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The NEVERLAND 5 APPEAL DECISION Kassim Abdool, Ralph Chacon, Adrian McManus, Melanie Bagnall, Sandi Domz

Kassim ABDOOL, Ralph Chacon, Adrian McManus, Melanie Bagnall, Sandi Domz, Law Offices of Michael P. Ring & Assoc., and Law Offices of Barber & Gray Plaintiffs and Appellants,

v.

Michael J. JACKSON, James Van Norman, Tony Coleman, Marcus Johnson, Bill Bray, Bettye Bailey, and Andrew Merritt Defendants and Respondents.
1997 WL 33801664
Court of Appeal, Second District, Division 6, California.
Appellate Brief 1997 WL 33801664 (Cal.App. 2 Dist.) (Appellate Brief)
Court of Appeal, Second District, Division 6, California.

Kassim ABDOOL, Ralph Chacon, Adrian McManus, Melanie Bagnall, Sandi Domz, Law Offices of Michael P. Ring & Assoc., and Law Offices of Barber & Gray Plaintiffs and Appellants,
v.
Michael J. JACKSON, James Van Norman, Tony Coleman, Marcus Johnson, Bill Bray, Bettye Bailey, and Andrew Merritt Defendants and Respondents.
No. B104055.
April 7, 1997.
Santa Barbara Superior Court No. SM 89344
Consolidated with SBSC No. SM 91416
On Appeal from the Santa Barbara County Superior Court The Honorable Zel Canter, Judge Presiding

Respondents’ Brief

Katten Muchin & Zavi, Steve Cochran (Bar No. 105541), 1999 Avenue of the Stars, Suite 1400, Los Angeles, California 90067-6042, (310) 788-4400.

Sanger & Swysen, Robert M. Sanger (Bar No. 58214), Deborah J. Bishop (Bar No. 176201), Charles E. Tillage (Bar No.177983), 233 E. Carrillo St., Ste. C, Santa Barbara, CA 93101, (805) 962-4887, Attorneys for Respondents.

 

*i Table of Contents

Table of Contents … i

Table of Authorities … iii

Statement of the Case … 1

The Standard of Review on Appeal … 2

Appealability … 2

Statement of Facts … 3

  1. The Sanctions for Failure to Produce Documents … 3
  2. The Sanctions for the Deposition of Adrian McManus … 7
  3. The Court Reopened the McManus Deposition … 7
  4. The Morning Session … 9
  5. The Afternoon Session … 11
  6. The Hearing … 12

Argument … 13

III. The Sanctions Order Entered on May 24, 1996, for $2,000 is not Appealable … 13

  1. Appellants were Properly sanctioned $2,000 for Lying About Evidence and for the Failure to Produce Subpoenaed Documents … 15
  2. The Subpoenas were Properly Issued … 15
  3. Even if the Subpoenas Were Defective, Appellants Were Sanctioned for Lying to the Court and Counsel About the Existence of Documents … 17
  4. Sanctions for The McManus Deposition Were Just and Proper … 18
  5. The Waste of Time and Money Caused by Appellants’ Tactics in the Morning Session … 20
  6. The Impropriety of Appellants in the Afternoon Session … 21
  7. Appellants and/or Their Counsel Should Bear the Expense for Time lost, This Motion and Further Depositions of McManus … 21

*ii D. The Trial Court’s Award of $8,970.50 Sanctions is Amply Supported by the Record … 22

  1. Appellate Sanctions are Warranted on the Grounds That The Appeal is Totally and Completely Without Merit and is Prosecuted Solely for the Purpose of harassment and Delay is, Therefore, Frivolous … 24
  2. An Appeal is Frivolous When the Appeal Lacks Merit … 24
  3. An Appeal is Frivolous if Prosecuted For An Improper Notice … 24
  4. Sanctions Are Warranted Under the Facts of this Case … 25

Conclusion … 25

*iii Table of Authorities

Case Law

Alliance Bank v. Murray (1984) 161 Cal.App. 3d 1 [207 Cal.Rptr. 233] … 2, 23

Ballard v. Taylor (1993) 20 Cal.App.4th 1736 [ 25 Cal.Rptr. 384 … 3

Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256 [24 Cal.Rptr.2d 501] … 20

Hedley v. Rechti (1993) 12 Cal.App.4th 1553 [16 Cal.Rptr.2d 151] … 2, 23

In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal.Rptr. 508] … 23, 24

Rail-Transport Employees v. Union Pacific Motor Freight (1996) 46 Cal.App.4th 469 [54 Cal.Rptr. 713] … 3, 14

Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579 [272 Cal.Rptr. 541] … 17

Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal.App.3d 520 [94 Cal.Rptr. 857] … 2

Zimmerman v. Drexel, Burnham & Lambert, Inc. (1988) 205 Cal.App.3d 153 [252 Cal.Rptr. 115] … 23, 24

Statutes

California Code of Civil Procedure 904.1 … 7, 13, 14

California Code of Civil Procedure 907 … 24

California Code of Civil Procedure 1985.3(a)(1) … 15, 16

California Rule of Court 10(c) … 1

California Rule of Court 5.1(i)(1) … 1, 2

California Rule of Court 5.1 (i)(2) … 1, 2

California Rule of Court 5.1 (j) … 7

California Rule of Court 13 … 1, 2

California RuLe of Court 15 … 1, 2

California Rule of Court 26(a) … 24

*1 STATEMENT OF THE CASE
Appellants are the Plaintiffs and the Plaintiffs’ lawyers in the trial court below. Respondents are the Defendants and Respondent Michael Jackson is also a Cross-Complainant below.
This appeal is apparently taken from two orders imposing monetary sanctions on Appellants (Appellants’ Opening Brief, hereinafter A.O.B., ¶1) although. Appellants have not filed or presented the orders to this Court [FN1]:

FN1. Appellants have failed to comply with numerous California Rules of Court, including 10(c),

5.1(i)(1) and (2), 13 and 15. They have also made blatant misrepresentations to this Court. These matters are the subject of the Omnibus Motion for Dismissal of Appeal filed concurrently herewith.
1. An order of May 24, 1996, imposing sanctions in the amount of $2,000 against Appellants for lying about the existence of, and failing to produce documents pursuant to, a subpoena, compliance with which had been ordered on March 25, 1996;
2. An order of July 23, 1996, imposing sanctions in the amount of $8,970.50, plus additional court reporter fees and costs in an amount to be established, for “obstructionist” tactics during the court ordered re-opened deposition of Adrian McManus[FN2].

FN2. Thereafter, prior to trial and during trial, Appellants were sanctioned several additional times for lying to the court, perjury by each of the Appellants, collusion by their lawyers, destruction and spoliation of evidence, failure to make discovery and for violation of court orders.
There are three additional appeals presently pending, B105480, B106880, B108051 and one recently filed that has not been assigned a number as of this writing. In addition, the jury returned a verdict on March 16, 1997, for Respondents. We respecfully ask this court to take judicial notice of said matters.
A Notice of Appeal was filed on July 23, 1996, and a Notice to Proceed under California Rule of Court 5.1 was filed on August 2, 1996. (Appellants’ Appendix, hereinafter “AA,” 651 and 654)

*2 THE STANDARD OF REVIEW ON APPEAL

The standard of review of sanction orders is whether or not there has been an abuse of discretion. (Hedley v. Ruchti (1993) 12 Cal.App.4th 1553, 1601 [16 Cal.Rptr.2d 151].) The Appellant has the burden of showing that the lower court abused its discretion. ( Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 10 [207 Cal.Rptr. 233]; citing Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal.App.3d 520, 524 [94 Cal.Rptr. 857].) In reviewing discovery sanctions, the appellate court will reverse only when it is shown that the trial court’s decision was “ ‘arbitrary, capricious or whimsical…’ ” ( Hedley v. Ruchti, supra, at 1601; quoting Alliance Bank v. Murray, supra, at 10.)

APPEALABILITY

Appellants appeal from two separate sanctions orders. The first discovery sanctions order in the amount of $2,000.00 was issued from the bench on May 24, 1996. (Reporter’s Transcript, hereinafter “R.T.,”, 92.) This first order was based on Appellants’ lying about and failure to comply with the trial court’s orders compelling Appellants’ counsel to produce documents pursuant to the subpoenas duces tecum served on Appellants Barber and Gray and Ring. (AA, Vol. I, 186-195; Vol. I, 270, ¶ 2) The order was entered on May 24, 1996[FN3] and payment was stayed until July 12, 1996. (AA, Vol. III, 585-586.) This order is non *3 appealable under Code of Civil Procedure § 904.1(a)(12) since it is for less than $5,000. Rail-Transport Employees Assoc. v. Union Pacific Motor Freight, (1996) 46 Cal.App.4th 469 [54 Cal.Rptr. 713] (under § 904.1(a)(12) only discovery sanctions orders in excess of $5,000 are appealable); Ballard v. Taylor, (1993) 20 Cal.App.4th 1736 [25 Cal.Rptr. 384] (prior to amendment of § 904.1, all discovery sanctions were non-appealable).

FN3. Appellants have failed to comply with California Rules of Court 5.1, 13 and 15 and have not submitted a copy of this order. They have also omitted from the Reporter’s Transcript any reference to the actual findings and orders of the trial court. The context of the Reporter’s Transcript submitted makes it clear that the actual orders were made before the transcribed portion begins. (See, R.T. 83-94)
The second discovery sanctions order is in the amount of $8,970.50 which was issued from the bench on July 23, 1996. (R.T., 180-185.) That sanction order does come within the exception to the code. The appeal from the $2,000 sanction order should be dismissed and sanctions should be assessed against appellants for their frivolous appeal of that order.

STATEMENT OF FACTS

1.THE SANCTIONS FOR FAILURE TO PRODUCE DOCUMENTS.
On January 30, 1996, the Respondents in this case learned that the Star Magazine had published in its February 6, 1996 issue an article entitled “Michael Jackson’s Bizarre Marriage: What Really Went On Behind Closed Doors” based on an interview of the five Appellants in this case and featuring their pictures. (AA, 211.)
Respondents immediately brought the Star article to the attention of the Court on January 31, 1996, at a hearing on Respondents’ motion to compel deposition of Kassim Abdool and Timothy McManus. (AA, 211.) The Court indicated that discovery about the Star article and media contacts was a permissible area of discovery. (AA, 211.)
On February 7, 1996, the tabloid television magazine “Inside Edition” featured an interview of Sandi Domz covering the same *4 matters as the Star Article. (AA, 211-212.) Sandi Domz was interviewed at the Santa Barbara Courthouse and at her counsel’s office. (AA, 222.)
Respondents conducted discovery relating to the Star article and any other media contacts as soon as practicable. They utilized all available means of discovery out of an abundance of caution. However, Appellants stonewalled every effort to obtain discovery in this area. (AA, 212.)
On February 9, 1996, Respondent Michael Jackson propounded a Demand for Production of Documents on Melanie Bagnall, Ralph Chacon, Kassim Abdool, Adrian McManus and Sandi Domz asking for the production of certain publications. Respondent Jackson also propounded special interrogatories covering the same subject matter, on each individual Appellants. Appellants served their response to the Requests for Production of Documents on March 4, 1996, and their Responses to the Special Interrogatories on March 14, 1996. These responses contained only objections. In addition to boiler plate objections, Appellants objected on the ground that
“… it calls for the production, identification and/or disclosure of any documents after the date set for the discovery cut-off in this action.” (AA, 202-203,)
It was revealed during depositions that counsel for Appellants were directly involved in setting up the interview for the Star article and Inside Edition. (AA, 239.) Therefore, on February 15, 1996, Respondents served two subpoenas for the Production of Business Records on the Law Offices of Michael P. Ring & Associates and on the Law Offices of Barber & Gray, respectively. (AA, 186-195.) Said subpoenas ordered the two law offices to produce a *5 series of documents pertaining either to the Star article, the Inside Edition interview or any other media contact. The documents requested were to be produced on March 1, 1996, to the deposition officer, the U.S. Photocopy Service. (AA, 186, 191.)
On or about March 2, 1996, the day after that designated for the production of the subpoenaed records, the Law Offices of Michael P. Ring & Associates and the Law Offices of Barber & Gray mailed to the deposition officer, but not on Respondents, two pleadings entitled “Objections of Custodian of Records of Law Offices of Michael P. Ring & Associates” and “Objections of Custodian of Records of Law Offices of Barber & Gray”. (AA, 242-247) The envelopes containing the papers were postmarked March 2, 1996 and the papers were received by U.S. Photocopy Service on March 4, 1996. (AA, 244, 247). The two law offices objected to the subpoenas on the ground that they were defective for failure to check the boxes under item 1 and for failure to comply with the consumer notice requirements.
Meanwhile, Respondents attempted to elicit information about the Star Articld, the Inside Edition segment and any other contact with the media during the depositions of Kassim Abdool, Melanie Bagnall and Sandi Domz. (AA, 212.) Respondents encountered an extraordinary amount of resistance on the part of the deponents. (AA, 212.) The testimony of the Appellants was interrupted by countless conferences between Appellants’ counsel and Appellants. (AA, 212.) In addition, all of the Appellants deposed claimed they could not recall any specifics. (AA, 214-241.)
On March 13, 1996, Appellants filed a “brief” regarding the subpoenas duces tecum. (AA, 175-200.) Respondents filed their *6 opposition on March 25, 1996. (AA, 201-267.) On March 25, 1996, the Court heard argument and ordered that Appellants’ counsel comply with the subpoenas issued to them relating to transactions with the news and entertainment media and further ordered that all materials be hand delivered by March 29, 1996. (AA, 270.) The documents delivered pursuant to the order were obviously incomplete. (AA, 27-273.)
Appellants continued to deny that there were any other documents. Appellants faxed two letters claiming that all documents in their possession had been produced. (AA, 280-282.) On April 5, 1996, Respondents made a further ex parte application for compelling compliance with the subpoenas duces tecum, and sought $1,500 in sanctions. (AA, 268-276.) Appellant Ring even filed a declaration under penalty of perjury that all documents had been produced. (AA, 277-279.)
By May 17, 1996, Respondents had obtained concrete evidence that Appellants had lied about possessing additional documents. On that day, Respondents filed a supplemental declaration in support of the motion to compel compliance by Appellants’ counsel with the subpoenas duces tecum. (AA, 283-344.) The supplemental declaration disclosed evidence that Appellants’ counsel had withheld numerous documents concerning correspondence with members of the tabloid media. (AA, 283-286.) Included in these withheld documents was at least one sketch of Elvis Presley by Michael Jackson, which Appellants Adrian McManus had stolen from Mr. Jackson. (AA, 287.) The motion to compel included a request for $5,000 in sanctions for attorney’s fees on the motion to compel. (AA, 286.)
*7 On May 24, 1996, the Court heard Respondents’ motion to compel. (R.T., 83-92.)[FN4] The Court granted the motion and awarded $2,000 in sanctions, which were stayed until July 12, 1996. (R.T., 92.)
FN4. Again, however, Appellants omitted the portion of the transcript during which the trial court made its findings and rulings on Respondents’ motion. Since it was granted, the record before this Court can only leave the conclusion that the trial court made adverse findings, that is that Appellants lied and perjured themselves when denying that they had any additional documents.
Respondents have sought leave of this Court under California Rule of Court 5.1(j) for the preparation of additional transcripts which will bear this assumption out.

II. THE SANCTIONS FOR THE DEPOSITION OF ADRIAN MCMANUS.

A. THE COURT REOPENED THE MCMANUS DEPOSITION
At the May 24, 1996 hearing, the Court also re-opened discovery to permit Respondents to take the deposition of Adrian McManus. (R.T., 89.; AA 345-381.) Respondents’ motion to reopen pertained to two areas: (1) discovery of materials stolen from Respondents by Appellants; and (2) contacts with the tabloid media. These two areas were opened up because Respondents had caught Appellants lying about a particular sketch and a particular contact with one tabloid media broker. It was not the intention of the motion or the trial court to limit the questioning to the precise purloined sketch and one conversation which Respondents already knew about and which formed the basis for further inquiry.
The necessity to reopen McManus’ deposition became apparent during the deposition of tabloid media broker Gary Morgan. Mr. Morgan revealed that Ms. McManus provided him with an original (stolen) sketch of Elvis Presley, drawn by Mr. Jackson, which appeared in a tabloid magazine. (AA, 320) In addition, Mr. Morgan *8 testified that the February 6, 1996 Star tabloid magazine article contains quotes from McManus that were not obtained by him. (AA, 364) Peter Burt wrote the February 6, 1996 article and based upon Morgan’s testimony, spoke directly with McManus or completely made up certain quotes attributed to McManus in the article. (AA, 371) In any case, the need to question both Appellant McManus and Burt became evident.
Respondents filed a motion with the Court for permission to depose McManus and Burt. (AA, 345-387) No opposition was submitted by the Appellants. The Court granted the motion during the day-long session on May 24, 1996. (R.T., 89.)
Appellants’ counsel asked the Court to order that Respondents not be allowed to examine McManus about “everything under the sun.” The Court stated that the deposition would be limited and defense counsel agreed. (R.T., 89.) Although the Court did not specify the limitations of McManus’ further deposition, a review of the hearing transcript and Respondents’ moving papers indicates that the trial court meant to restrict examination to discovery previously thwarted by appellants’ lies and deception including documents not turned over and contacts with the tabloid media.
Pursuant to the Court’s order, Appellant McManus’ continued deposition occurred on Monday, June 24, 1996 at 10:00 am in Santa Barbara. Before that date Respondents learned about other tabloid media contacts by the Appellants. Appellant McManus (as well as Appellants Abdool, Bagnall and Chacon) had extensive conversations with Victor Gutierrez, a so-called journalist who intended to self-publish a book full of “gossip” about Michael Jackson. Mr. Gutierrez’s book, which was published in Spanish before the McManus *9 deposition, was replete with verbatim quotes attributed to the Appellants. Appellant McManus, herself, is quoted on the dust jacket of the book. (AA, 469)
Appellants’ counsel, Mr. Ring and Mr. Francis, obstructed the deposition and attempted to limit the questioning to two questions: (1) Did McManus have any contact with Peter Burt; and (2) How did McManus obtain the one sketch that was already discovered?

B. THE MORNING SESSION
Kelly Francis represented McManus during the morning session of her deposition on June 24, 1997. He began the morning session by claiming that the deposition was limited to two issues: (1) the Elvis Presley sketch, and (2) her contacts with Peter Burt. To no avail, Respondents attempted several times to meet and confer with Mr. Francis to resolve the dispute. (AA, 419.)
Appellant McManus refused upon instruction of counsel to answer approximately 78 questions during the morning session of her deposition. McManus testified that she had no contact with Peter Burt. (AA, 419-420.) Mr. Francis then effectively shut down the questioning, refusing to allow questions regarding her denial of contact with Peter Burt, her recollection of other quotes and of the existence of the Morgan-interview transcript, that her counsel claimed he destroyed. Several times, Mr. Francis stated that the Peter Burt issue was over, and if Respondents wanted to question Ms. McManus about the sketch, to go ahead. Tellingly, this is what happened when defense counsel attempted to question McManus about the stolen sketch:

“Q. BY MR. COCHRAN: Where is the sketch you took from the ranch?
*10 MR. FRANCIS: Are you referring to the sketch given to Mr. Morgan? Is that what you are referring to?
MR. COCHRAN: If there are others, I want to know about them, too.
MR. FRANCIS: I don’t know. Which one are you referring to when you say “the sketch”?
MR. COCHRAN: How many sketches do you have?
MR. FRANCIS: What was your question?
MR. SANGER: Mr. Francis, you are incredibly obstructionist here. You just told us that this was — you told us that this was limited to finding out about the sketch. Mr. Cochran just asked about the sketch. Would you like us to go back to Judge Canter and ask him to tell us what sketch we are talking about?
MR. FRANCIS: Do you know which sketch they’re talking about?
MR. COCHRAN: Sure she does, man. She was in court that day.
Q. You know what sketch we’re talking about, right?
MR. FRANCIS: The sketch purportedly of Elvis, purportedly drawn by Mr. Jackson? Yes or no?
Q. BY MR. COCHRAN: Do you know what sketch we’re talking about?
A. The sketch I found in the trash.
Q. Is that the only sketch there is?
A. That’s what I found in the trash.
Q. Do you have any other sketches?
MR. FRANCIS: Objection; exceeds the scope of permissible discovery as allowed by the Court. Instruct the witness not to answer.” (AA, 427.)

*11 Shortly before noon, Mr. Francis asked to break for lunch early. (AA, 437)

C. THE AFTERNOON SESSION
During the afternoon session, Appellant Ring appeared for the deposition. Mr. Francis did not return for the remainder of the deposition. Appellant Ring said at first that he was altering Mr. Francis’ position in the morning session, and that McManus could respond to some of the 78 questions she previously refused to answer. Mr. Ring stated that Respondents could ask McManus about statements she made in all of the articles that Gary Morgan had produced. Respondents then requested that Appellants pay for an expedited transcript of the morning session and to continue the deposition to that Wednesday, so that all of those questions could be asked again. Appellant Ring refused.
Despite the purported offer to cooperate, Appellant Ring instructed Appellant McManus to refuse to answer at least sixteen more questions including questions about Appellants’ contacts with Victor Gutierrez of which Respondents had just learned.[FN5] Then, after being prompted by Appellant Ring, McManus ended the deposition early (before 4:00 pm) stating that “Enough’s enough. Time to go home,” and “I’m tired and I’m hungry. I want to go home. My back hurts, too.” (AA, 469.)[FN6]

FN5. Most of these questions included the circumstances surrounding her interviews with Gary Morgan; whether she thought about the confidentiality agreement when she submitted to interviews by Gary Morgan; some questions regarding her contacts and other Appellants’ contacts with Victor Gutierrez and, any discussions with her lawyer/agent about selling her story. (See: e.g., AA, 449-50, 455-457, 463, 465.)
FN6. For approximately twenty minutes after the questioning of McManus, counsel attempted to meet and confer regarding the issues raised during this deposition and with regard to continuing McManus’ deposition. Mr. Ring stated that he stood by Mr. Francis’ position in the morning session, would not agree to pay for the cost of an expedited transcript from the morning session and would not agree to continue McManus’ deposition to dates that were acceptable to Respondents. Thus, Mr. Ring and his client, McManus shut down her deposition without resolving the issues.

*12 D. THE HEARING
On July 12, 1996, the parties appeared in court to discuss the conduct of the McManus deposition, among other issues. The Court viewed a videotape of two brief portions of the deposition (quoted above).[FN7] After viewing the first segment, the Court exclaimed in exasperation, “I don’t need to hear any more. Done.” (R.T., 99.) The Court viewed the second clip, and stated, “I’ve heard enough. This is — I’m going to tell you now this is clearly obstructionist. I don’t even want to hear argument. I’m going to impose sanctions on you. (R.T., 99-100.)
FN7. The videotape is the subject of respondents’ concurrent motion to augment the record pursuant to California Rule of Court 12(a) and case law.
The Court directed respondents to submit a cost bill to support an award of sanctions, including attorneys’ fees. (R.T., 100.) The cost bill was filed July 19, 1996, seeking $11,482 in fees and costs related to the McManus deposition. (AA, Vol. III, 589-594.)
On July 23, 1996, the Court held a hearing on the amount of sanctions. Appellants’ counsel, Michael Ring, apologized to the Court for the conduct of his associate, Mr. Francis, at the McManus deposition, stating “He’s got a lot to learn.” (R.T., 145-146, 152-153.) Even though Appellant Ring did not accept responsibility or and blamed Mr. Francis, the trial court accepted Mr. Ring’s *13 statement as an apology. (R.T., 158-159.) At the conclusion of the argument, the Court stated:
“I believe, from what I saw on the video and from what I’ve heard in argument, and what little I have read of the exhibits that have been set before me, that it was — Mr. Kelly Francis is just going to have to learn. If it’s at your expense, it’s at your expense. This isn’t the first time that he’s blocked the proceedings and caused a great deal of commotion.” (R.T., 180.)
The Court addressed each element of fees and costs in the cost bill, refused to award some of the requested costs, and ultimately awarded sanction in the amount of $8,970.50. (R.T., 180-185.)

ARGUMENT

III. THE SANCTIONS ORDER ENTERED ON MAY 24, 1996 FOR $2,000 IS NOT APPEALABLE.
Appellants were ordered to pay $2,000 in sanctions by the Honorable Zel Canter on May 24, 1996. (R.T., 83-92) They seek to appeal this as well as the $8,970.50 sanctions order which was entered on July 23, 1996 for different obstructionist conduct.
Pursuant to California Code of Civil Procedure section 904.1(a)(12):
“An appeal may be taken from a Superior Court in the following case: … (12) from an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).”
In Rail-Transport Employees Association v. Union Pacific Motor Freight[FN8] (1996)46 Cal.App.4th 469, 473 [54 Cal.Rptr.2d 713, 716] the court analyzed the legislative history of California Code of Civil Procedure section 904.1 and concluded that appeals from *14 sanctions orders for less than five thousand dollars may only be taken upon the conclusion of the case as part of an appeal on the merits of the action or by way of extraordinary writ. The Court stated: “That is, the vast majority of discovery sanctions will not reach the $5,000 threshold and therefore are unappealable. However, those cases involving misuse of the discovery process which result in sanctions exceeding $5,000 are reviewable by direct appeal.” Id. at 475. Thus, only sanctions orders for $5,000 or more may be taken by way of direct appeal.
FN8. Appellants cite this case and misrepresent to this Court the proposition for which it stands. (A.O.B., Page 2).
The appeal from the sanctions order of $2,000 entered by the Honorable Zel Canter on May 24, 1996, must be dismissed as frivolous pursuant to California Code of Civil Procedure section 904.1(a)(12)and well settled case law.

IV. APPELLANTS WERE PROPERLY SANCTIONED $2,000 FOR LYING ABOUT EVIDENCE AND FOR THE FAILURE TO PRODUCE SUBPOENAED DOCUMENTS.

A. THE SUBPOENAS WERE PROPERLY ISSUED
In their subpoenas, Respondents sought the production of records relating to an article in the tabloid magazine The Star, to an interview by the tabloid television magazine Inside Edition and possibly contacts with other publications and media for the sale of information regarding Michael Jackson. These subpoenas were served because Respondents discovered on January 31, 1996 and thereafter that the Appellants sold information about Michael J. Jackson to at least The Star and Inside Edition and possibly other media organizations. The subpoenas sought records specifically from the Law Offices of Michael P. Ring & Associates and Barber & Gray because some of the Appellants revealed during their depositions that counsel for Appellants were directly involved in setting up *15 the interviews for the Star article and Inside Edition in an attempt to raise funds for the litigation. (AA, 473.)
Special procedures are required for the production of personal records of a consumer to protect the consumer’s right to privacy by giving him or her the opportunity to move to quash the subpoena before the production of the records. (Code of Civil Procedure section 1985.3(e)). However, before the special procedures apply to a particular case, the records sought must be “personal records” within the meaning of Code of Civil Procedure Section 1983.5(a)(1). The records requested here were not personal records within that definition.
Personal records means records pertaining to a “consumer” maintained by an individual listed in 1985.3(a)(1). Attorneys are listed, however, in the present case, the Law Offices of Michael P. Ring & Associates and of Barber & Gray were not acting as attorneys for the Appellants but as a party to the transaction and/or business agent for the Appellants. The lawyers were parties to the transaction and received money to cover expenses related to this litigation that they would otherwise have had to cover themselves.
It also appears that Appellants’ counsel were acting as business agent for the Appellants to obtain on their behalf the lucrative interviews we know of and possibly others. Business agents and parties to a transaction are not covered by Code of Civil Procedure Section 1985.3(a)(1). Records belonging to a lawyer who makes a media contract to his own benefit are not attorney/client and therefore not personal to the erstwhile clients. Since the records sought were not attorney/client *16 records, no notice to consumer was necessary and the subpoenas were not defective.
In addition, the Consumer Notice would have required an idle act since the attorneys were presently representing these clients in the very action in which the subpoenas were issued. In fact, the need for the subpoenas at all was occasioned by the bad faith failure to make discovery by Appellants and their counsel at that time.
Further, in the event that the trial court found that a notice to consumer was necessary in this case, Respondents requested that the court exercise its discretion under Code of Civil Procedure Section 1985.3(h) and either waive the notice requirement altogether or shorten the time for reservice of the deposition subpoenas.
“Upon good cause shown and provided that the rights of witnesses and consumers are preserved, a subpoenaing party shall be entitled to obtain an order shortening time for service of subpoena duces tecum or waiving the requirements of subdivision (b) where due diligence by the subpoenaing party has been shown.”

B. EVEN IF THE SUBPOENA WERE DEFECTIVE, APPELLANTS WERE SANCTIONED FOR LYING TO THE COURT AND COUNSEL ABOUT THE EXISTENCE OF THE DOCUMENTS
The Court ultimately did order production of the documents pursuant to the subpoenas, as it was permitted to do by law and under its discretion. Appellants were properly sanctioned for failing to comply with that order. See, Ruvalcaba v. Government Employees Ins. Co., (1990) 222 Cal.App.3d 1579, 1583 [272 Cal.Rptr. 541] (court has authority to impose monetary sanctions if party *17 disobeys a court order to respond to a request for production of documents).
Even if the trial court erred in ruling that Appellants Ring, Barber and Francis were obligated to comply with the subpoenas due to the lack of a consumer notice, it is no defense to the $2,000 sanctions imposed. Appellants have no right to lie and commit perjury in resistance to a direct court order whether or not that court order is technically correct.
Here, the $2,000 sanctions were imposed after Appellants maintained through correspondence, including letters containing “Rambo” type language, and a declaration under penalty of perjury that they had provided Respondents with copies of all documents required by the subpoena (Respondents’ Appendix, passim; AA, 277-282)[FN9]. Appellants now cite the same self-serving perjurious documents in their Opening Brief to mislead this Court. Appellants fail to apprize this Court of the fact that the trial court found those very statements to be false and perjurious and fail to include or cite to the record wherein the court made such findings. Appellants also continue to make those same self-serving assertions in their brief despite the fact that it was well known by the time of the filing of the brief that they had been caught at withholding the Michael Jackson sketches and notes and the nineteen page single-spaced transcripts by the media broker and handwritten notes by Appellants thereon.

FN9. A Respondents’ Appendix was necessary because Appellants intentionally omitted key Exhibits from Respondents’ moving papers in Appellants’ Appendix.

V. SANCTIONS FOR THE MCMANUS’S DEPOSITION WERE JUST AND PROPER.
*18 Respondents requested that McManus’ deposition be reopened because she had talked of people from the tabloid press. She had made reckless statements about Michael Jackson’s personal life and about the Neverland Valley Ranch, according to the press. She either did or did not have a copy of a transcript of what she told one tabloid media broker (Gary Morgan). She either did or did not have items which she took from the Ranch. Respondents were allowed to find out about all of it. That is what the Court ordered.
However, at the re-opened deposition of Ms. McManus, her counsel, Mr. Francis, would not even allow Respondents to ask McManus about her denial of contacts with Peter Burt. Mr. Francis simply cut off the questioning after McManus denied speaking with Burt.[FN10] Likewise, Appellant Ring arbitrarily limited examination on probative matters. However, Appellant Ring and Appellant McManus simply shut down the deposition. This total refusal to proceed is what caused Respondents to ask the court for an order compelling her to continue.

FN10. McManus’ denial created a discrepancy between McManus’ testimony and Mr. Morgan’s, and made her recollection of the other quotes, and the transcript (which Appellants’ counsel threw away) all relevant. Mr. Burt’s attorney did not corroborate McManus’ denial of contact with Mr. Burt. Instead, he invoked the shield law and attempted to prevent Respondents’ from taking Mr. Burt’s deposition. (AA, 476-492.)
At the May 24, 1996 hearing, the Court ruled that it was necessary to continue the deposition of McManus because statements she made to the media were relevant, at the very least to show Appellants’ bias, prejudice and motives to bring this lawsuit, per Evidence Code § 780. (R.T., 1-94) Respondents also wished to depose McManus to discover any violations of the protective order. *19 The Court did not restrict the deposition to two basic areas, i.e., whether McManus had contact with Burt, and whether she stole the sketch of Elvis Presley. According to the Appellants’ interpretation of the Court’s order, the Respondents would have to seek relief from the Court to question McManus about every media contact discovered between the hearing of the application and McManus’ deposition. This is not what the Court intended.
The Court intended this deposition to cover all of McManus’ relevant media contacts. These contacts include her conversations with Mr. Morgan and Mr. Burt; others of whom Respondents have recently learned; and any others whom Respondents do not know about yet. The Court indicated that it was concerned about the effect these media contacts will have on Respondents’ ability to have a fair trial, i.e., the effect on the jury pool. The Court said repeatedly that the Appellants’ media contacts were relevant. Thus, Respondents were entitled to follow up on these contacts through discovery in order to have a fair trial.
Appellants misquote the law. Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256 [24 Cal.Rptr. 501] does stand for the proposition that “discovery sanctions under the discovery statute are reasonable if they include costs incurred in preparing a motion and attending the hearing, but that further sanctions are unreasonable.”. (A.O.B. 18) In fact, the court in Ghanooni holds that an amount levied as a pure punitive measure is improper but that (under Code of Civil Procedure 2023) “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by *20 anyone as a result of that conduct.” (Emphasis added.) That is all the trial court did here. The reasonable expenses included attorneys fees and wasted time at multiple deposition sessions which would have concluded long ago had the Appellants and their counsel just told the truth.

A. The Waste of Time and Money Caused by Appellants’ Tactics in the Morning Session
Respondents arranged for the court reporter, a videographer, and at least one of the Respondents traveled from Los Angeles to attend this deposition. Mr. Cochran traveled from Los Angeles to take this deposition.
Mr. Francis’ tactic of unilaterally limiting the scope of the deposition, and instructing his client not to answer 78 questions, resulted in an enormous waste of time and money and violates the letter and spirit of the Discovery Act.

B. The Impropriety of Appellants’ Position During the Afternoon Session
Appellant Ring started the afternoon session by stating that Appellant could answer some of the questions from the morning session, but could not identify specific questions. Since Mr. Francis was not present in the afternoon, he could not assist with this endeavor. Nor would Mr. Ring agree to pay for an expedited transcript of the morning session so that the questions McManus asked in the morning could be asked again. Instead, he arbitrarily limited examination, then ended the deposition early, before 4:00 pm.

*21 C. Appellants’ And/or Their Counsel Should Bear the Expense for Time Lost, this Motion and Further Deposition Sessions of Ms. McManus
Appellants and their counsel were properly held to pay the price for their obstructionist tactics. Appellants and their counsel will properly be held to bear the cost of the court reporter, the videographer, the original transcript for the wasted day of deposition on May 24, 1996, as well as for all additional sessions of Appellant McManus’ deposition now required as a result of her improper refusal to answer nearly one hundred questions. (R.T., 134, 194) Appellants also were properly held to bear a portion of Respondents’ costs of coming to seek relief. Respondents gave notice during the deposition that such sanctions would be sought. (AA, 482.)
The Court carefully considered the costs to Respondents as a result of the obstructionist tactics and awarded an appropriate amount of sanctions. Appellants cannot be heard to complain — in direct contradiction to the record — that the sanctions were punitive. On the contrary, each and every element of the sanctions award was reviewed and considered by the court: $428.50 for the videographer (R.T., 180-181, AA 590); $1,570.50 for the court reporter’s expedited transcript (R.T., 181, AA 590); $3,282.50 for attorney’s fees attending the deposition (R.T., 181-182, AA 590); $2,340 for reviewing the deposition (R.T., 183-184, AA 590); $1,000 for attending the hearing (R.T., 184, AA 590); $140 service fee (R.T., 185, AA 591); $14 filing fee (R.T., 185, AA 590); $195 for preparing cost bill (R.T., 185, AA 591). On several of these *22 elements e.g. reviewing deposition and preparing the cost bill, the Court taxed costs and refused to award the requested amounts.
Appellants were sanctioned for the direct costs of their obstructionist behavior. The Court was well within its discretion to award such costs as sanctions.

D. The Trial Court’s Award of the $8,790.50 Sanctions Is Amply Supported by the Record
Appellants argue that the trial court’s sanction order was a penalty for their “obstructionist” conduct and acts as a “windfall” for Respondents. (App. Brf., p. 19.) The sanctions were for “obstructionist” behavior, which is just what sanctions are designed to deter. However, the amount was based solely on the cost to Respondent of having to deal with that behavior. (RT, 95-192.) There was no “windfall,” in fact, to the contrary, Appellants’ behavior cost Respondents considerably more that they were awarded. (AA, 589-594.)
Trial court discovery sanctions will be upheld on appeal when the facts support the ruling. ( Zimmerman v. Drexel, Burnham & Lambert, Inc. (1988) 205 Cal.App.3d 153, 159 [252 Cal.Rptr. 115].) And the discovery sanction orders will only be disturbed on appeal when they are arrived at from “arbitrary, capricious, and whimsical action.” ( Hedley v. Ruchti, supra, at 1601 [16 Cal.Rptr.2d 151]; quoting Alliance Bank v. Murray, supra, at 10 [207 Cal.Rptr. 233]) Here, Judge Canter’s order imposing sanctions was arrived at after a careful review of the discovery abuses, is amply supported by the record, and was correct under any standard of review.

*23 IV. APPELLATE SANCTIONS ARE WARRANTED ON THE GROUNDS THAT THE APPEAL IS TOTALLY AND COMPLETELY WITHOUT MERIT AND IS PROSECUTED SOLELY FOR THE PURPOSE OF HARASSMENT AND DELAY AND IS, THEREFORE, FRIVOLOUS.

A. An Appeal Is Frivolous When The Appeal Lacks Merit
An appeal lacks merit when the appeal is viewed by any reasonable attorney as totally and completely lacking merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, [183 Cal.Rptr. 508].) Appellants’ appeal from the $2,000.00 and $8,970.50 sanction orders is totally and completely without merit. The entire appeal is prepared in a haphazard fashion, the Rules have not been followed, there is deliberate deception on the part of Appellants on this Court, and the sanctions were more than deserved in the first place.

B. An Appeal Is Frivolous If Prosecuted For An Improper Motive
An improper motive is found when the Appellants are seeking to harass the Respondents or delay the effect of an adverse judgment. ( In re Marriage of Flaherty, supra, at 650.) Appellants’ motive is to delay the day of reckoning.

C. Sanctions Are Warranted Under the Facts of This Case
Pursuant to California Code of Civil Procedure § 907 and California Rule of Court 26(a), the appellate court can and should order sanctions against the Appellants for filing such a blatantly frivolous appeal. Appellate courts have found it quite appropriate to impose appellate sanctions where counsel is frivolous in *24 appealing trial court sanctions. (Zimmerman v. Drexel, Burnharm & Lambert, Inc. (1988) 205 Cal.App.3d 153, [252 Cal.Rptr. 115].)
Kassim ABDOOL, Ralph Chacon, Adrian McManus, Melanie Bagnall, Sandi Domz, Law Offices of Michael P. Ring & Assoc., and Law Offices of Barber & Gray Plaintiffs and Appellants, v. Michael J. JACKSON, James Van Norman, Tony Coleman, Marcus Johnson, Bill Bray, Bettye Bailey, and Andrew Merritt Defendants and Respondents.
1997 WL 33801664 (Cal.App. 2 Dist.) (Appellate Brief)

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