Filed 8/14/14

                      CERTIFIED FOR PARTIAL PUBLICATION*



                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                     DIVISION TWO


SCOTT CARLTON,

        Plaintiff and Appellant,                     E056566

v.                                                   (Super.Ct.No. CIVVS1103729)

DR. PEPPER SNAPPLE GROUP, INC. et                    OPINION
al.,

        Defendants and Respondents.



        APPEAL from the Superior Court of San Bernardino County. Marsha Slough,

Judge. Affirmed in part; reversed in part.

        Law Offices of Foroozandeh and Majid Foroozandeh for Plaintiff and Appellant.

        Crone Hawxhurst, Gerald E. Hawxhurst and Daryl M. Crone for Defendants and

Respondents.




        *  Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of Discussion, parts C and D.


                                             1
       In a second amended complaint (SAC), plaintiff and appellant Scott Carlton

(Carlton) sued defendants and respondents (1) Dr. Pepper Snapple Group, Inc. (Dr.

Pepper); (2) Mott’s LP (Mott’s); (3) Larry D. Young (Young); (4) Caesar Vargas

(Vargas); and (5) Graham Bailey (Bailey). The causes of action included (a) wrongful

termination against Dr. Pepper and Mott’s; (b) sex discrimination against all defendants;

and (c) breach of contract against Dr. Pepper and Mott’s. The trial court sustained,

without leave to amend, the demurrer of Dr. Pepper, Vargas, Bailey, and Mott’s. The

trial court also sanctioned Carlton and his trial counsel jointly and severally in the amount

of $1,360 due to Carlton’s “wholly unjustified” interrogatory responses.

       The only respondent on appeal is Dr. Pepper; the other defendants are not

respondents in this appeal. Carlton contends the trial court erred by granting the

demurrer because the demurrer was untimely. Next, Carlton asserts the demurrer

improperly included the breach of contract cause of action, and therefore the trial court

erred by sustaining the demurrer on that cause of action. Lastly, Carlton contends the

trial court erred by imposing sanctions. We reverse in part, and affirm in part.

                     FACTUAL AND PROCEDURAL HISTORY

       A.     INCIDENT

       The facts in this subsection are taken from the SAC. In the SAC, Carlton asserts

he was “employed with the company.” It is unclear if Carlton’s employer was Dr. Pepper

or Mott’s. Carlton contends he worked as a production manager for the company

beginning in April 2009 and had an unblemished performance record. On December 16,

2010, Carlton was at a bi-weekly management meeting with Terry Gordon, Blaise


                                             2
Batush, Tammy Sloan (Sloan), and Steve Summey. While waiting for the meeting to

begin, Carlton received a text message on his personal cell phone.

       Carlton looked at the message in plain view of Sloan, who was seated to Carlton’s

immediate right. The textual portion of the message read, “‘Hope your day is going

better th[a]n this guy.’” A picture included with the message reflected “a man sitting on

a toilet with his penis appearing to be caught between the base of the toilet and the seat.”

Carlton handed the telephone to Sloan, who laughed and said, “‘I’d like to meet this

man.’” Sloan showed the text message to Steve Summey who also found the message

humorous, and the telephone was returned to Carlton. Terry Gordon asked “what is so

funny,” so Carlton gave the telephone to him, and he also found the message humorous.

Passing around the telephone lasted approximately 30 seconds, then the meeting began,

and the meeting lasted approximately 45 minutes.

       Later that same day, Sloan was in Carlton’s office when Bailey entered. Bailey is

a manager. Sloan told Bailey, “‘[Y]ou’ve got to see this picture.’” Carlton said, “‘This is

[Sloan’s] new boyfriend.’” Bailey responded, “‘Oh my God . . . poor guy!’” Sloan and

Bailey then left Carlton’s office.

       Vargas works in human resources. On December 16, 2010, Vargas instructed

Carlton to accompany Vargas to the human resources office. Vargas informed Carlton

that Vargas had received several complaints about the picture; however, Carlton alleges

only one complaint was made and it came from Steve Summey. Bailey joined the

meeting and told Carlton he “‘take[s] this stuff very seriously.’” Bailey suspended

Carlton pending an investigation. Carlton was ordered to return his badge, company cell


                                              3
phone, and keys. Due to the suspension, Carlton sought medical treatment for anxiety

and suicidal ideations. Carlton was terminated effective December 21, 2010, “for

‘inappropriate behavior and failure to follow [the] Anti-Harassment Policy.’” Bailey

signed Carlton’s termination letter. No one else was suspended or terminated in

connection with sharing the picture.

       B.     ORIGINAL AND FIRST AMENDED COMPLAINTS

       On July 15, 2011, Carlton filed his original complaint against Dr. Pepper, Young,

Vargas, and Bailey. The complaint included causes of action for wrongful termination,

sexual discrimination, and breach of contract. On October 24, 2011, Carlton filed his

first amended complaint (FAC), which added Mott’s as a defendant and omitted the

sexual discrimination cause of action. In the FAC, the wrongful termination cause of

action was brought against all defendants, and the breach of contract action was against

Dr. Pepper and Mott’s.

       The wrongful termination cause of action set forth the facts of the text

message/picture sharing incident and subsequent termination, described ante. The breach

of contract cause of action included allegations that Carlton could not be fired without

cause and that Carlton had an unblemished performance record. Carlton asserted he had

an employment contract guaranteeing a safe and friendly environment free of verbal

harassment. In the breach of contract claim, Carlton asserted he was falsely accused of

sexual harassment and therefore “wrongfully terminated.”




                                             4
       Dr. Pepper, Mott’s,1 Vargas, and Bailey (collectively “defendants”) demurred to

the FAC.2 Defendants asserted the wrongful termination cause of action could only be

brought against an employer, thus the individual defendants could not be sued for

wrongful termination. In regard to Mott’s and Dr. Pepper, defendants argued the

wrongful termination cause of action failed because Carlton did not allege the companies

violated public policy. In regard to Carlton being the only employee who was fired,

defendants asserted Carlton was the only employee who showed the picture to a female

employee (Sloan).

       As to the breach of contract cause of action, defendants asserted the action failed

due to uncertainty. Defendants argued Carlton did not allege (1) whether the contract

was written, oral, or implied; (2) the essential terms of the contract; (3) his performance

of the contract; (4) how all defendants breached the contract; and (5) how Carlton was

damaged by the breach.

       On January 5, 2012, the trial court held a hearing on the demurrer to the FAC. At

the beginning of the hearing, the trial court explained that the wrongful termination cause

of action “needs to be amended to clearly layout the rationale, or reasons for—purported

reasons for the termination.” The court also noted that wrongful termination could not be

brought against individual, non-employer, defendants. The court concluded Carlton “laid


       1   Motts made a special appearance.

       2On October 25, 2011, the trial court dismissed the case with prejudice as to
Young. Young was the President and CEO of Dr. Pepper, who had never met Carlton
and was not involved in the decision to terminate Carlton’s employment.


                                              5
out the requisite elements for breach of contract.” Therefore, the court said its tentative

opinion was to sustain the demurrer for the wrongful termination action, but overrule the

demurrer for the breach of contract action. The court adopted its tentative opinion as its

ruling. In regard to amending, the court gave Carlton 30 days to amend as to the

company, but denied leave to amend the wrongful termination action as to the individual

defendants.

       C.      SECOND AMENDED COMPLAINT

       On February 3, 2012, Carlton filed his SAC, listing Dr. Pepper, Mott’s, Vargas,

Bailey, and Young as defendants. The SAC included three causes of action:

(1) wrongful termination against Dr. Pepper and Mott’s; (2) breach of contract against

Dr. Pepper and Mott’s; and (3) sex discrimination against all defendants. The wrongful

termination action again set forth the factual allegations of Carlton sharing the text

message/picture and being terminated.

       The breach of contract cause of action again included allegations that Carlton

could not be fired without cause and that Carlton had an unblemished performance

record. Carlton again asserted he had an employment contract guaranteeing a safe and

friendly environment free of verbal harassment. The breach of contract claim again

reflected Carlton was falsely accused of sexual harassment and therefore “wrongfully

terminated.”

       In the sexual discrimination cause of action, Carlton alleged that by terminating

Carlton, but not Sloan, for sharing the picture, Carlton was singled out due to his gender.

Carlton further alleged that Bailey created a hostile work environment for Carlton by


                                              6
harassing him “with name calling like, ‘Gay guy,’ suggesting that he works out at

‘Curves’ a female gym and further suggesting that [Carlton] sleeps with other men.”

       An exhibit was included with the SAC. The exhibit was a right to sue letter from

the California Department of Fair Employment and Housing. The letter reflected Carlton

could sue Mott’s due to being terminated based upon sex discrimination.

       D.      DEMURRER

       On March 9, 2012, defendants filed a demurrer to the SAC. As to the wrongful

termination cause of action, defendants argued Carlton failed to allege Mott’s and Dr.

Pepper violated a public policy. In regard to the breach of contract cause of action,

defendant asserted the allegations were uncertain because Carlton failed to allege

(1) whether the contract was oral or written, (2) the essential terms of the contract,

(3) Carlton’s performance of the contract, (4) a breach by Dr. Pepper and Mott’s, and

(5) how Carlton was damaged.

       As to the sex discrimination cause of action, defendant asserted individual

defendants could not be liable for a management decision later found to be

discriminatory. Vargas was the human resources official who suspended Carlton, and

Bailey was the manager who signed Carlton’s termination letter. Therefore, defendants

argued the individual defendants could not be liable. Further, defendants asserted Carlton

failed to exhaust his administrative remedies because he filed his original complaint,

which included the discrimination claim, approximately five months before receiving his

right to sue letter.




                                              7
       Additionally, defendants asserted the discrimination cause of action failed because

the administrative complaint did not set forth the details of the alleged discrimination, it

only reflected Carlton was terminated as a result of sex discrimination and so that the

employer could “replace [Carlton] with a more favorable employee.” Further, defendants

asserted the discrimination claim could not be maintained against Dr. Pepper or the

individual defendants because only Mott’s was named in the administrative complaint.

Lastly, defendants argued Carlton’s sex discrimination claim failed as to all defendants

because Carlton failed to allege he was a member of a protected class, in that he alleged

he is male and the employee who replaced him is also male.

       On April 2, 2012, Carlton filed an objection to the demurrer. Carlton asserted

defendant’s demurrer was untimely because “[a]ccording to Rule [3.]1320(j) a party has

10 days to answer or otherwise plead to the complaint or the remaining causes of action”

(1) when a demurrer is overruled, (2) following the expiration of the time to amend, if the

demurrer was sustained with leave to amend, or (3) following “[t]he sustaining of the

demurrer if the demurrer was sustained without leave to amend.” Carlton asserted he was

given until February 20, 2012, to amend the FAC, so defendants exceed their time to

demurrer to the SAC.

       E.     HEARING

       On April 11, 2012, the trial court held a hearing on defendants’ demurrer to

Carlton’s SAC. The trial court asked Carlton’s attorney (Foroozandeh) to explain his

objection to the demurrer. Foroozandeh explained, “On January 5, 2012, you granted

leave to amend the first amended complaint. So they have 30 days to answer. That


                                              8
would put it on February 5, 2012. Now, ten days to demurrer, plus five days for mailing,

your Honor, that would put it around February 20th. So, the demurrer is untimely.”

       Defendants argued that the Rule of Court cited by Carlton conflicted with Code of

Civil Procedure section 471.5,3 which grants 30 days (not 10 days) to respond to an

amended complaint. Additionally, defendants asserted Carlton’s objection to the

demurrer was “an invented reason” because Carlton defaulted on opposing the

demurrer—the objection was filed two days after the deadline passed to oppose the

demurrer.

       The trial court overruled Carlton’s objection. The trial court explained, “I do not

think it is the appropriate legal response to object to it as being untimely . . . .”

Foroozandeh requested two weeks to respond to the demurrer. The court denied the

request and explained the argument about the untimely demurrer should have been

presented in a “proper opposition to the demurrer,” which would have also set forth

reasons why the demurrer was not well founded.

       The trial court asked Foroozandeh how the wrongful termination cause of action in

the SAC was different from the FAC. Foroozandeh explained that the individual

defendants had been removed but he believed no additional facts needed to be alleged

after the FAC; he believed the problem with the wrongful termination claim in the FAC

only concerned needing to remove the individual defendants. Defendants asserted the



       3 All subsequent statutory references will be to the Code of Civil Procedure unless
otherwise indicated.


                                                9
court sustained the demurrer to the FAC with leave to amend on the wrongful termination

claim, as to the company, so that Carlton could allege sufficient facts.

       Defendants asserted the wrongful termination and discrimination claims were

intertwined. Defendants argued both claims failed against Dr. Pepper because only

Mott’s was named in the administrative complaint. Defendants also asserted the

discrimination claim failed because the fact that Sloan was not fired did not create a

cause of action—Carlton could properly be fired for his admitted act of sharing the

picture.

       As to the breach of contract cause of action, defendants asserted Carlton admitted

not having a written contract, but failed to plead the specifics of an oral or implied

contract. Defendants argued that Carlton only alleged he had to be fired for cause, and

the complaint reflected Carlton was fired for cause; therefore, Carlton had “pled himself

out of the court,” and also failed to plead the required specifics of the contract.

       Carlton’s attorney (Foroozandeh) argued that everyone in the workplace should be

treated equally, so the other people that shared the picture should have been admonished

in the same way. Foroozandeh further argued that it was inappropriate for a manager to

insinuate a person is homosexual regardless of whether the person is heterosexual or

homosexual. In regard to the breach of contract claim, Foroozandeh argued the specifics

of the oral contract “need[] to come out during the trial, it needs to come out during

discovery.”

       Defendants asserted Foroozandeh was not arguing that Carlton was wrongfully

terminated; rather, he was arguing that other people should have been fired as well.


                                              10
Defendants argued that whether Sloan was fired is irrelevant. Foroozandeh again argued

it was wrong to single out one person for punishment when multiple people were

involved. Foroozandeh also argued the court had already overruled the demurrer to the

FAC for the breach of contract action, so the demurrer should not be sustained for that

claim since “[n]othing has changed.”

       Foroozandeh concluded, “The facts are exactly what they are, and we intend to go

to trial and prove it.” The court asked, “Are you telling me you have no additional facts

to plead?” Foroozandeh responded, “Not at this time, your Honor.” The trial court

sustained the demurrer as to all three causes of action without leave to amend.

                                       DISCUSSION

       A.     UNTIMELY DEMURRER

       Carlton contends defendants’ demurrer to the SAC was untimely because

defendants had only 10 days after the filing of the SAC to file a demurrer. Dr. Pepper

asserts Carlton failed to provide sufficient legal argument, and therefore this court may

dismiss the issue. We choose to address the merits of the contention because Carlton

provided some legal argument.

       “‘“The interpretation of a statute is a question of law, which we review de novo.

[Citation.]” [Citation.]’ [Citation.] ‘Under settled canons of statutory construction, in

construing a statute we ascertain the Legislature’s intent in order to effectuate the law’s

purpose. [Citation.] We must look to the statute’s words and give them their usual and

ordinary meaning. [Citation.] The statute’s plain meaning controls the court’s

interpretation unless its words are ambiguous. If the plain language of a statute is


                                             11
unambiguous, no court need, or should, go beyond that pure expression of legislative

intent. [Citation.]’ [Citation.] ‘In doing so, however, we do not consider the statutory

language in isolation. [Citation.] Rather, we look to the “entire substance of the statute”

. . . in order to determine the scope and purpose of the provision . . . .” [Citation.] We

avoid any construction that would produce absurd consequences.’ [Citation.] It is a

‘basic rule of statutory construction [that]: insofar as possible, we must harmonize code

sections relating to the same subject matter and avoid interpretations that render related

provisions nugatory.’ [Citation.]” (Bright v. 99cents Only Stores (2010) 189

Cal.App.4th 1472, 1477-1478.)

       California Rules of Court, rule 3.1320(j) provides, “Unless otherwise ordered,

defendant has 10 days to answer or otherwise plead to the complaint or the remaining

causes of action following: [¶] (1) The overruling of the demurrer; [¶] (2) The expiration

of the time to amend if the demurrer was sustained with leave to amend; or [¶] (3) The

sustaining of the demurrer if the demurrer was sustained without leave to amend.”

       Section 471.5, subdivision (a) provides, in relevant part, “If the complaint is

amended, a copy of the amendments shall be filed . . . and a copy of the amendments or

amended complaint must be served upon the defendants affected thereby. The defendant

shall answer the amendments, or the complaint as amended, within 30 days after service

thereof, or such other time as the court may direct, and judgment by default may be

entered upon failure to answer, as in other cases.”

       California Rules of Court, rule 3.1320(j) provides a 10-day filing period, while the

statute provides a 30-day filing period. The statute only applies when an amended


                                             12
complaint is filed. Therefore, to read the statute and rule in harmony, the rule must be

read to apply when an amended complaint is not filed. Thus, the 10-day rule would apply

when a plaintiff is granted leave to amend but elects not to amend, and the statute’s 30-

day period would apply when a plaintiff does amend.

       In this case, since Carlton did amend by filing the SAC, the statute’s 30-day filing

period applied. The SAC was mailed from within California to defendants’ attorney on

February 3, 2012. Service by mail from within California adds five calendar days.

(§ 1013, subd. (a).) Therefore, service would have been February 8, 2012. February had

29 days in 2012. The first day is excluded (§ 12), which makes March 9 the 30th day.

Defendants’ demurrer to the SAC was filed on March 9, 2012. Accordingly, the

demurrer was timely.

       Carlton asserts the 10-day rule period applies when a complaint is amended

following a demurrer, while the statute’s 30-day period applies when a plaintiff elects to

amend “in due course.” Carlton’s interpretation of the statute is problematic because the

statute is not limited to particular situations. The plain language of the statute reflects

that it applies when “the complaint is amended.” (§ 471.5, subd. (a).) The statute takes

precedence over the rule of court (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 533),

which explains why the rule of court cannot apply when an amended complaint is filed—

the statute’s 30-day rule has precedence. Thus, the rule only applies when an amended

complaint is not filed.




                                              13
         B.     BREACH OF CONTRACT

         Carlton contends the trial court erred by sustaining the demurrer as to the breach

of contract cause of action in the SAC because the trial court overruled the demurrer to

the breach of contract cause of action in the FAC, and no changes were made to the cause

of action in the SAC.

         Dr. Pepper asserts Carlton forfeited this issue by failing to raise it in the trial court.

Our review of the record reflects Carlton did raise the issue in the trial court, and

therefore the contention is not forfeited. Specifically, Foroozandeh said, “[T]he demurrer

was overruled as to the second cause of action, breach of contract. Nothing has changed

since then. So the Court has already ruled on that then.”

         In a prior opinion, this court, quoting another appellate court, wrote, “‘The

interests of all parties are advanced by avoiding a trial and reversal for defect in

pleadings. The objecting party is acting properly in raising the point at his first

opportunity, by general demurrer. If the demurrer is erroneously overruled, he is acting

properly in raising the point again, at his next opportunity. If the trial judge made the

former ruling himself, he is not bound by it. [Citation.] And, if the demurrer was

overruled by a different judge, the trial judge is equally free to reexamine the sufficiency

of the pleading. [Citations.]’ (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d

868, 877 [First Dist., Div. Two].)” (Pacific States Enterprises, Inc. v. City of Coachella

(1993) 13 Cal.App.4th 1414, 1420, fn. 3 [Fourth Dist., Div. Two]; see also Herrera v.

Federal Nat. Mortg. Assn. (2012) 205 Cal.App.4th 1495, 1508-1509 [Fourth Dist., Div.

Two].)


                                                 14
       The Sixth District Court of Appeal has also concluded, “[A] party is within its

rights to successively demur to a cause of action in an amended pleading notwithstanding

a prior unsuccessful demurrer to that same cause of action. (Pavicich v. Santucci (2000)

85 Cal.App.4th 382, 389.)” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178

Cal.App.4th 1020, 1036.)

       Given the foregoing reasoning and rules from this court and others, the trial court

could properly consider the demurrer to the entire SAC. When Carlton filed the SAC, he

exposed himself to the possibility of a demurrer being filed and sustained to the entire

SAC. Accordingly, we conclude the trial court did not err by sustaining the demurrer to

the breach of contract cause of action.

       Carlton cites the motion for reconsideration statute (§ 1008) and asserts a motion

for reconsideration was defendants’ exclusive path to have the trial court again consider a

demurrer to the breach of contract cause of action. We would agree with Carlton, if he

had not filed the SAC. However, by filing the SAC, Carlton opened the door to a

demurrer to the entire SAC, including the breach of contract cause of action. The SAC

superseded the FAC, which permitted a demurrer to the entire SAC to be filed. (See

Meyer v. State Bd. of Equalization (1954) 42 Cal.2d 376, 384 [“It is well established that

an amendatory pleading supersedes the original one, which ceases to perform any

function as a pleading”].)

       C.     REMAINING DEMURRER ISSUES

       In Carlton’s “Statement of the Case,” in his Appellant’s Opening Brief, he raises

two other appellate issues related to the demurrer. The first of those two issues is that


                                             15
“defendants’ demurrer to the SAC went beyond the scope” of the trial court’s ruling

concerning the demurrer to the FAC. Carlton does not provide argument as to this issue,

but we infer it is related to, if not identical to, the foregoing issue regarding the breach of

contract cause of action. Since Carlton does not provide a header, legal citations, record

citations, or analysis related to this issue, we deem it to be abandoned. (Benach v. County

of Los Angeles (2007) 149 Cal.App.4th 836, 852; see also Cal. Rules of Court, rule

8.204(a)(1)(B)&(C).)

       The second of the two issues is that the trial court erred “in sustaining the entire

demurrer without leave to amend.” It is unclear (1) if this is also related to the breach of

contract issue discussed ante; (2) if it is about the substance of the allegations in the three

causes of action; or (3) if is focused on leave to amend. Since Carlton does not provide a

header, legal citations, record citations, or analysis related to this issue, we deem it to be

abandoned. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852; see also

Cal. Rules of Court, rule 8.204(a)(1)(B)&(C).)

       D.      SANCTIONS

               1.     PROCEDURAL HISTORY

                      a)      Substance

       In March 2012, Dr. Pepper filed motions to compel supplemental responses from

Carlton to (1) the first set of form interrogatories; (2) the first set of special

interrogatories; (3) the first set of employment law form interrogatories; and (4) the first

set of requests for production. In the motions, Dr. Pepper requested $2,555 for the

attorneys’ fees and costs Dr. Pepper spent preparing the motions to compel.


                                               16
       The following are two examples of Carlton’s initial discovery responses: First, in

the employment law form interrogatories, defendants asked, “Do you contend that the

EMPLOYMENT relationship was not ‘at will’? If so: [¶] (a) State all facts upon which

you base this contention; [¶] (b) State the name, ADDRESS, and telephone number of

each PERSON who has knowledge of those facts; and [¶] (c) Identify all DOCUMENTS

that support your contention.” Carlton responded, “Yes.”

       Second, also in the employment law form interrogatories, defendants asked, “Do

you contend that the EMPLOYMENT relationship was governed by any agreement—

written, oral, or implied? If so: [¶] (a) State all facts upon which you base this

contention; [¶] (b) State the name, ADDRESS, and telephone number of each PERSON

who has knowledge of those facts; and [¶] (c) Identify all DOCUMENTS that support

your contention.” Carlton responded, “Yes.”

       Carlton did not file any opposition to the motions to compel. The trial court

addressed the motions to compel at the same hearing in which the court addressed

defendants’ demurrer to the SAC. During the hearing, defendants described Carlton’s

discovery responses as “appalling.” Carlton said, “I believe that sanctions are not

warranted. The facts are exactly what they are, and we intend to go to trial and prove it.”

       In its ruling, the trial court said, “I will indicate that I do not believe that the

responses were appropriate. They were not just not appropriate, but they bordered on

being wholly-inappropriate. [¶] The Court will grant the motion to compel for purposes

of issuing sanctions. I will issue sanctions, a total amount of six hours, $200 per hour.




                                               17
That’s $1,200, plus filing fee.” The court added $160 for the fees for filing four motions.

The sanctions total was $1,360.

                     b)     Timeline

       On September 16, 2011, Dr. Pepper mailed Carlton, from within California, the

three different sets of interrogatories and request for production detailed ante. On

November 4, 2011, Carlton sent Dr. Pepper his responses to the interrogatories, via

Federal Express and the United States Postal Service from within California.

       On November 28, 2011, Dr. Pepper’s attorney’s office sent an e-mail to Carlton’s

attorney’s office requesting to postpone discovery. Specifically, the e-mail reflects, “We

have a couple of deadlines coming up regarding discovery. Given that we have filed a

demurrer and a motion to strike the first amended complaint, can we agree to postpone

discovery until after the motions are heard?” On December 1, via e-mail, Carlton’s

attorney agreed to the request. On December 5, Dr. Pepper’s attorney’s office sent an e-

mail confirming that the postponement included “any deadlines to file motions to

compel.” Carlton’s attorney did not respond to say he agreed or disagreed with including

motions to compel in the postponed deadlines.

       The court held the hearing on defendants’ demurrer to the FAC on January 5,

2012. On January 10, defendants’ attorney (Hawxhurst) sent Carlton’s attorney

(Foroozandeh) a meet and confer letter. The letter referenced the prior postponement of

discovery, including “any motions to compel,” until after the hearing on the demurrer,

which occurred on January 5. The letter discussed Carlton’s “deficient discovery

responses,” and requested dates in late February when Carlton would be available for a


                                            18
deposition. The letter was 10 pages long and detailed the alleged deficiencies in

Carlton’s discovery responses. Carlton’s attorney “ignored” the letter.4 Dr. Pepper’s

attorney mailed the motions to compel to Carlton’s attorney on March 19, 2012. The

motions to compel were filed at the court on the same day.

       The record does not include a written opposition or objection to the motions to

compel. At the hearing on the motion, Carlton’s attorney said he did not file an

opposition to the motions to compel. However, at the hearing, he verbally objected to the

motions on the ground of timeliness.

              2.     ANALYSIS

                     a)     Untimely Motions

       Carlton contends the motions to compel were untimely (filed after the 45-day

deadline) and moot (after the sustaining of the demurrer), and therefore, the trial court

could not grant the sanctions requested in the motions.

       Section 2030.300, subdivision (c), which concerns motions to compel

supplemental interrogatory responses, provides: “Unless notice of this motion is given

within 45 days of the service of the verified response, or any supplemental verified

response, or on or before any specific later date to which the propounding party and the

responding party have agreed in writing, the propounding party waives any right to

compel a further response to the interrogatories.”



       4There is nothing in the record reflecting a response, and in Carlton’s Appellant’s
Opening Brief for this court, he writes that he “ignored” the letter.


                                             19
       Section 2031.310, subdivision (c), which concerns motions to compel

supplemental responses to requests for production, provides: “Unless notice of this

motion is given within 45 days of the service of the verified response, or any

supplemental verified response, or on or before any specific later date to which the

demanding party and the responding party have agreed in writing, the demanding party

waives any right to compel a further response to the demand.”

       Assuming Carlton and Dr. Pepper’s postponement of discovery included motions

to compel, then discovery would have resumed on January 6 (after the January 5

demurrer hearing). Carlton’s responses to the interrogatories and production requests

were received in November, prior to the December agreement to postpone discovery.

Nevertheless, assuming the 45-day motion clock began on January 6 (after the demurrer

hearing), Dr. Pepper still missed the deadline to file its motions to compel. If January 6 is

day one, then day 45 would be in February; Dr. Pepper did not file its motions to compel

until March 19. Therefore, the motions were untimely because they exceeded the 45-day

deadline.

       Since the motions to compel were untimely, we now consider whether the

sanctions request was also time-barred. Arguably, a sanctions request is not subject to

the same 45-day deadline as motions to compel, since the plain language of the statutes

only mentions motions to compel (not requests for sanctions) in relation to the 45-day

deadline. (§ 2030.300, subd. (c) [motion to compel for interrogatories]; § 2031.310,

subd. (c) [motion to compel for request for production]; § 2023.040 [request for

sanctions]; see also Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare


                                             20
Consultants (2007) 148 Cal.App.4th 390, 411 [45-day limit applies only to motions to

compel, not requests for sanctions].)

       Assuming, without deciding, that the sanctions request was timely, because the

sanctions request was not subject to the same 45-day deadline, the issue becomes: Can

monetary sanctions be awarded when the amount correlates with the attorney’s fees and

filing fees for untimely motions to compel? In other words, attorney’s fees and filing

fees were granted for preparing and filing untimely motions, and we now consider

whether that award was reasonable.

       We review a trial court’s award of discovery sanctions for an abuse of discretion.

(Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 297.) A trial court

may order sanctions against a party who provides evasive discover answers, and those

sanctions may include “the reasonable expenses, including attorney’s fees, incurred by

anyone as a result of that conduct.” (§§ 2023.030, subd. (a) & 2023.010, subd. (f).)

       As set forth ante, the statutes impose strict 45-day deadlines for motions to

compel. (§§ 2030.300, subd. (c), 2031.310, subd. (c).) If the deadlines are missed, the

consequences are clear, the party “waives any right to compel a further response to the

interrogatories” (§ 2030.300, subd. (c)) and “waives any right to compel a further

response to the demand [for production].” (§ 2031.310, subd. (c).)

       It was not reasonable for Dr. Pepper to file late motions to compel when the

statutory scheme plainly reflects such motions could not be considered by the court. In

other words, there was no basis for filing the motions because the motions could not

accomplish anything. Therefore, Dr. Pepper’s expenses for the motions to compel were


                                            21
unreasonable. As a result, the trial court’s award of sanctions related to motions to

compel was unreasonable, because only reasonable expenses may be awarded, and the

expenses related to the motions were not reasonable since the motions could not

accomplish anything. (§ 2023.030, subd. (a).) Accordingly, we will reverse the portion

of the judgment imposing discovery sanctions.

       Dr. Pepper contends Carlton did not provide sufficient legal argument in his

Appellant’s Opening Brief, and therefore, this court may dismiss Carlton’s argument.

We conclude Carlton provided some legal argument, and therefore we choose not to

dismiss the issue. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852;

see also Cal. Rules of Court, rule 8.204(a)(1)(B)&(C).)

       Dr. Pepper also notes Carlton did not file a formal opposition to the request for

sanctions in the trial court. At the trial court hearing, Carlton objected on the basis of Dr.

Pepper’s motions being untimely. Since the timeliness issue was raised in the trial court,

we conclude it has not been forfeited. (See Dietz v. Meisenheimer & Herron (2009) 177

Cal.App.4th 771, 799-800 [an objection in the trial court can preserve an issue for

appeal].)

       Next, Dr. Pepper contends the trial court did not abuse its discretion by imposing

sanctions because Carlton’s interrogatory responses were evasive, Carlton failed to meet

and confer, and the amount of the sanctions was modest. Dr. Pepper’s argument is not

persuasive because discovery sanctions are not designed to punish; rather, they are

designed to fix the problem created by the evasive responses. (Parker v. Wolters Kluwer

U.S., Inc., supra, 149 Cal.App.4th at p. 301.) Dr. Pepper’s late motions to compel could


                                              22
not have fixed Carlton’s evasive responses, because the motions to compel were untimely

and therefore Dr. Pepper waived its right to seek further responses. Dr. Pepper missed its

opportunity to fix the problem. (§ 2030.300, subd. (c).) Therefore, discovery sanctions

were not warranted, because the problem could no longer be fixed.

                                      DISPOSITION

       The award of discovery sanctions is reversed. In all other respects, the judgment

is affirmed. The parties are to bear their own costs on appeal.

       CERTIFIED FOR PARTIAL PUBLICATION



                                                        MILLER
                                                                                           J.


We concur:


RAMIREZ
                              P. J.


KING
                                 J.




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