Filed 9/30/11 In re J.G.

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 In re J.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.G., Defendant and Respondent; FACEBOOK INC., Objector and Appellant. A128898 A129157 (Alameda County Super. Ct. No. SJ070076144

This is a consolidated appeal from a juvenile court order dated April 22, 2010, that imposed on appellant Facebook, Inc. (Facebook), a nonparty to these juvenile criminal proceedings, a monetary sanction in the amount of $100,000 for failing to comply with certain court orders relating to production of Facebook records relevant to the underlying matter.1 For reasons set forth below, we reverse the order. FACTUAL AND PROCEDURAL BACKGROUND On January 8, 2010, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging that defendant J.G. (minor) committed three
1

Facebook also appeals the related order, dated June 17, 2010, wherein the juvenile court denied its motion to vacate the April 22, 2010 sanction order. 1

felony counts of forcible sexual penetration (Pen. Code, 289, subd. (a)(1)), and one felony count of false imprisonment (Pen. Code, 236).2 During the course of these juvenile proceedings, minor served at least three subpoenas on Facebook seeking information related to the victims Facebook user account, including electronic messages sent to and from the account and other data. The first of these subpoenas, drafted on the mandatory judicial council form for juvenile and criminal subpoenas entitled Order to Attend Court or Provide Documents: Subpoena/Subpoena Duces Tecum, was issued on March 3, 2010. This subpoena, which demanded production of the requested documents within five business days or, in the alternative, Facebooks appearance at a court hearing set for March 12, 2010, did not bear a court seal or judicial signature, and was signed only by minors attorney, Laura Robinson. It was served by email in accordance with the standard procedures for service of legal documents set forth on Facebooks corporate website, and received the same day by Facebook law enforcement analyst Parvez Jamshed. In boldface type on page one, the subpoenas recipient was given the following warning: You must attend court or provide to the court the documents listed below. Page one further stated: If you do not, the judge can fine you, send you to jail, or issue a warrant for your arrest. On March 17, 2010, Jamshed sent an email message to minors counsel attaching written objections to the subpoena. Among the objections were Facebooks contentions that insufficient information was provided to enable it to locate the victims user account and that a federal law, the Stored Communications Act (tit. 18, U.S.C., 2701 et seq.) (SCA), prohibited it from disclosing the requested information. Later the same day, Craig Clark, Facebooks in-house litigation counsel, spoke by telephone with Walter Stannard, the private investigator for minor who had served the subpoena, and later with minors counsel, Laura Robinson, regarding its objections to the subpoena. During these communications, Clark was informed that the underlying juvenile matter was criminal rather than civil in nature, and that Facebooks appearance was required at a court
2

Unless otherwise stated herein, all statutory citations are to the Welfare and Institutions Code. 2

hearing scheduled for the next day, March 18, 2010. In addition, Clark instructed minors representatives to direct all further communications regarding the case to Facebooks outside litigation counsel, Tom Gray. Clark later followed up with an email to Robinson providing further information regarding Facebooks objections, as well as documenting certain details of their phone conversation, including his instruction to direct further communications to Tom Gray, who was copied therein. Gray, in turn, corresponded with both Robinson and Stannard the next day, March 18, 2010, regarding the subpoena.3 However, no Facebook representative appeared at the scheduled court hearing, during which, among other things, defense counsel requested an order requiring Facebook to appear in court on a new date, April 5, 2010. On March 29, 2010 and April 7, 2010, Stannard served two additional subpoenas on Facebook in accordance with the corporations standard procedures requesting production of substantially the same information identified in the first subpoena. As before, the subpoenas were on the mandatory judicial council form entitled Order to Attend Court or Provide Documents: Subpoena/Subpoena Duces Tecum, and commanded the recipient to Attend Court or Provide to the Court the Documents Listed. The subpoenas also warned on page one that You must attend court or provide to the court the documents listed below, and [i]f you do not, the judge can fine you, send you to jail, or issue a warrant for your arrest. However, unlike the first subpoena, the second and third subpoenas were issued and signed by a court officer: juvenile court commissioner Mark Kliszewski.

In particular, Gray advised Robinson that Facebook could disclose the requested information without violating the SCA if the victim executed a signed written release consenting to the disclosure. Gray and Stannard also discussed whether Facebook could confirm that the victims user account had been terminated. After Gray conveyed to Stannard that he had confirmed with Facebook representatives that this could not be accomplished without further identifying information (including the victims registration email address and her Facebook user ID number or vanity name), Stannard responded by email: Thanks Tom! Obviously, we have homework to do. Take care, Walt. 3

The March 29, 2010 subpoena, which was received by Facebook employee Jamshed, directed the company to produce the requested documents within five business days or appear for hearing on April 5, 2010. Similarly, the April 7, 2010 subpoena, also received by Jamshed, directed the company to produce the requested documents or appear for hearing on April 13, 2010.4 Two days later, on April 9, 2010, Facebook objected in writing to minors counsel to disclosure of the information identified in the second and third subpoenas on many of the same grounds contained in its objections to the first subpoena. Facebook did not, however, file these objections with the court or appear for the April 5 hearing identified in the second subpoena. On April 12, 2010, the day before the hearing date identified in the third subpoena, minors counsel contacted Jamshed to request a consent form that could be executed by the victim to authorize Facebook to release the requested information. Jamshed promptly emailed minors counsel Facebooks template consent letter. Robinson thereafter acknowledged receiving the letter and advised Jamshed: You dont need to go to court tomorrow. The next day, April 13, 2010, Facebook did not appear for or submit any documents in anticipation of the scheduled court hearing. Later that day, Stannard sent Jamshed an email attaching a signed copy of the consent letter. Contrary to Jamsheds instruction, the letter was signed by a representative of the district attorneys office rather than by the victim. Stannards email informed Facebook that its handling of the subpoenas had been discussed in court earlier that day, and that another hearing in the matter was scheduled for April 20, 2010. In addition, the email noted that, should minor be found guilty in the underlying juvenile criminal proceedings, he could be subject to imprisonment. A few days later, on April 16, 2010, Stannard sent the signed consent

It appears another subpoena, identical in all material regards to the April 7, 2010 subpoena, may have been served April 5, 2010. This subpoena, which Facebook denies receiving, identified the same hearing date identified in the April 7, 2010 subpoena (to wit, April 13, 2010). 4

letter to Thomas Gray, Facebooks outside counsel, and reminded him that Facebooks appearance was required in court on April 20, 2010. On April 19, 2010, one of Grays colleagues, attorney Julio Avalos, arranged for a paralegal to contact the court regarding the next days hearing. The courts clerk confirmed to the paralegal that the hearing was in fact scheduled to occur. A short time later, however, minors counsel advised Avalos that the hearing had been cancelled, prompting the paralegal to again contact the court clerk, who confirmed the hearing would in fact occur and that a Facebook representative was expected to attend. Facebook outside counsel Avalos thereafter complied with the court clerks directive to appear on behalf of Facebook for the April 20, 2010 hearing, during which Commissioner Kliszewski advised that the court was considering sanctioning Facebook for failing to comply with court orders related to the subpoenas. The juvenile court commissioner thereafter gave Avalos the chance to respond. Among other things, Facebooks counsel explained to the court the SCAs restrictions on disclosure of the information sought pursuant to the subpoenas. The court also heard testimony from minors private investigator, Walter Stannard, regarding his efforts to procure the subpoenaed documents from Facebook, including conversations he had with Facebook legal representatives regarding its need for further identifying information and the SCAs prohibition on disclosure absent the victims consent. On cross-examination, Stannard admitted his failures to abide by Facebooks instruction that he communicate only with outside counsel Thomas Gray and not with Facebook employees like Jamshed. Following the April 20, 2010 hearing, the juvenile court imposed a sanction on Facebook in the amount of $100,000, payable to the Alameda County Superior Court, for failure to respond to the Court after being served with a Subpoena Duces Tecum. Earlier at the hearing, when considering the sanction amount, the court noted that he saw in the [newspaper] two weeks ago that your C.E.O. made three billion dollars in 19 excuse me, 2009, three billion dollars . . . . Two days later, on April 22, 2010, minors counsel provided Facebook with a signed waiver by the victim consenting to disclosure 5

of the requested information. The same day, Facebook produced the information and the juvenile court immediately released minor on home supervision.5 On April 29, 2010, Facebook filed a motion to vacate the sanction order, raising several arguments, including those that are the subject of this appeal. On June 17, 2010, the juvenile court issued an 11-page opinion and order denying Facebooks motion. In doing so, the court found that Facebook disregarded and ignored three properly executed Orders of this court and failed to produce documents until sanctions were imposed. As a result of Facebooks conduct, a minor remained in custody and was deprived of his liberty for a substantial period of time. The court further noted that Facebooks attorney had been free to file an objection, a motion to quash, to provide no documents but appear at the hearing to articulate his objections, or make any number of other responses to the court. He was not free to do nothing. It is certainly reasonable to expect corporate counsel to understand that court orders cannot be ignored. Describing Facebooks attitude toward the juvenile court as cavalier, the court added: This was not a civil disagreement, but a criminal/juvenile matter in which a childs liberty was at stake. This consolidated appeal of both the sanction order and the subsequent order denying the motion to vacate followed. DISCUSSION On appeal, Facebook contends the juvenile court commissioner erred by imposing a sanction against the company in the amount of $100,000 pursuant to California Rules of Court, rule 2.30 because: (1) Facebook did not receive adequate notice or a meaningful opportunity to be heard prior to imposition of the sanction; (2) the commissioner lacked inherent authority to impose the sanction and the sanction was not statutorily authorized; (3) Facebooks conduct in responding to the subpoenas was reasonable, substantially

The juvenile court ultimately declined to make any findings with respect to the charged offenses, but nonetheless found minor committed a sexual battery in violation of Penal Code section 243.4. The legality of the juvenile courts finding is the subject of a separate appeal, case number A129165, currently pending before this court. 6

justified and in good faith; and (4) Facebook did not consent to the commissioner acting as judge pro tempore over Facebook during the sanction proceedings. The imposition of sanctions, monetary or otherwise, is within the discretion of the trial court. That discretion must be exercised in a reasonable manner with one of the statutorily authorized purposes in mind and must be guided by existing legal standards as adapted to the current circumstances. [] Inherent in our review of the exercise of discretion in imposing monetary sanctions is a consideration of whether the courts imposition of sanctions was a violation of due process. [Citation.] [Citation.] (Winikow v. Superior Court (2000) 82 Cal.App.4th 719, 726-727.) When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.] A trial courts exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.].) (In re Woodham (2001) 95 Cal.App.4th 438, 443.) In reviewing the facts which led the trial court to impose sanctions, we must accept the version thereof which supports the trial courts determination, and must indulge in the inferences which favor its findings. [Citations.] (West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 698.) With these guiding principles in mind, we turn to Facebooks claims of error. I. Did Facebook have adequate notice and a meaningful opportunity to be heard with respect to the sanction order? Facebook first challenges the sanction order on due process grounds, claiming the company received no notice or meaningful opportunity to be heard before the juvenile court sanctioned it for noncompliance with orders to produce the documents sought under the subpoenas or to appear for hearing. As Facebook notes, the juvenile court commissioner opened the April 20, 2010 hearing, with the following statement. The

purpose of this hearing is to figure out whats going on with the subpoenas that were served on Facebook and react to how were going to deal with that. Its an order to show cause why sanctions should not be imposed. According to Facebook, before this statement was made, Facebook, a nonparty to the action, had no knowledge the court was considering imposing sanctions against it, or that an order to show cause had issued regarding its failure to comply with court orders relating to the subpoenas. The following legal principles are relevant to this procedural challenge. [T]he imposition of sanctions always requires procedural due process, regardless of the legal basis underlying the sanctions order. (Caldwell v. Samuels Jewelers (1990) 222 Cal.App.3d 970, 976 [due process protections must be afforded in every situation in which the state deprives an individual of property].) Due process in this context requires adequate notice and an opportunity to be heard prior to the imposition of sanctions. (Ibid.; see also Lesser v. Huntington Harbor Corp. (1985) 173 Cal.App.3d 922, 930 [Adequate notice is mandated not only by statute, but also by the due process clauses of both the federal . . . and state . . . Constitutions].) [The] adequacy of notice should be determined on a case-by-case basis to satisfy basic due process requirements. (Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70.) In particular, the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.] This rule applies even when no notice was given at all. (City of Pasadena v. Superior Court [(1931)] 212 Cal. 309, 315 [298 P. 968]; Reynolds v. Harris [(1860)] 14 Cal. 667, 677; Overton v. White [(1937)] 18 Cal.App.2d 567, 576 [64 P.2d 758, 65 P.2d 99].) Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective. (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930. See also Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288-1289 [if the party appears at the appropriate hearing and opposes the motion on the meritsbut without making any

request for a continuance or demonstrating prejudice from the defective notice, the issue is waived].) Finally, just as with the issue of notice and opportunity to be heard, due process requires that any order giving rise to the imposition of sanctions state with particularity the basis for finding a violation of the rule. (Caldwell v. Samuels Jewelers, supra, 222 Cal.App.3d at p. 978.) The requirement that the courts order specify the circumstances in justification serves yet another purpose: it enables us, as the reviewing court, to determine whether the court abused its discretion in making its award. (Ibid.) In this case, it is undisputed legal counsel Julio Avalos appeared on behalf of Facebook at the April 20, 2010 hearing, which concluded with the courts decision to impose the $100,000 sanction. Despite being informed at the outset of this hearing that its purpose was to consider imposition of sanctions, Facebooks counsel did not raise any objection to the proceedings, or request a continuance. Rather, counsel introduced himself to the court, twice took the opportunity afforded him to cross-examine defense witness, private investigator Walter Stannard, offered two exhibits into evidence during this questioning, and then declined the courts offer to present further evidence once Stannard left the stand. Following the presentation of evidence, Facebooks counsel then raised several arguments against imposition of sanctions, including that Facebook acted in good faith and in cooperation with defense counsel to attempt to resolve certain issues that restricted its ability to comply with the subpoenas, such as the SCA. In doing so, counsel acknowledged that Facebook was aware of the courts displeasure with its compliance efforts, and that its entirely possible that some things may have fallen through the crack. As this factual record reflects, even accepting Facebooks representation that it learned for the first time at the April 20, 2010 hearing that the juvenile court was considering sanctioning it for failing to appear or otherwise respond to the court with regard to the subpoenas, Facebook was given, and indeed fully availed itself of, the opportunity to defend against the courts proposed punishment. As such, despite any procedural deficiencies that may have occurred prior to the sanction hearing, we 9

nonetheless conclude the issues of fair notice and opportunity to be heard have been waived by Facebooks actual participation in that hearing. (See Caldwell v. Samuels Jewelers, supra, 222 Cal.App.3d at p. 977.) Moreover, the same facts lead us to conclude that reversal of the sanction order on due process grounds would be inappropriate on another ground: In order to obtain a reversal based upon such a procedural flaw, the appellant must demonstrate not only that the notice was defective, but that he or she was prejudiced. ([Citations.]; Code Civ. Proc., 475.) As explained in Lever v. Garoogian (1974) 41 Cal.App.3d 37, 40 [115 Cal.Rptr. 856], Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error. (Code Civ. Proc., 475.) (Reedy v. Bussell, supra, 148 Cal.App.4th at p. 1289.) Here, the record on appeal reveals that Facebook not only participated fully in the sanction hearing, it filed extensive papers after the hearing seeking to vacate the juvenile courts order. Facebook also participated in a subsequent hearing during which its counsel appeared and availed himself of a full opportunity to argue grounds for vacating the order. In ultimately denying Facebooks motion, the juvenile court issued an 11-page written opinion and order, setting forth detailed factual findings in support of its order, as well as addressing each of the legal grounds raised by Facebook to challenge it. Under these circumstances, we conclude that, even aside from waiving its right to raise a due process challenge, Facebook sustained no prejudice from any irregularity in the procedures followed by the juvenile court in reaching the sanction order. Accordingly, we turn to Facebooks next argument. II. Did Facebook consent to the commissioner acting as judge pro tempore? In a separate procedural challenge to the sanction order, Facebook contends it did not consent to the commissioner acting as judge pro tempore for purposes of the sanction proceedings. In doing so, Facebook points to California Rules of Court, rule 2.816 (rule 2.816), which requires that parties receive notice that a temporary judge has been appointed to hear a matter and have the opportunity to either stipulate to the temporary judges service or exercise its right to have the matter heard before a judge, 10

commissioner, or referee of the court. (Rule 2.816, subds. (a)-(d).) In this case, the parties to the underlying juvenile matter (i.e., minor and the prosecutor) stipulated in writing to Commissioner Kliszewskis service as a temporary judge. However, Facebook, a nonparty to these proceedings, did not. According to Facebook, this circumstance requires us to vacate the sanction order as null and void. We disagree. The Supreme Court recognized that the jurisdiction of a temporary judge to try a cause derives from the parties stipulation [(In re Horton (1991) 54 Cal.3d 82, 90).] [footnote omitted]. It found, however, (1) that an attorney has the power to stipulate to a temporary judge on behalf of his or her client and, thus, that it is not necessary to obtain a defendants personal stipulation (id. at pp. 97-98); (2) that an implied stipulation arises from the parties common intent that the subordinate officer hearing their case do things which, in fact, can only be done by a judge (id. at p. 98); and (3) that such an implied stipulation results from the conduct of counsel in participating in the proceedings and thus tacitly recognizing the authority of the temporary judge. (Ibid.) An attorney may not sit back, fully participate in a trial and then claim that the court was without jurisdiction on receiving a result unfavorable to him. [Citation.] (Id. at p. 91.) (In re Julio N. (1992) 3 Cal.App.4th 1120, 1123; see also Estate of Fain (1999) 75 Cal.App.4th 973, 988-989.) In this case, although Facebook is not a party to the underlying juvenile proceedings and did not enter into a written stipulation consenting to the juvenile court commissioners jurisdiction, there is no question that the company, through its counsel, fully participated in the sanction hearing without complaint and without objection to the [commissioner]. (In re Julio N., supra, 3 Cal.App.4th at p. 1123; see also Estate of Fain, supra, 75 Cal.App.4th at p. 988.) Nonetheless, Facebook, having received an unfavorable result from the hearing, now contends that result must be vacated based on the commissioners temporary judge status. However, under the appellate authority set forth above, we reject Facebooks contention on the ground that Facebooks stipulation to the commissioners jurisdiction was implied as a result of its conduct at the sanction hearing, and that any error resulting from the court or parties failure to obtain 11

Facebooks written consent to the commissioners service prior to the hearing was waived. (Ibid.) III. Was the juvenile court authorized to impose the sanction against Facebook? Facebook next contends there was no statutory basis for imposing the $100,000 sanction, and that the juvenile court commissioner lacked inherent authority to impose it. The following legal principles are relevant to these contentions. We generally review orders for monetary sanctions under the deferential abuse of discretion standard. (See, e.g., Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1212 [45 Cal.Rptr.3d 265]; Burkle v. Burkle (2006) 144 Cal.App.4th 387, 389 [50 Cal. Rptr.3d 436].) However, the proper interpretation of a statute or rule of court relied upon by the trial court as its authority to award sanctions is a question of law, which we review de novo. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479 [64 Cal.Rptr.3d 29]; see People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 [101 Cal.Rptr.2d 200, 11 P.3d 956]; Scottish Rite Cathedral Assn. of Los Angeles v. City of Los Angeles (2007) 156 Cal.App.4th 108, 115 [67 Cal.Rptr.3d 207].) (Vidrio v. Hernandez (2009) 172 Cal.App.4th 1443, 1452.) In this case, the sanction order itself was in the form of a minute order with little analysis of the orders legal underpinnings. Later, when denying Facebooks motion to vacate the sanction order, however, the juvenile court provided the following legal reasoning. First, the court noted that the Code of Civil Procedure limits to $1,500 the amount of any sanction imposed for a partys violation of a court order without good cause or substantial justification. (Code Civ. Proc., 177.5 (section 177.5).) However, the court continued, section 177.5 falls short of providing . . . an appropriate avenue to address entities such as Facebook who disregard court orders with resulting costs to a childs liberty. In particular, the court found, a sanction limited to $1,500 would not adequately deter a multimillion dollar company such as Facebook.6
6

The juvenile court noted that the discovery statutes authorize a court to impose a just monetary sanction against a party that fails to obey an order compelling inspection, copying, testing, or sampling. (Code Civ. Proc., 2031.320, subd. (c).) However, the 12

As such, the juvenile court relied instead upon California Rules of Court, rule 2.30 (rule 2.30) to justify imposing a $100,000 sanction on Facebook, notwithstanding the courts recognition that rule 2.30, on its face, does not apply to juvenile cases. (Rule 2.30, subd. (a).) In doing so, the court reasoned as follows: California Rules of Court, [rule] 2.30 permits a court to order a person to pay reasonable monetary sanctions to the court . . . for failure without good cause to comply with the applicable rules. A person may be a party, attorney, or witness. This rule explicitly does not apply to juvenile court cases, however, its broad language is most informative. It provides the court with teeth to ensure its orders are not disregarded even by a witness rather than a party. In reviewing this legal analysis, we first note our agreement with the juvenile court commissioners assumption that, in crafting sanction orders in the absence of controlling statutory authority, judges indeed possess certain inherent powers necessary to maintain supervision over their proceedings. (Andrews v. Superior Court (2000) 82 Cal.App.4th 779, 781-782; In re Nolan W. (2009) 45 Cal.4th 1217, 1231.) However, the California Supreme Court has made clear these inherent powers must be construed quite narrowly to avoid the serious due process problems that would arise if trial courts had unfettered authority to award . . . sanctions. ([Bauguess v. Paine (1978) 22 Cal.3d 626, 637-638 (Bauguess)].) Hence, Bauguess prohibited a trial court from using fee awards to punish misconduct unless the Legislature, or the parties, authorized the court to impose fees as a sanction.7 (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 809.) court added: A detailed reading of the Discovery Statute and the various sanctions available to the court under C.C.P. Sec. 2023.030 . . . makes clear that it is a round hole to the juvenile courts square peg. It appears that neither a criminal nor a juvenile court could order most of the sanctions options listed without compromising due process. The court further noted that sanctions imposed pursuant to these statutes are designed to compensate a party for loss rather than to deter or punish a partys wrongful conduct, the courts stated intentions in this case, particularly given the effect Facebooks conduct had on minors childs liberty interests. 7 After Bauguess was decided, the Legislature enacted section 128.5 granting trial courts the power to impose monetary sanctions under specific situations. In 1994, the Legislature adapted the approach of the Federal Rules of Civil Procedure by enacting section 128.7 to replace section 128.5 for actions filed after December 31, 1994. (See 13

Our colleagues in the Second Appellate District, Division Seven, recently described the California Supreme Courts position on this issue as follows: California courts have inherent power to take appropriate action to secure compliance with . . . orders, to punish contempt, and to control its proceedings. (Bauguess v. Paine (1978) 22 Cal.3d 626, 637 [150 Cal.Rptr. 461, 586 P.2d 942]; see [Code of Civ. Proc.] 128, subd. (a) [[e]very court shall have the power to do all of the following: []. . . [] (4) To compel obedience to its judgments, orders, and process . . . [] (5) To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto].) However, our trial courts have no inherent power to impose monetary sanctions. (Bauguess, at pp. 638-639; Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 366-367 [70 Cal. Rptr.2d 449] (Trans-Action Commercial); see Andrews v. Superior Court (2000) 82 Cal.App.4th 779, 782 [98 Cal. Rptr.2d 426] [punitive monetary sanction is not authorized under the inherent powers of the courts].) It is a general rule that, outside of a contempt proceeding, trial courts lack inherent power to impose a monetary sanction against an attorney for misconduct in court. (People v. Mohammad (2003) 108 Cal.App.4th 313, 316 [133 Cal.Rptr.2d 308].) (Vidrio v. Hernandez, supra, 172 Cal.App.4th at pp. 1454-1455 [emphasis added]. See also In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1224 [The court had no inherent authority to impose sanctions].) Thus, as these authorities make clear, while a court does have inherent authority to punish for contempt and to control its own proceedings, a court does not have inherent authority or power to impose punitive monetary sanctions. (Bauguess, supra, 22 Cal.3d at pp. 638-639; Andrews v. Superior Court, supra, 82 Cal.App.4th at p. 782.) Rather, an discussion in Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 367-369 [70 Cal. Rptr.2d 449].) (Andrews v. Superior Court (2000) 82 Cal.App.4th 779, 782-783.) Not relevant here, section 128.7 permits monetary sanctions where a party or the partys attorney signs and files pleadings or other papers with the court primarily for an improper purpose, such as to harass or cause unnecessary delay or needlessly increase in the cost of litigation. (Code Civ. Proc., 128.7.) 14

order imposing such sanctions must be grounded in either statutory law or agreement of the parties. (Ibid.; Olmstead v. Arthur J. Gallagher & Co., supra, 32 Cal.4th at p. 809.) Here, as Facebook points out, there is no codified rule of law in California that specifically authorizes the imposition of punitive monetary sanctions against a nonparty witness, like Facebook, for failing to comply with a lawful court order to appear or produce documents. As set forth above, rule 2.30, which the juvenile court relied upon to justify imposition of the sanction, expressly applies to nonparty witnesses, but only those participating in non-juvenile court proceedings. (Rule 2.30, subd. (a) [limiting the rules application to rules of court relating to general civil cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate division of the superior court, and small claims cases].) Section 177.5, in turn, also cited in the courts order, expressly limits monetary sanctions to $1,500, an amount far below the $100,000 sanction imposed against Facebook in this case. (Cf. People v. Tabb (1991) 228 Cal.App.3d 1300, 1304, 1311-1312 [imposing a $75 fine pursuant to section 177.5 for an attorneys failure to appear at a court hearing, failure to answer calendar call twice, and failure to notify the clerk of his whereabouts or reason for nonappearance.]; Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 496 [imposing a $450 fine for a partys failure to appear at a court hearing].) And, while section 128.5 authorizes an order of sanctions to compensate a party for reasonable expenses, including attorneys fees, incurred by [the] party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, in this case, the court ordered sanctions paid to the court for the purpose of deterrence or punishment rather than paid to a party to cover their expenses. In minors responding brief, he mentions for the first time California Rules of Court, rule 5.546, subdivision (j) (rule 5.546(j)) as a possible source of authority for the juvenile courts sanction order. (See People v. Hua (2008) 158 Cal.App.4th 1027, 1033 [a trial court ruling correct under any legal theory, even one not relied upon below, must be affirmed on appeal].) In doing so, minor points to the use of the term person in subdivision (j) to argue that the rules disclosure requirements extend to nonparties such

15

as Facebook.8 However, as Facebook correctly points out, a reading of the rule in its entirety makes clear that it governs only the disclosure duties of the parties in a juvenile proceeding to wit, the petitioner and the minors parent or guardian. It nowhere
8

Rule 5.546 provides in relevant part as follows: (a) General purpose [] This rule must be liberally construed in favor of informal disclosures, subject to the right of a party to show privilege or other good cause not to disclose specific material or information. (b) Duty to disclose police reports [] After filing the petition, petitioner must promptly deliver to or make accessible for inspection and copying by the child and the parent or guardian, or their counsel, copies of the police, arrest, and crime reports relating to the pending matter. . . . (c) Affirmative duty to disclose [] Petitioner must disclose any evidence or information within petitioners possession or control favorable to the child, parent, or guardian. (d) Material and information to be disclosed on request [] Except as provided in (g) and (h), petitioner must, after timely request, disclose to the child and parent or guardian, or their counsel, the following material and information within the petitioners possession or control: [] (1) Probation reports prepared in connection with the pending matter relating to the child, parent, or guardian; [] (2) Records of statements, admissions, or conversations by the child, parent, or guardian; [] (3) Records of statements, admissions, or conversations by any alleged coparticipant; [] (4) Names and addresses of witnesses interviewed by an investigating authority in connection with the pending matter; [] (5) Records of statements or conversations of witnesses or other persons interviewed by an investigating authority in connection with the pending matter; [] (6) Reports or statements of experts made regarding the pending matter, including results of physical or mental examinations and results of scientific tests, experiments, or comparisons; [] (7) Photographs or physical evidence relating to the pending matter; and [] (8) Records of prior felony convictions of the witnesses each party intends to call. (e) Disclosure in section 300 proceedings [] Except as provided in (g) and (h), the parent or guardian must, after timely request, disclose to petitioner relevant material and information within the parents or guardians possession or control. If counsel represents the parent or guardian, a disclosure request must be made through counsel. [] . . . [] (j) Failure to comply; sanctions [] If at any time during the course of the proceedings the court learns that a person has failed to comply with this rule or with an order issued under this rule, the court may order the person to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit a party from introducing in evidence the material not disclosed, dismiss the proceedings, or enter any other order the court deems just under the circumstances. (k) Continuing duty to disclose [] If subsequent to compliance with these rules or with court orders a party discovers additional material or information subject to disclosure, the party must promptly notify the child and parent or guardian, or their counsel, of the existence of the additional matter. (Cal. Rules of Court, rule 5.546.) 16

purports to govern the conduct of nonparty witnesses like Facebook. (Rule 5.546.) In particular, the reference in subdivision (j) to a person [who] has failed to comply with this rule or with an order issued under this rule does not extend the rules application to nonparties; rather, it simply authorizes imposition of sanctions against those persons already subject to the rules requirements for their failure to comply. Finally, we note that the juvenile court possessed authority under the Welfare and Institutions Code to hold Facebook in contempt for failing to comply with its lawful order(s) to appear or produce documents. ( 213 [[a]ny willful disobedience or interference with any lawful order of the juvenile court or of a judge or referee thereof constitutes a contempt of court].) However, neither the subpoenas nor the sanction order contained any finding that Facebook was in contempt of court. In fact, the juvenile court made no reference whatsoever to contempt, when considering or imposing the $100,000 sanction. Thus, to the extent the commissioners order could be construed as an adjudication of contempt proceedings, such order would be defective and unenforceable. (In re Marcus (2006) 138 Cal.App.4th 1009, 1014-1015 [a contempt order must be clear, specific, and unequivocal, with [a]ny ambiguity in [the order] . . . resolved in favor of an alleged contemnor]; Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1166-1167 [there is no presumption of regularity in contempt proceedings [citations], nothing can be implied in support of an adjudication of contempt].)9
9

In any event, we hasten to add that the usual penalties for contempt of court in a civil action are a fine of up to $1,000, or imprisonment for up to five days, or both. (Code Civ. Proc., 1218, subd. (a).) Where the contempt consists of a willful refusal to testify, the contemner may be imprisoned until he or she gives the answer. (Code Civ. Proc., 1219, subd. (a).) Under Penal Code section 166, subdivision (a)(4), the willful disobedience of a lawfully issued court order is a contempt punishable as a misdemeanorup to six months in jail, or a fine of $1,000, or both. (Pen. Code, 19.) Welfare and Institutions Code section 213 provides that [a]ny willful disobedience or interference with any lawful order of the juvenile court . . . constitutes a contempt of court, but does not specify the authorized punishment. While no case has yet construed the scope of this section, the penalties for violation of section 213 are apparently those set forth in Code of Civil Procedure section 1218 for contempts generally: a fine of up to 17

Thus, having identified no authority, statutory or otherwise, for the $100,000 sanction imposed against Facebook in this case, we conclude the juvenile court commissioners order was invalid as a matter of law. We therefore reverse the sanction order, as well as the related order denying Facebooks motion to vacate, and remand this matter to the juvenile court for further consideration in light of the conclusions reached above without addressing Facebooks alternative argument that the sanction order lacked an adequate factual basis because the company at all relevant times acted reasonably and in good faith.

DISPOSITION The juvenile courts order imposing a sanction on Facebook in the amount of $100,000 and related order denying Facebooks motion to vacate are reversed, and the matter is remanded to the juvenile court for further proceedings consistent with the opinions expressed herein. Each side shall bear its own costs on appeal. _________________________ Jenkins, J. We concur: _________________________ McGuiness, P. J. _________________________ Pollak, J.

$1,000, imprisonment of up to five days, or both. (In re Michael G. (1988) 44 Cal.3d 283, 289, fn. 3 [243 Cal.Rptr. 224, 747 P.2d 1152.) (In re Mark A. (2007) 156 Cal.App.4th 1124, 1143. See also H.J. Heinz Co. v. Superior Court (1954) 42 Cal.2d 164, 174 [a court has no authority to award compensatory damages in a contempt action].) Thus, even if we interpreted the courts finding against Facebook as one of contempt, the sanction orders punishment a $100,000 fine would nonetheless remain unauthorized. 18