Timlick v. National Enterprise Systems CA1/3

Filed 12/28/23 Timlick v. National Enterprise Systems CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

LISA ARLENE TIMLICK, Plaintiff and Respondent, v. A165127 NATIONAL ENTERPRISE (Lake County SYSTEMS, INC., Super. Ct. No. CV-416920) Defendant and Appellant.

National Enterprise Systems, Inc. (NES) appeals from a trial court order awarding Lisa Arlene Timlick $20,950 in attorney fees — incurred defending an appeal arising out of a discovery dispute — as a “discovery sanction” pursuant to Code of Civil Procedure sections 2023.010 and 2023.030.1 We conclude NES did not receive adequate notice and opportunity to be heard before the sua sponte award of fees as a “discovery sanction.” We reverse.

1 Undesignated statutory references are to this code. The history of the parties’ litigation is set forth in our two prior opinions, which we incorporate here by reference: Timlick v. National Enterprise Systems, Inc. (2019) 35 Cal.App.5th 674 and Timlick v. National Enterprise Systems, Inc. (June 22, 2021, A160110) [nonpub. opn.] (Timlick II). 1

BACKGROUND Timlick filed a putative class action against NES — a third party debt collector — for violating the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.). She served NES with interrogatories, inspection demands, and requests for admission, and NES provided written responses. Thereafter, she moved to compel further responses and requested monetary sanctions against NES for misuse of the discovery process (discovery motion). Before the trial court ruled on the motion, NES moved for summary judgment. The court granted the summary judgment motion, and it denied the discovery motion without prejudice. Thereafter, the court entered judgment for NES. Timlick appealed; we reversed the grant of summary judgment and remanded. When the case returned to the trial court, Timlick revived the discovery motion and sought monetary sanctions. Over NES’s opposition, the court partially granted the motion and imposed sanctions on NES pursuant to sections 2030.300, subdivision (c), 2031.310, subdivision (c), and 2033.290, subdivision (c), which require a trial court to impose a monetary sanction against a party who unsuccessfully opposes a motion to compel further responses to written discovery unless the court finds the party acted with substantial justification or that other circumstances make the imposition of the sanction unjust. NES appealed, and we affirmed. We held the court properly allowed Timlick to renew her discovery motion and did not abuse its discretion in imposing sanctions. (Timlick II, supra, A160110.) The case returned to the trial court for the second time, whereupon Timlick moved for $26,580 in attorney fees. Her notice of motion identified