in sanctioning
husband for what happened at his deposition without giving him the requisite notice and
opportunity to be heard,” we find that our ability to address this contention is precluded

                                                8
by the lack of a complete record in this case, particularly, the lack of a reporter‟s
transcript of the ex parte hearing where the subject of husband‟s deposition was first
raised. (See Sullivan, supra, 151 Cal.App.4th at pp. 548-550.) We know from the trial
court‟s order that Ms. Codekas appeared at the hearing, husband‟s deposition was
referenced at the hearing, the trial court was provided with and reviewed a copy of the
transcript of that deposition, and that the trial court based its sanctions award on
husband‟s and Ms. Codekas‟s conduct at that deposition. Without the reporter‟s
transcript of the hearing, we do not have before us the content of what transpired at the
hearing, including any notice given to husband that the court was considering imposing
sanctions based upon what happened at his deposition, arguments made in relation
thereto, or any inquiry made by the trial court before imposing the sanctions. Thus, no
error affirmatively appears in the record before us, as it would, for instance, if we could
consult the transcript and determine that no notice or opportunity to be heard was given.
(See id. at p. 548 and fn. 7.) Even assuming, as husband contends, that he was entitled to
written notice under section 271, we likewise must presume that he waived the lack of
written notice either expressly or by failing to object to the lack thereof at the hearing.
(Sullivan, supra, at p. 549.)
       Also implicated here is the rule articulated in Evidence Code section 664 that
“ „[c]ourt and counsel are presumed to have done their duty in the absence of proof to the
contrary.‟ [Citations.] The general rule is „ “that a trial court is presumed to have been
aware of and followed the applicable law. [Citations.]” [Citations.] This rule derives in
part from the presumption of Evidence Code section 664 “that official duty has been
regularly performed.” ‟ [Citation.] The effect of the rebuttable presumption created by
section 664 is „ “to impose upon the party against whom it operates the burden of proof
as to the nonexistence of the presumed fact.” [Citation.]‟ [Citations.]” (Sullivan, supra,
151 Cal.App.4th at pp. 549-550.) In the absence of a reporter‟s transcript, we must
assume the trial court followed established law and informed the parties that it was

                                              9
considering imposing sanctions based on what happened at husband‟s deposition and
provided husband with an opportunity to address whether sanctions were appropriate on
that basis before the court imposed sanctions. (See id. at p. 550; see also People v.
Carter (2003) 30 Cal.4th 1166, 1214-1215 [absent any contrary indication in the record, a
reviewing court must assume that the trial court followed established law related to notice
and an opportunity to be heard].)
       Because the record on appeal fails to support husband‟s claim that he never
received notice that the court was considering imposing sanctions on him for what
happened at his deposition or an opportunity to argue why it would be improper to
sanction him on that basis, he has failed to satisfy his burden on appeal. (Sullivan, supra.
151 Cal.App.4th at p. 459.)
       Having reviewed the deposition transcript in its entirety, we find that the trial court
acted well within its discretion in awarding wife her attorney fees and costs based on
husband‟s and Ms. Codekas‟s conduct at husband‟s deposition. (In re Marriage of
Sullivan, supra, 37 Cal.3d at pp. 768-769.) There is ample support for the trial court‟s
conclusion that husband and his counsel “demonstrated a clear effort to frustrate efforts
to reduce the cost of litigation with a lack of collaborative spirit or cooperation.” As the
trial court found, Ms. Codekas refused to provide documents responsive to the documents
requested in the notice of deposition to wife‟s counsel as a group so that she could
quickly review them. Rather, Ms. Codekas indicated she would give them to wife‟s
counsel one-by-one during the deposition as each document was identified. Later, when
wife‟s counsel sought to have the first document marked as an exhibit, Ms. Codekas
insisted that wife‟s counsel first make a copy. When wife‟s counsel requested that Ms.
Codekas provide her with all of the documents so that she could copy them all at once,
Ms. Codekas again refused, insisting instead that that wife‟s counsel copy the documents
one at a time throughout the deposition. When wife‟s counsel objected, Ms. Codekas
accused her of being “lazy.” Ms. Codekas continued to insult wife‟s counsel throughout

                                             10
the deposition and engaged in other unprofessional and obstreperous conduct too
numerous to list here. Although the trial court‟s order does not set forth its calculations,
impliedly the court determined an award based on the extent to which husband‟s and Ms.
Codekas‟s conduct frustrated the policy set forth in section 271. (§ 271, subd. (a); see
also Sullivan, supra, 151 Cal.App.4th at pp. 549-550; In re Marriage of Feldman (2007)
153 Cal.App.4th 1470, 1479-1480 [section 271 does not set forth any requirement of
separate injury to the complaining spouse as a precondition to the imposition of
sanctions].)
                                          II
   The Trial Court Did Not Abuse Its Discretion in Summarily Dismissing Husband‟s
                        Request for Attorney Fees from Wife
       Finally, we reject husband‟s assertion that the trial court abused its discretion in
summarily dismissing his request for attorney fees from wife. Husband requested an
award of attorney fees pursuant to section 271 and Code of Civil Procedure section
1987.2. As relevant here, Code of Civil Procedure section 1987.2, subdivision (a), vests
trial courts with discretion to award attorney fees incurred in opposing a motion to
compel the production of documents or things at trial if the court finds the motion was
made in bad faith or without substantial justification. As previously discussed, section
271, subdivision (a), provides that “the court may base an award of attorney‟s fees and
costs on the extent to which the conduct of each party or attorney furthers or frustrates the
policy of the law to promote settlement of litigation and, where possible, to reduce the
cost of litigation by encouraging cooperation between the parties and attorneys.”
       The record does not support a finding that the motion to compel was filed in bad
faith or for any improper purpose. Although, as set forth above, the trial court should
have denied the motion because the notice to produce documents at trial lacked the
requisite specificity, the motion‟s lack of merit alone does not mandate an award of
attorney fees to the opposing party under either section 271 or Code of Civil Procedure



                                             11
section 1987.2. Such an award is discretionary. (Code Civ. Proc, § 1987.2, subd. (a);
§ 271.) Husband‟s and Ms. Codekas‟s conduct in thwarting wife‟s “efforts to properly
and professionally prepare for trial,” as set forth in the trial court‟s written order,
provided the trial court with sufficient grounds for denying husband‟s request for attorney
fees against wife. Moreover, given the trial court‟s comments and its summary rejection
of husband‟s request for attorney fees from wife, we are confident the trial court would
have denied husband‟s request even if it had denied wife‟s motion to compel.
                                        DISPOSITION
       The February 14, 2011, “Order Following Ex Parte Application Re Discovery and
Sanctions” is affirmed. Wife is awarded her costs on appeal. (Cal. Rules of Court, rule
8.278(a)(1) & (2).)



                                               BLEASE                     , Acting P. J.


We concur:


          HULL                       , J.


          HOCH                       , J.




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