Opinion
David Rottenberg, former attorney for the named appellant herein, Linden L. Fuller, appeals from the order of October 26, 1983, denying motion for relief (§ 473, Code Civ. Proc.) from an order imposing a $2,500 sanction. 1
*1073 I
Facts
In 1982, Linden L. Fuller filed petition for dissolution of her marriage to Errol Kent Fuller involving, among other issues, determination of separate and community interests of the parties in numerous parcels of real property being operated by Mrs. Fuller.
On November 1, 1982, respondent (all reference hereinafter to respondent is to his counsel) served on Mrs. Fuller request for production of documents relating to the properties under her control. She made no written response thereto and did not appear in court for production of documents and did not produce any. Respondent was equally unsuccessful in attempting to communicate with appellant. Finally, on January 25, 1983, respondent filed his first notice of and motion to compel production of documents and for sanctions.
On February 28, 1983, counsel met and conferred and agreed that Mrs. Fuller would produce certain documents by March 31, 1983. Upon her failure to do so, and after numerous unsuccessful attempts to contact appellant, respondent on April 21, 1983, notified appellant in writing that Mrs. Fuller’s response was unverified and faulty in other respects. On May 19, 1983, appellant promised respondent he would serve a proper response. Upon appellant’s failure to do so, and on May 20, 1983, respondent’s motion to compel production of documents and for sanctions was heard. The motion was granted in certain particulars, and Mrs. Fuller was ordered to produce various documents; motion for sanctions was denied.
Thereafter Mrs. Fuller failed to comply prompting respondent to file second notice of motion to compel compliance with the court’s order for production of documents and for sanctions ($380 sought against Mrs. Fuller for her willful failure to comply). Meanwhile lis pendens was filed on the parcels of property; motion to expunge and the other motions were set for hearing on July 27, 1983. On the July 27 hearing an order was made, based on written stipulation entered into by the parties, expunging lis pendens on nine parcels of real property and, among other things, allowing Mrs. Fuller to continue to operate the properties and requiring her to account for and turn over in a timely fashion to a joint trust account in the names of appellant and respondent, all rents and profits. In addition, the court orally ordered her to make an accounting of her operation of the properties to respondent and to respond to the request for production and render her accounting to the court on or before August 30, 1983, and the parties to return to court on August 30.
*1074 No documents were produced, no proper response to request for production of documents was made and no accounting was rendered to respondent and the court by Mrs. Fuller, thus on August 30, 1983, respondent’s motion to compel compliance with order re production of documents and for sanctions, and order to show cause re receiver and accounting came on for hearing; respondent and his counsel appeared but neither appellant nor Mrs. Fuller was present. By virtue of the failure of appellant and Mrs. Fuller to appear and their failure to render a proper accounting, failure to adequately and properly respond to request for production of documents and failure to pay over rents and profits on the real property as required by the order of July 27, 1983, the court on August 30, 1983, made its order awarding sanctions to respondent and his attorney against appellant and Mrs. Fuller, jointly and severally in the amount of $2,500.
On September 21, 1983, appellant was relieved as attorney for Mrs. Fuller. Meanwhile appellant filed motion for relief (from Aug. 30 order granting sanctions) under section 473, Code of Civil Procedure on stated grounds of excusable neglect, mistake and inadvertence. The motion was heard on declarations and denied on October 26, 1983. It is from this order Mr. Rotten-berg appeals.
II
Scope of Appeal
Mr. Rottenberg has appealed on the judgment roll. His main appellate issue is whether the trial court abused its discretion in denying his motion to be relieved of the sanction order of August 30, and it is on this motion he made his record in the court below. In a shotgun approach appellant also raises a variety of other issues which were not raised in the trial court or argued on his motion. Only one such issue, lack of notice to appellant of sanctions to be sought against him individually, will be discussed.
III
No Abuse of Discretion
In support of his motion for relief appellant’s declaration asserted: Mrs. Fuller was in court and understood the order requiring her to render an accounting within 30 days; he discussed the order with her, explained the nature of the information required and advised her to hire an accountant; he told her he would be out of the country on August 30 and it was imperative she comply with the court’s order so the cause would go olf calendar; she hired an accountant but appellant never heard from either one; he re *1075 ceived no accounting from her or the accountant, and left the country on August 25 for a “long-planned” vacation, but that morning instructed his clerk to call Mrs. Fuller and stress the importance of complying with the order; the clerk was unable to contact her; it “was up to” Mrs. Fuller to follow through “as she promised”; on September 20, Mrs. Fuller discharged him. In his memorandum of points and authorities he argued that Mrs. Fuller knew what she was supposed to do, he made every possible effort to obtain her compliance and she knew he was leaving the country, but there was nothing he could do to force her to “act appropriately”; he relied upon her to comply and he should not be penalized for her failure.
Two declarations were filed in opposition to the motion. The declaration of Mrs. Fuller, asserting that appellant did not advise her when he would be out of the country, and generally blaming him for her failure to comply, prayed for a denial of his motion and an order making him solely responsible for paying the $2,500. The declaration of respondent (counsel) asserted: on the July 27, 1983, hearing appellant told him and the court that August 30 was a “convenient” time for him and his client to return; appellant must have known then about his “long-planned” vacation and that he would be out of the country at that time, but at no time did appellant advise him or the court he would not be in court on August 30.
In a second declaration appellant said he thought he had an oral understanding with respondent that if his client produced the accounting the cause would go off calendar.
The foregoing are all of the facts the trial court had before it at the time it was called upon to exercise its discretion on appellant’s 473 motion. In disregard of the rules governing appellate review, appellant asks us to accept his reasons for not appearing, which version was rejected by the trial court, and advances a factual argument better suited to a trial court presentation. Implicit in the denial of appellant’s motion for relief under section 473, Code of Civil Procedure is the finding that appellant had established none of the grounds (excusable neglect, mistake, inadvertence) for vacating the August 30 sanction order; we will not disturb the order of October 26. Appellant has failed to sustain his burden of showing an abuse of judicial discretion
(Lint
v.
Chisholm
(1981)
IV
Notice
For the first time, appellant raises the issue of notice. Under ordinary circumstances, for his failure to raise the issue below he would be
*1076
precluded from advancing it in this court. Even a constitutional right must be raised at the trial level to preserve the issue on appeal
{Snelson
v.
Ondulando Highlands Corp.
(1970)
The power to impose discovery sanctions and enforce them lies in the broad discretion of the trial court.
{Calvert Fire Ins. Co.
v.
Cropper
(1983)
First, section 2034, Code of Civil Procedure, addresses the conduct of the party, not that of counsel
(Calvert Fire Ins. Co.
v.
Cropper
(1983)
Second, the moving papers sought sanctions only against Mrs. Fuller and for her conduct, and so stated. The second notice of motion and motion to compel compliance with court order and for sanctions, the only pleading upon which the sanctions order could have been based and the pleading upon which respondent herein relies to establish there was a notice before the trial court, states that the motion will be made on the grounds that Mrs. Fuller was ordered to produce certain documents, and for her willful failure to comply with the court’s discovery order. The declaration of respondent (counsel) in support of the motion removes all doubt that it was solely Mrs. Fuller’s actions that had necessitated $380 in attorney’s fees, the only sanction prayed for. While sanction of $2,500 was actually imposed against Mrs. Fuller and appellant on August 30 “by virtue” of their failure to appear on that day, render a proper accounting, adequately and properly respond to request for production of documents and pay over rents and profits, we find no notice to appellant that sanctions would be sought for “their” failure to do the foregoing. It is obvious that at the time respondent appeared in court on August 30, he had no intention of seeking sanctions against appellant individually.
Third, appellant was never placed on notice of possible sanctions against him and the need to prove blamelessness, nor did he have any reason to suspect sanctions would be awarded against him individually. While as a formality the notice of motion at the outset was directed to petitioner (Mrs. Fuller) and David Rottenberg, her attorney, nothing in the notice, pleading, declaration or memorandum of points and authorities can be construed as notice to appellant that sanctions would be sought against him individually for something he did or failed to do. The notice of motion recites that the motion will be based on section 2034, subdivisions (a) and (b)(2)(D), a statute directed to the conduct of Mrs. Fuller.
Fourth, notice prior of imposition of sanctions is mandated not only by statute but also by the due process clauses of both state and federal Constitutions. (§ 2034, Code Civ. Proc.; Cal. Const., art. I, § 7; U.S. Const., 14th Amend.)
*1078
Fifth, case authority condemns imposition of sanctions without prior notice.
Blumenthal
v.
Superior Court
(1980)
Disposition
We have reached this conclusion after considering the briefing by both parties in their appellate briefs. We think the result is clear. Let a peremptory writ of mandate issue directing the Superior Court of Los Angeles County to annul and vacate that portion of the order of August 30, 1983, reciting David Rottenberg’s failure to appear at the hearing of August 30, 1983, and failure to render a proper accounting, failure to adequately and properly respond to the request for production of documents, and failure *1079 to pay over rents and profits on the subject real properties to the joint attorneys’ trust account, as required by the stipulation and order dated July 27, 1983, and awarding sanctions in the amount of $2,500 to respondent and his attorney against David Rottenberg.
Thompson, J., and Johnson, J., concurred.
Notes
An order imposing sanctions is appealable as a final order on a collateral matter directing the payment of money. Although appellant was not a party in the main action, he was made a party of record in the collateral matter by the court’s order. The order imposing sanctions was a final determination of that matter. Thus, Mr. Rottenberg could have appealed the order of August 30, 1983 (Bauguess v.
Paine
(1978)