Hartman v. Hartman CA1/4

Filed 5/21/24 Hartman v. Hartman CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

ELENA HARTMAN, Plaintiff, v. MICHAEL HARTMAN, A168024 Defendant and Respondent; (San Mateo County Super. Ct. No. 19FAM02147) ANDREI MELNICHENKO, Appellant.

Andrei Melnichenko appeals an order imposing $12,866 in sanctions payable to Michael Hartman for failing to respond to a subpoena for documents in the underlying divorce proceedings involving Hartman and Melnichenko’s sister, Elena Hartman. His primary contention on appeal is that there is no evidence to support the court’s finding that he was properly served with the subpoena and that therefore, the court abused its discretion by imposing sanctions because his failure to comply was justified given the lack of service. He also asserts that the subpoena itself was invalid and that the amount of the sanctions is excessive. Because Michael Hartman has not appeared in these appellate proceedings, we decide the appeal on the opening brief and the record, bearing in mind that Melnichenko retains the affirmative burden to show error, which he has not done. (Smith v. Smith

(2012) 208 Cal.App.4th 1074, 1078; Cal. Rules of Court,1 rule 8.220(a)(2).) Accordingly, we affirm the sanctions order. BACKGROUND On September 8, 2022, Hartman filed a motion to compel Melnichenko’s compliance with a deposition subpoena for production of business records (subpoena) and for sanctions. A declaration attached to the motion states that the subpoena was served on Melnichenko twice, first at Melnichenko’s request by email on March 14, 2022, and the second time by personal service on July 10. On January 20, 2023, Melnichenko filed a declaration in opposition to the motion to compel asserting that he had not been served with the subpoena prior to December 26, 2022, when it was served along with the motion to compel. Following a hearing on January 31, 2023, the trial court granted the motion to compel and ordered Melnichenko to pay Hartman’s attorney fees and costs as sanctions based on Melnichenko’s willful failure to comply with the subpoena. A written order was entered and served on April 14, 2023, after which Melnichenko timely filed a notice of appeal. DISCUSSION The trial court ordered Melnichenko to pay $12,866.70 in sanctions pursuant to Code of Civil Procedure2 sections 2025.480, subdivision (j) and 2023.030, subdivision (a). Section 2025.480, subdivision (j), provides that a trial court shall impose monetary sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer