1

Filed 4/28/23 Wood v. Maleev 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

CHRISTOPHER WOOD et al.,

Plaintiffs and 

Respondents,

v.

DANIEL MALEEV et al.,

Defendants and 

Appellants.

 A166584

 (Alameda County

 Super. Ct. No. 

 RG19033563)

Defendants Daniel Maleev and Ivan Maleev appeal after 

entry of judgment in this dog-bite case, seeking review of orders 

(1) granting plaintiffs Christopher Wood’s and Carolin Sue 

Wood’s motion to compel further responses to various discovery 

requests and awarding the Woods $4,800 in sanctions against the 

Maleevs; and (2) denying the Maleevs’ request for attorney’s fees. 

Because the record provided by the Maleevs fails to demonstrate 

that either order constitutes reversible error, we affirm.

BACKGROUND

After an incident in which Daniel Maleev’s dog allegedly bit 

Christopher Wood at a dog park, Christopher and his wife, 

Carolin Sue Wood, sued Daniel Maleev and his father, Ivan, for 

negligence, strict liability, and loss of consortium. The Woods 
2

propounded 87 special interrogatories, 87 form interrogatories, 

and 62 requests for production of documents.1 On September 28, 

2020, the Maleevs responded solely with objections. The parties 

then exchanged letters and emails about the propriety of the 

Maleevs’ responses, at the end of which the Maleevs asked the 

Woods to withdraw the discovery requests and offered instead to 

provide sworn declarations and stipulate to undisputed facts. 

Pursuant to the trial court’s local rules in effect at the time, 

on November 12, 2020, the Woods requested an informal 

discovery conference with the court as a prelude to filing a motion 

to compel further responses. After various delays, the trial court 

held the informal discovery conference on March 1, 2021. The 

record does not contain a transcript or a substitute for a 

transcript describing what occurred at the conference. A minute 

order posted after the conference states, “The court conducts an 

informal discovery conference in chambers. Parties may file a 

discovery motion. This order is valid until 08/2021.” 

The parties again met and conferred after the discovery 

conference but were still unable to resolve their differences. On 

April 30, 2021, the Woods filed motions to compel the Maleevs to 

provide further responses to their discovery requests. The 

Maleevs opposed the motions by arguing, among other things, 

1 As we will explain, the Maleevs did not provide a complete 

record, so we have been unable to directly confirm various 

matters, such as the volume of discovery the Woods propounded 

or the nature of the Maleevs’ responses. For the purposes of this 

summary of the background of this case, we accept the Maleevs’ 

characterization of some of these facts.
3

that the motions were untimely. They also asked for an award of 

attorney’s fees under section 2023.020 of the Code of Civil 

Procedure because the Woods allegedly failed to meet and confer 

in good faith before filing the motions.2 

The trial court issued a tentative ruling granting the 

motions and imposing $7,200 in sanctions against the Maleevs 

and their counsel. The trial court tentatively ruled the motions 

were timely because they were filed before the August 2021 

deadline set in the minute order after the informal discovery 

conference. The Maleevs filed an ex parte application seeking 

leave to submit additional briefing regarding whether they 

received sufficient notice that the deadline was tolled by the 

minute order and whether they acted with substantial 

justification in believing it had not been tolled, which would have 

been grounds for denying the Woods’ request for sanctions. The 

trial court denied the application. 

After a hearing at which the trial court denied the Maleevs’ 

attempt to present the arguments they had wanted to make in 

supplemental briefing, in May 2021 the trial court issued orders 

granting the motions and imposing $4,800 in sanctions. 

In July 2021, the Maleevs moved to set aside the sanctions, 

arguing they were not on notice that the deadline had been 

tolled. The trial court denied the motion. 

2 Undesignated statutory references are to the Code of Civil 

Procedure. Undesignated citations to rules are to the California 

Rules of Court.
4

In December 2021, Christopher Wood accepted the 

Maleevs’ offer under section 998 and agreed to dismiss his 

negligence and strict liability claims in exchange for $10,000 plus 

litigation costs. Carolin Sue Wood then voluntarily dismissed the 

loss of consortium claim. 

In May 2022, the Maleevs moved for an award of attorney’s 

fees under section 2023.020 based on the Woods’ failure to meet 

and confer in good faith before filing their motions to compel. 

The trial court denied the motion. 

In October 2022, the trial court entered judgment pursuant 

to section 998. The Maleevs appealed the orders (1) denying their 

ex parte request to submit supplemental briefing, (2) granting 

the Woods’ motions to compel and imposing sanctions, 

(3) denying the Maleevs’ motion to set aside the sanctions, and 

(4) denying their motion for attorney’s fees. 

DISCUSSION

I. Timeliness and Due Process

The Maleevs first argue the order imposing monetary 

sanctions on them should be vacated because the Woods’ motions 

to compel further responses to the discovery requests were

untimely and the sanctions violated due process. 

The statutes authorizing the Woods’ motions to compel 

further discovery responses state that “[u]nless notice of [the 

motion to compel] is given within 45 days of the service of the 

verified response, or any supplemental verified response, or on or 

before any specific later date to which the propounding party and 

the responding party have agreed in writing, the propounding 
5

party waives any right to compel a further response to the” 

interrogatories or requests for production of documents. 

(§§ 2030.300, subd. (c); 2031.310, subd. (c).) The 45-day deadline 

in these statutes is “ ‘jurisdictional’ in the sense that it renders 

the court without authority to rule on motions to compel other 

than to deny them.” (Sexton v. Superior Court (1997) 

58 Cal.App.4th 1403, 1410.)

The trial court’s local rules at the time required parties to 

request an informal discovery conference pursuant to former 

section 2016.080. (Super. Ct. Alameda County, Local Rules, 

former rule 3.31 [eff. Jan. 1, 2019]; former § 2016.080, subd. (a), 

added by Stats. 2017, ch. 189, § 1, eff. Jan. 1, 2018, amended by 

Stats. 2018, ch. 92, § 44, eff. Jan. 1, 2019 & repealed Jan. 1, 

2023.) Former section 2016.080, subdivision (a) stated, “If an 

informal resolution is not reached by the parties, as described in 

Section 2016.040, the court may conduct an informal discovery 

conference upon request by a party or on the court’s own motion 

for the purpose of discussing discovery matters in dispute 

between the parties.” Subdivision (c)(2) of former section 

2016.080 further provided, “If an informal discovery conference is 

granted or ordered, the court may toll the deadline for filing a 

discovery motion or make any other appropriate discovery order.” 

The trial court’s local rules stated, “The emailed request for an 

IDC will toll the deadline for filing the discovery motion for the 

number of days between the request and issuance by the court of 

a subsequent order or, denial by operation of law.” (Super. Ct. 

Alameda County, Local Rules, former rule 3.31(4).)
6

The Maleevs contend that the 45-day period began to run 

on September 28, 2020, when they served their responses, and 

was four days from expiring when the Woods requested the 

informal discovery conference. They argue the local rules then 

tolled the deadline until March 1, 2021, when the trial court 

issued its order following the conference, and therefore expired 

long before the Woods filed their motions on April 30, 2021. 

The Maleevs concede that the trial court could toll the 

deadline after the discovery conference based on subdivision 

former section 2016.080, subdivision (c)(2). They also recognize 

that the post-discovery conference order stated, “Parties may file 

a discovery motion. This order is valid until 08/2021.” But the 

Maleevs argue this is insufficient for various reasons, asserting

that an order cannot impliedly toll the deadline, the “08/2021” 

deadline is vague because it does not say when in August 2021 

the deadline would expire, and the court did not mention 

anything about tolling during the informal discovery conference. 

They also contend that due process prevented the trial court from 

imposing sanctions until they had a chance to brief whether they 

acted with substantial justification in believing the deadline had 

not been tolled. 

The Maleevs’ arguments all depend on what transpired at 

the informal discovery conference, but they have not provided a 

sufficient record of what happened at the conference to 

demonstrate reversible error. Rule 8.120(b) provides three 

alternatives if an appellant “intends to raise any issue that 

requires consideration of the oral proceedings in the superior 
7

court . . . : [¶] (1) A reporter’s transcript under rule 8.130; [¶] (2) 

An agreed statement under rule 8.134; or [¶] (3) A settled 

statement under rule 8.137.” The Maleevs have failed to follow 

any of these alternatives. Given that the discovery conference 

was intended to be informal, the absence of a reporter’s transcript 

is not surprising, although the Maleevs do not say that it would 

have been impossible to bring a court reporter to the conference. 

But there is no apparent reason why the Maleevs could not have 

provided an agreed statement or a settled statement after 

noticing their appeal, either of which would have resolved the 

questions of what, exactly, the trial court stated at the discovery 

conference regarding tolling, and whether the Maleevs had 

sufficient notice of the tolling issue to satisfy due process.

“ ‘It is well settled, of course, that a party challenging a 

judgment [or order] has the burden of showing reversible error by 

an adequate record.’ [Citation.] ‘ “A judgment or order of the 

lower court is presumed correct.” ’ ” (Elena S. v. Kroutik (2016) 

247 Cal.App.4th 570, 574.) In the absence of a record of the oral 

proceedings, “ ‘ “any condition of facts consistent with the validity 

of the judgment will be presumed to have existed rather than one 

which would defeat it . . . .” ’ ” (Id. at p. 575.) We must therefore 

presume the trial court discussed tolling at the informal 

discovery conference, and we resolve any ambiguity or vagueness 

in the minute order in favor of the trial court’s action. (Ibid.

[absence of record of oral proceedings prevented appellant from 

rebutting presumption that he orally stipulated in trial court to 

having matter heard by commissioner].)
8

Apart from the presumptions favoring the trial court’s 

order, the record the Maleevs have provided gives specific reason 

to question their account of what transpired at the discovery 

conference. At the hearing on the Woods’ motions to compel, the 

Maleevs asserted that at the discovery conference the trial court 

had only instructed the clerk not to require another informal 

discovery conference in the case and had not mentioned tolling. 

The trial court interrupted to state that the Maleevs were 

“making an inaccurate record” of what took place at the discovery 

conference. The court did not describe the specific discussions 

that took place at the conference, but its remarks nonetheless 

indicate that it disagreed with the same assertions the Maleevs 

now make about what transpired. It was therefore essential for 

the Maleevs to supply a proper record of the oral proceedings.

If the parties could not stipulate to an agreed statement of 

the discussions at the discovery conference (rule 8.134), a settled 

statement would have sufficed. Briefly summarized, to create a 

settled statement, an appellant prepares a summary of the oral 

proceedings, and the respondent may respond. (Rule 8.137(d)–

(e).) The trial court reviews the summary and response, if any, 

and corrects or modifies the summary to make it accurate. (Rule 

8.137(f).) The parties then have a chance to prepare proposed 

modifications or objections. (Former rule 8.137(g).)3 

3 The Judicial Council slightly amended rule 8.137(g), 

effective April 1, 2023. (Judicial Council, Amendment to the 

California Rules of Court, rule 8.137, available at 

<https://jcc.legistar.com/View.ashx?M=F&ID=11695369&GUID=

21BD4926-FC5F-4A36-B5CE-2358586D6969> [as of April 28, 
9

Had the Maleevs followed this procedure, we would have a

record of the positions that they, the trial court, and likely the 

Woods took regarding what occurred during the informal 

discovery conference. If the Maleevs objected to whatever 

corrected statement the trial court issued, there may not have 

been a conclusive record of the discovery conference. But the 

process of creating the corrected statement would have required 

the trial court to detail specifically its view of what took place at 

the conference, which would defeat the need to infer facts 

supporting the trial court’s action and would facilitate our review. 

The absence of a settled statement, by contrast, prevents the 

Maleevs from rebutting the presumptions favoring the trial 

court’s ruling. (Elena S. v. Kroutik, supra, 247 Cal.App.4th at 

p. 575.)

II. Attorney’s fees

The Maleevs next argue the trial court erred in denying 

their request for attorney’s fees. The Maleevs’ request rested on 

section 2023.020, which states in full, “Notwithstanding the 

outcome of the particular discovery motion, the court shall 

impose a monetary sanction ordering that any party or attorney 

who fails to confer as required pay the reasonable expenses, 

including attorney’s fees, incurred by anyone as a result of that 

conduct.” The Maleevs contend they are entitled to attorney’s 

fees because the Woods did not make a reasonable and good faith 

2023].) The amendment is immaterial to this case, as the 

procedure for preparing a settled statement is the same under 

both versions of the rule.
10

attempt to resolve each of the issues raised in the Woods’ 

motions. 

The trial court did not award the Maleevs any attorney’s 

fees when it ruled on the Woods’ motions to compel, even though 

the Maleevs included a request with their opposition to those 

motions. It also denied the Maleevs’ motion for attorney’s fees at 

the end of the case. The Maleevs raise various reasons why they 

believe the latter ruling was error. We need not consider the 

merits of these arguments, however. The Maleevs must establish 

prejudice to obtain a reversal based on any error, meaning a 

reasonable probability of a more favorable result (People v. 

Watson (1956) 46 Cal.2d 818, 836), and the Maleevs have not 

provided an adequate record for this purpose. 

The Maleevs’ request for attorney’s fees was based on their 

contention that the Woods failed to discuss the objections the 

Maleevs raised in their discovery responses. But the Woods 

refused to meet and confer about each individual objection in the 

Maleevs’ responses because the Woods believed the objections 

were themselves not in good faith. The Woods pointed out that 

the Maleevs objected to every single discovery request. 

The Maleevs’ refusal to respond to any discovery request, 

including form interrogatories, itself suggests that the Woods 

have the better of this argument, but we need not ultimately 

answer that question. To determine whether the Maleevs have a 

reasonable probability of convincing the trial court that the 

Woods did not confer reasonably and in good faith, we would need 

to see the Woods’ discovery requests and the Maleevs’ responses 
11

in full. But the appellate record the Maleevs have provided 

contains only one set of special interrogatories and none of their

original responses. The only responses in the record are the 

Maleevs’ supplemental responses to the special interrogatories. 

The Maleevs served those responses after the Woods had filed 

their motions to compel and the responses consist entirely of 

cross-references to signed declarations by the Maleevs, so they 

prove nothing about the reasonableness of the Woods’ refusal to 

discuss each of the Maleevs’ original objections. The Woods’ 

motions, which are in the record, indicate that the Woods 

supported each motion with the required separate statement 

containing both the discovery requests and responses. (Rule 

3.1345(c).) But the Maleevs did not include those separate 

statements in the appendix they prepared for this appeal.

Because the Maleevs have not provided a record from 

which we could discern any prejudice in the denials of their 

request for attorney’s fees, much less a record demonstrating

such prejudice, they have not established grounds for reversal of 

the trial court’s denial of their request for attorney’s fees.

DISPOSITION

The judgment is affirmed.

BROWN, P. J.

WE CONCUR:

STREETER, J.

GOLDMAN, J.

Wood v. Maleev (A166584)