APPEAL from judgments of the Superior Court of Los Angeles County, Wendell Mortimer, Jr., Judge. Affirmed.
Attorneys and Law Firms
Greenberg Traurig, John M. Gatti and John J. Lucas for Plaintiffs, Cross-defendants and Appellants.
Ford, Walker Haggerty & Behar and Joseph A. Heath for Defendant, Cross-complainant and Respondent Los Angeles County Metropolitan Transportation Authority.
Law Offices of Kent G. Mariconda and Kent G. Mariconda for Defendant, Cross-complainant and Respondent Star Iron Works, Inc.
Gibbs, Giden, Locher & Turner, Ronald S. Sofen and Jeriel C. Smith for Defendant, Cross-complainant and Respondent Kajima/Ray Wilson, National Union Fire Insurance Company of Pittsburgh, PA, American Home Assurance Company and Liberty Mutual Insurance Company.
*1 Pleadings were stricken and defaults were entered after years of discovery stonewalling culminating in the intentional destruction of evidence by a corporation and its principals. The corporation and its principals appeal. We affirm.
The Los Angeles County Metropolitan Transportation Authority retained several general contractors (including Kajima/Ray Wilson and Tutor-Saliba Perini) for the construction of various MetroRail Red Line stations, and two steel contractors (Star Iron Works, Inc. and Oved & Associates Construction Services, Inc.) joined forces to bid for (and won) subcontracts for several of the stations. From 1994 to 2000, Oved managed and administered various aspects of Star Iron's business, including its billing, banking, and collections from the general contractors.
In March 2000, Star Iron sued Oved for breach of contract, fraud, and misappropriation of funds, alleging that Oved had received millions of dollars on Star Iron's behalf, had commingled it with its own money, then misrepresented to Star Iron that the funds had never been received from the general contractors, and that (instead of paying Star Iron) Oved had “loaned” money to Star Iron so it could continue its operations pending payment by the general contractors. Oved cross-complained for about $2 million allegedly due on the “loans” and for another $1 million for administrative services. (See Oved & Associates Construction Services, Inc. v. Superior Court
(Dec. 30, 2003, B169799 [nonpub. opn.], Oved I.
) There was a flurry of related lawsuits filed around the same time, including actions by and involving Oved, the MTA, the general contractors, insurers, bondholders, and others. (See Kajima/Ray Wilson v. Los Angeles Metropolitan Transportation Authority
(Feb. 18, 2004, B170003 [nonpub. opn.], Oved II.
In April 2000 (in the case before us on this appeal), Oved sued Kajima's and Star Iron's insurance companies as sureties for money allegedly owed for Oved's work as a second-tier subcontractor, and in its third amended complaint added Kajima and Star Iron as defendants.
Kajima cross-complained against the MTA and Star Iron. Star Iron cross-complained against Oved (for misappropriation of funds), Kajima, and two of the sureties. The MTA cross-complained against Oved, alleging it had submitted false claims.
Star Iron's and Oved's lawsuits were deemed related and discovery was consolidated because the critical issues were the same in both cases-including the questions about how much Oved billed and received, for whom the funds were received, and where the funds ended up. Oved's financial records were from the outset a primary focus of the parties' discovery efforts.
In July 2001, in Star Iron's action against Oved, Star Iron demanded production of Oved's financial and accounting records for the various projects, including the records of Oved's collections and allocations of funds from the general contractors. Oved objected to all of the demands but produced some documents, and Star Iron moved to compel production. In March 2002, the trial court (Hon. William A. MacLaughlin) overruled Oved's objections, granted the motion with only minor exceptions, and ordered Oved to produce the documents within 20 days.
*2 “In April, Oved complied with about half of the trial court's order but informed Star Iron by letter that it would ‘not be producing documents responsive to [10 of the 20 demands],’ and would instead move for reconsideration of the March order. As to those documents that were produced, they were ‘project documents' that Star Iron already had or had access to, and they did not include any of the accounting and financial records that Star Iron needed to trace the funds that were the subject of Star Iron's claim against Oved. Oved['s] motion for reconsideration ... was denied, and the trial court gave Oved an additional 15 days to produce the remaining documents.
“Three months later, and notwithstanding its April [admission] that it was withholding documents, Oved finally ‘responded’ with a claim that all responsive documents had already been produced and would in any event be produced again at an upcoming deposition. Star Iron wrote to Oved, describing the response as a clear violation of the trial court's order but offering Oved additional time to respond.” (Oved I, supra,
typed opn. at pp. 4-5.)
Other motions to compel the production of Oved's financial and accounting documents followed, and the trial court (on September 5, 2002) ordered Oved to produce four categories of documents within 30 days: (1) all of Oved's “internal accounting records ... from 1994 through 2000, including balance sheets, profit and loss statements, accounts receivable, accounts payable and financial statements”; (2) all of its “accounting records prepared by [its] accountants ... from 1994 through 2000, including balance sheets, profit and loss statements, accounts receivable, accounts payable and financial statements”; (3) its “[b]anking records ... from 1994 through 2000 including all cancelled checks (front and back), all deposit slips, and any monthly statements not previously produced”; and (4) all of its “corporate minutes ... from 1994 through 2000.”
On October 11, Oved produced some documents. Star Iron copied them, then wrote to Oved describing the numerous documents that were still missing.
Meanwhile, in Oved's action (the one now before us), the MTA and Star Iron served Oved with demands for the production of the same documents covered by the trial court's September 2002 order entered in Star Iron's action.
In November 2002, Oved responded to both demands with objections, asserting among other things that the documents had already been produced in Star Iron's action. In mid-December, the MTA and Star Iron separately moved to compel further responses, and their motions were granted at the end of January 2003. Oved did not comply. (Oved I, supra,
typed opn. at p. 5.)
“In May , Star Iron (later joined by the MTA) filed a motion for sanctions [including terminating sanctions] or, alternatively, to compel production, explaining that Oved had not complied with the January order-and that Oved was claiming it could not find a significant part of its financial records. For this reason, Star Iron sought, in the same motion,
an order compelling Oved to produce its computer hard drive, which Star Iron said was needed ‘to determine when various information was entered [and] whether any of the information ha[d] been altered since the commencement of the litigation.’
*3 “In support of the motion, Star Iron presented evidence that (in July 2002) the MTA had asked Oved to preserve its computer hard drives, back-up tapes, and discs, that Oved had ‘agree[d] that information stored in electronic form [might] be relevant as the case proceed[ed],’ and that Oved had asked the MTA to take the same steps it wanted Oved to take to preserve such information. Star Iron also established that Oved's president, Mary Harel, had testified at her deposition that ‘[MAS] 90’ was the only accounting program used by Oved, and that one computer was ‘dedicated just for the [MAS] 90.’ When Star Iron asked Oved for the computer hard drive, Oved responded with (1) a conclusory claim that the hard drive contained ‘documents and information which is privileged, proprietary, and pertains to unrelated matters,’ (2) an agreement to copy ‘the pertinent records from the hard drive onto a disc’ and to provide the disc to Star Iron, and (3) an assertion that ‘the records stored on the hard drive are purged after three years.’
“At some point, Oved produced a ‘CD-ROM’ purportedly containing Oved's accounts payable and receivable, bank records, general ledger, job cost, and payroll information. The MTA, concerned that the CD-ROM was incomplete and that Oved's records might be ‘purged,’ propounded special interrogatories to Oved, and Oved responded that it had disposed of ‘back-ups' during a March 2003 move. Oved never produced the’[MAS] 90' software, claiming it did ‘not have a license to give’ the software to Star Iron or the MTA, thereby rendering the CD-ROM useless. [ ] Oved opposed Star Iron's motion and the MTA's joinder, claiming it had fully complied with the trial court's orders.” (Oved I, supra,
typed opn. at pp. 5-6.)
“The motion was heard by a discovery referee (Hon. Edward Y. Kakita, Ret.) on June 19, 2003, at which time Star Iron pointed out that Oved had been stalling for over two years, and that the only way Star Iron, the MTA, and the other parties could ever verify any financial information would be by an expert's inspection of Oved's hard drive. The MTA informed the court that Oved had produced some records (sans verification) after the current motion was filed, but others were still missing. The MTA's lawyer (who had figured out how to view the CD ROM provided by Oved) showed the referee the limited nature of the information on the disc, and explained the concerns that arose when Oved claimed it had lost or purged its back-up tapes and discs.
“Star Iron and the MTA pointed to the absence of any evidence suggesting there was any privileged or confidential information on the hard drive emphasizing testimony by Oved's president that the computer in question was dedicated to accounting and, by then, out of date and not in use. Indeed, [the president] had testified that Oved had ‘stopped doing business in March of 2000’ and had received its last payment ‘from any source ... in January of 2001.’ Although Oved argued that the hard drive contained privileged, confidential and personal information, including e-mails to and from its lawyers, it did not offer any evidence of any kind to support that argument.
*4 “The referee submitted his report on July 15, 2003, recommending to the trial court that Oved be ordered to produce the missing documents within 20 days, that ‘the production [should include Oved's] computer hard drive, which maintained Oved's accounting information from 1994 through 2000,’ and that Oved and its lawyer should be ordered to pay about $2,000 in sanctions to Star Iron. The referee recommended that the MTA's joinder be denied as untimely. [ ] Two days later, on July 17, the trial court (Hon. Wendell Mortimer, Jr.) approved and adopted the referee's report.” (Oved I,
typed opn. at pp. 6-7.)
“On July 28, Oved moved to vacate the July 17 order on the ground that it had not been afforded sufficient time to file objections to the referee's report (and explained its objections in its motion to vacate). The trial court considered Oved's motion and its objections to the referee's report, read the transcript of the hearing held by the referee, then (on August 14) denied Oved's motion to vacate.
“On August 27, Oved's lawyer wrote to Star Iron's lawyer to say he would make the hard drive available at his office so that he could monitor the inspection. He said he assumed Star Iron's lawyer was ‘interested in obtaining copies of non-privilege[d] records' stored on the hard drive, and said he would furnish ‘a privilege log within the next few days.’ Star Iron's lawyer disagreed, stating in his response that Oved's lawyer had to know it was Star Iron's intent to ‘obtain a mirror image, bit for bit, of [Oved's] hard drive’-and reminding Oved's lawyer that there was no evidence that the hard drive contained any confidential or privileged information.
“Undeterred, Oved's lawyer wrote to Star Iron's lawyer on September 3 to offer a ‘workable compromise’-he offered to produce the hard drive if Star Iron and the MTA would agree to specified ‘procedures' to protect ‘the documents and files for which Oved ... is claiming a privilege.’ Then, without waiting for a response, Oved notified Star Iron that it was submitting an ex parte application to ‘clarify’ the August 14 order. In fact, the ex parte application was not for clarification-it was a request to establish a ‘fair and complete procedure for the copying of Oved['s] hard drive’-something that had never before been requested by Oved. The application was denied. (Oved I, supra,
typed opn. at pp. 8-9.)
“Oved then filed a petition for a writ of mandate and a request for a stay in which it asked us to compel the trial court to vacate its orders for production of the hard drive and for the payment of sanctions to Star Iron ‘on the grounds that Oved ha[d] already produced all requested documents and that [Star Iron] never made a proper request for production of the hard drive....’ In the alternative, Oved asked us to order the trial court to impose procedures to protect Oved's privileged and confidential information, ‘and to protect against risk of loss or damage’ to the hard drive.” (Oved I, supra,
typed opn. at p. 9.)
*5 Based on “a one-sided view of the proceedings” presented by Oved, “[w]e saw a risk of spilled milk, stayed the order for production, and issued an order to show cause.” On December 30, 2003, after reviewing the record, we “realize[d] there was no milk in the bottle, vacate[d] our stay, and den[ied] the petition.” (Oved I, supra,
typed opn. at p. 3.)
Notwithstanding contrary findings by the trial court and by us, Oved continued to insist there were privileged and irrelevant materials on the hard drive that did not have to be produced. Ultimately, the parties stipulated that, on January 15, 2004, the hard drive would be “imaged” by an expert (Michael Gurzi of Guidance Software, Inc.), and that Gurzi would maintain possession of the image until the trial court “clarif[ied] which files and portions of the hard drive must be produced to Star [Iron] and the MTA.”
In the presence of the parties' attorneys and other GSI consultants, Gurzi copied the hard drive, and the MTA then applied ex parte for an order releasing the copy. On January 20, the trial court granted the application and ordered the release of the copy to MTA's attorney “in its entirety, and without further objection” that same day. The copy was released and analyzed.
In late February 2004, Star Iron and the MTA separately moved to strike Oved's answers, enter its default, and dismiss its complaint (and any cross-complaint) on the ground that it had violated the court's order to preserve and produce the hard drive by “intentionally delet[ing] information from the hard drive.” Among other evidence offered in support of the motions, there was a declaration by Brent Botta, an experienced computer forensics examiner.
Botta described the manner in which he had examined the hard drive, the processes by which files are deleted, the means by which deleted files may be restored, the method by which deletions can be tracked (via an “INFO2 file”), and the way he could determine whether there had been a knowing deletion by a user. According to Botta, files were deleted from Oved's hard drive during the afternoon of December 30, 2003 (the day we filed our opinion denying Oved's writ petition), by a user's initiation of the “empty recycle bin” function. Index records 2 through 67 were forensically recovered and showed that, before the December 30 deletion, files were “individually selected and manually deleted.” Index records 0, 1, and others that might have existed beyond 67 were not recoverable (so that he could not determine what had been deleted).
Oved opposed both motions, claiming it had “fully complied” with the court's orders. In a supporting declaration, Harel (Oved's president) stated that Oved always maintained hard copies of all its accounting records, and those hard copies had been produced to Star Iron on multiple occasions. Oved also offered declarations from experts who disputed Botta's assumptions, claiming he had failed to take into account the fact that the external hard drive was attached to an HP Pavilion computer running Windows XP at the time it was copied (rather than being attached to Oved's computer).
*6 In reply, Botta explained that he was aware of the conditions extant when the hard drive was copied, and that “in conducting [his] research [he had] recreated the environmental set-up at the Oved office using an external USB hard drive connected to a Windows XP operating system.” Botta noted that Oved's declarations did not refute the technical accuracy of Botta's conclusions, and that they did no more than offer alternative theories about the cause of the loss of electronic information. In short, no one said that files were not missing.
On March 23, the trial court granted the MTA's and Star Iron's motions, finding that Oved had not presented evidence to rebut Botta's testimony “that the recycle bin on the hard drive ... had been emptied, that the INFO 2 file ha [d] been reset, and that the file's last written date had been updated on December 30, 2003. Oved's experts['] ... declarations rest on the unfounded assumption that the hard drive's forensic examination can only be conducted in connection with the examination of a[n] HP Pavilion computer. There is no foundation for the assumption [and] no evidence ... which suggests that the actions taken on December 30, 2003 with respect to the hard drive can be described as anything but willful.
“This conduct effectively destroys the ability of either the MTA or Star [Iron] to litigate the trial which is set to commence in less than two months. Oved's financial records have been a primary focus of this case and Oved has stated that they maintained their accounting information for 1994 through 2000 on their computer's hard drive. Oved has admitted that it is no longer in business and that the only information on the hard drive is accounting information relevant to the issues in this case. And yet, on December 30, 2003, the exact date of the Court of Appeal decision [on Oved's writ petition] in this case, Oved accessed and emptied documents from the hard drive, violating previous court orders and destroying the integrity of the financial data. This conduct, along with a two-year pattern of discovery stonewalling and the persistent refusal of Oved to acknowledge the extent of the orders made by Judge Kakita, this Court, and the Court of Appeal[ ] to preserve the evidence on the hard drive, not merely the data in the MAS 90 program, merits the relief requested. The conduct complained of goes beyond the corporate entity to Mary Harel and Pinhas Oved who are officers and employees of the corporation, and their answers are stricken and default entered as requested.”
Oved subpoenaed Botta for a deposition and moved for reconsideration on the ground that the trial court's findings were “not supported by the evidence and the Court ... erred in its rulings.” Star Iron and the MTA opposed the motion and applied ex parte for an order barring the “defaulted parties” from conducting discovery. The trial court granted the ex parte application and denied the reconsideration motion, finding there were no new or different facts, circumstances or law. (Code Civ. Proc., § 1008.)
*7 There followed a series of additional motions and joinders and clarifications of the court's ruling, after which the trial court struck Oved's operative complaint in its entirety (including its claims against Kajima insofar as it provided a basis for Kajima's indemnity claim against the MTA), struck the answers of Oved and its principals to Star Iron's and the MTA's cross-complaints, and entered the defaults of Oved and its principals.
Following a default prove-up hearing on June 22, the trial court (1) entered judgment in favor of the MTA on its cross-complaint against Oved, Pinhas Oved, and Harel, jointly and severally, in the amount of $5,268,732; and (2) entered judgment in favor of Star Iron on its cross-complaint against Oved, Pinhas Oved, Harel and Shitrit, jointly and severally, in the amount of $979,958.73. Oved and its principals appeal.
In a series of related arguments, Oved contends the trial court abused its discretion by imposing terminating sanctions. None of these claims have any merit.
Oved contends the terminating sanction was not supported by the evidence and thus deprived Oved of its due process rights. We disagree.
First, there is no due process violation where, as here, critical issues of fact were directly affected by Oved's discovery abuses. (Cf. Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 305.) To the extent Oved claims the orders are overbroad because something less would have been sufficient to protect the other parties' interests (Thomas v. Luong (1986) 187 Cal.App.3d 76, 81), we disagree. Oved stonewalled the financial discovery for more than two years, then destroyed the relevant evidence. Any lesser sanction for this willful failure to comply would have condoned Oved's behavior and by definition would have been insufficient. (§§ 2023.010, 2023.030, subd. (d); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496-497.)
Second, there is no abuse of discretion where, as here, the trial court's orders were regularly and routinely disobeyed and evidence was intentionally destroyed. The trial court accepted Botta's testimony and found that, on the same day we filed our opinion in Oved I,
the hard drive was intentionally manipulated so that files were destroyed. The trial court's factual findings are binding (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623), and those findings show that Oved willfully failed to comply with the court's discovery orders. It follows that the trial court did not abuse its discretion. (R.S. Creative, Inc. v. Creative Cotton, Ltd., supra, 75 Cal.App.4th at pp. 496-497; Vallbona v. Springer (1996) 43 Cal.App.4th 1525; Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052 [the testimony of a single credible witness may constitute substantial evidence].)
Oved contends it was denied an opportunity to rebut “new issues” raised by Star Iron and the MTA in their reply papers filed in support of their motions for terminating sanctions. We disagree.
*8 The “new issues” articulated by Oved-statements in Botta's reply declaration about the denial of access to Oved's PC to which the hard drive was connected-were responses to issues raised by Oved's opposition and Oved's experts, all of which could have been addressed by Oved at the hearing on the motions. More to the point, the reply had little, if anything, to do with the unrebutted fact that files were intentionally deleted from the hard drive on the day our opinion was filed in Oved I.
This is a non-issue. (§ 1005, subd. (c).)
We summarily reject Oved's contention that the ‘terminating sanctions were an unwarranted limitation upon [its] right of discovery” (meaning its right to depose Botta and right to unspecified discovery from Kajima). The fact that the entry of default extinguishes the defaulted party's right to initiate discovery (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386) does not in itself make a terminating sanction “unwarranted,” and Oved does not explain why it should be so viewed in this case. What more could Botta have said? We haven't a clue because Oved has not suggested how a deposition could have possibly altered the outcome of this case. The point, such as it was, has been abandoned by Oved's failure to develop it and failure to cite supporting authorities. (Tiernan v. Trustees of Cal. State Universities & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 685, fn. 4.)
Oved contends the terminating sanctions should not have been imposed against its principals because there is no evidence they disobeyed the court's orders and because there is insufficient alter ego evidence to pierce the corporate veil. We disagree.
The trial court found that Oved and the three principals (all of whom are parties to this action) engaged in a misuse of the discovery process within the meaning of section 2023.030. The evidence supports this finding. The original discovery demands were directed to the Oved principals as well as to the corporation (fn.3, ante
), so that each of the principals was responsible for the production of the requested items, and each was bound by the trial court's orders.
The company could not in any event operate except through its principals, and their involvement was shown by the evidence. Oved was “run” by Pinhas Oved and his daughters, Harel (Oved's president) and Shitrit, and it was Pinhas Oved who proposed that Star Iron (a minority business enterprise) join forces with Oved so they could win government contracts. In exchange, Pinhas Oved promised to assist Star Iron with its accounting, banking, and administration, and it was through this scheme that Harel and Shitrit became signatories on Star Iron's bank accounts. By the end of 1999, Harel and Shitrit had endorsed over $12 million in checks received from general contractors for Star Iron's work-and deposited those checks into Oved's accounts. During the 1990's, hundreds of thousands of dollars were paid from Oved to Harel and Shitrit-but not as salary.
*9 This evidence-which shows wrongful conduct by the principals as well as a unity of interest and ownership between the corporation and the individuals such that their separate personalities no longer exist-supports the trial court's finding that the principals are personally liable based on their own acts and under the alter ego doctrine because, on these facts, a failure to disregard the corporate entity would sanction a fraud and promote an injustice. (Communist Party of U.S. v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 993; R.S. Creative, Inc. v. Creative Cotton, Ltd., supra, 75 Cal.App.4th at p. 496.)
Oved contends the damages awarded to Star Iron and the MTA exceed the amounts permitted by section 580, which limits the relief granted after a default to that which was demanded in the complaint or cross-complaint. We disagree.
Star Iron alleged in its fourth cause of action that Oved had converted funds paid to Oved by Kajima for Star Iron's benefit, and Star Iron claimed that it was entitled to no less than $2.5 million. The trial court awarded only $979,958.73 to Star Iron. Plainly, there was no violation of section 580.
Based on the evidence presented by the MTA at the prove-up hearing, the trial court found Oved liable for a statutory penalty ($10,000) for each of 34 false claims under the California False Claims Act, plus various investigative costs (some of which were trebled), litigation costs, and attorneys' fees, for a total judgment of $5,268,732. In its cross-complaint, the MTA prayed for each of those items, including $10,000 for each false claim (although it did not fix the number of false claims or state an exact amount sought for any item of damages). (National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417-418.)
We agree with the MTA that Oved knew or could determine the number of false claims it submitted, that all of those claims were identified during discovery (long before the defaults were entered), and that Oved knew and conceded that the MTA's cross-complaint exposed it to “perhaps millions of dollars in damages.” As in Cassel v. Sullivan, Roche & Johnson (1999) 76 Cal.App.4th 1157, a partner's suit against his partnership, the damages were completely within Oved's knowledge, and Oved's default will not diminish the MTA's right to recover the amount it is owed. (Id. at p. 1163.) It is sufficient that the complaint specified the type of relief requested. (Id. at pp. 1163-1164.)
The judgments are affirmed. Star Iron, the MTA, Kajima, and the sureties are awarded their costs of appeal and, as to Star Iron, those costs shall include attorneys' fees as provided in its contract with Oved, in an amount to be determined by the trial court on remand.
We concur: SPENCER, P.J., and MALLANO, J.
Except where the context shows otherwise, our references to Oved include its principals, Pinhas Oved and his daughters, Mary Harel (who is Oved's president), and Aviva Shitrit.
When Oved and Star Iron submitted their bids to the general contractors, Star Iron was sometimes a first-tier subcontractor and Oved its second-tier subcontractor, sometimes vice versa.
The MTA's demands defined “Oved” to include “plaintiff Oved and Associates Construction Services, Inc., its employees, agents, or representatives.” Star Iron's demands defined “Oved” to include “all persons acting on behalf of Oved ... (including agents, employees, representatives, investigators, consultants, and accountants) and/or any business entity owned or controlled, in whole or in part, by Oved....”
All section references are to the Code of Civil Procedure.
Oved objected to the entry of a judgment in favor of Kajima because Kajima had not joined in the motions of Star Iron and the MTA for terminating sanctions. But because Kajima's claims against Star Iron and the MTA were for indemnity and because the sureties' obligations were “dependent upon their principals' obligations,” the trial court found that the dismissal of Oved's action against Star Iron and the MTA meant there were no viable claims by Oved remaining. All parties sued by Oved in this action were subsequently awarded their costs of suit.
Oved's challenge to the trial court's ruling is belied by its admission to the court on February 25, 2004, with regard to a “little housekeeping” matter about whether Oved “messed with or altered the accounting records” on the hard drive in violation of the court's order to maintain the status quo, that “there were some other things on the computer which we thought should be protected by privilege logs and so forth and this court overruled us and the appellate court overruled us, but now they [Oved] have come to find out there were some other documents on there and yes, some of those documents have been created and deleted and manipulated
....” (Emphasis added.)
In its respondent's brief, Star Iron requests sanctions based on Oved's “grossly misleading appeal and incomplete record.” While we agree that the Appellant's Appendix was incomplete, that Oved's citations were vague and often nonexistent and that its brief was sometimes misleading (Cal. Rules of Court, rules 5.1, 14), we deny Star Iron's request for sanctions because we are awarding it its costs of appeal, including its attorneys' fees.
End of Document.