Filed 10/26/22 Cavanagh v. Cavanagh CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

PETER J. CAVANAGH,

 Plaintiff and Appellant,

v.

MICHAEL F. CAVANAGH, as 

Trustee, etc.,

 Defendant and Respondent.

2d Civil No. B310124

(Super. Ct. No. 56-2016-

00488427-PR-TR-OXN)

(Ventura County)

Respondent Michael F. Cavanagh (Trustee) is the trustee 

and one of seven beneficiaries of the Francois and Mary Carmel 

Cavanagh 1988 Trust (Trust). The deceased grantors of the 

Trust are Trustee’s parents. Trustee’s brother, Peter J. 

Cavanagh, also a beneficiary of the Trust, appeals in propria 

persona from a postjudgment order denying his motion for 

discovery sanctions. 

This is appellant’s second appeal in this matter. We 

granted appellant’s motion to take judicial notice of the record in 

the first appeal. In that appeal, we affirmed the trial court’s 
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judgment approving Trustee’s accounting and his actions on 

behalf of the Trust. (Cavanagh v. Cavanagh (April 18, 2022, 

B294140) [nonpub. opn.] (Cavanagh).) We also affirmed the trial 

court’s postjudgment order requiring appellant to pay Trustee’s 

reasonable expenses and costs of litigation, including attorney 

fees of $72,699, because appellant’s contest of Trustee’s account 

was without reasonable cause and in bad faith. 

We conclude that the trial court did not abuse its discretion 

in denying appellant’s postjudgment motion for discovery 

sanctions. Accordingly, we affirm.

First Appeal

The first appeal arose from the trial court’s order requiring 

Trustee to render an accounting of the Trust assets. In our prior 

opinion we noted that in the trial court appellant had claimed: 

“‘Trustee should be assessed exemplary damages’ because he has 

‘contumaciously obstructed [appellant’s] lawful right to 

information through bad-faith litigation and abuse of process. 

There is credible evidence he has vowed to deplete Trust assets 

doing so. . . .’” (Cavanagh, supra, slip opn. at p. 3.) “Trustee 

[should] be ‘surcharge[d]’ for “‘willful misconduct.’”” (Id. at p. 2.)

In our prior opinion we observed that, after a five-day court 

trial, the trial court had concluded: “‘[T]here is no evidence of 

malfeasance or misfeasance on the part of [Trustee] . . . . 

[Trustee] is in the position . . . of the aphorism that no good deed 

goes unpunished. He has been the subject of undeserved 

criticism from his brother, which he has borne with a largely stoic 

demeanor.’” (Cavanagh, supra, slip opn. at pp. 3-4.) “‘None of the 

improper conduct on the part of the trustee has been found to be 

true. There was not a reasonable basis before the petition was 

filed to believe they were true. . . . [Appellant] has availed 
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himself of the judicial system, and succeeded in causing the Trust 

to incur needless expense to the potential detriment of not only 

himself, but the other [six] beneficiaries. He has filed frivolous 

motions. He has attempted to sue counsel for the trust on 

specious and frivolous legal theories.’” (Id. at p. 4.)

Appellant’s Postjudgment Motion

The judgment appealed from in the first appeal, i.e., the 

trial court’s judgment approving Trustee’s accounting and 

conduct, was filed in September 2018. The postjudgment motion 

at issue here was filed more than two years later on October 29, 

2020, while the first appeal was still pending. In the motion 

appellant requested “discovery sanctions pursuant to CCP [Code 

of Civil Procedure] §§ 2023.010, 2023.030; . . . equitable remedies 

pursuant to non-statutory but inherent powers shown herein to 

be available to [the trial] Court; . . . remedies pursuant to PC 

[Probate Code] §§ 17200 et seq, 17211, 16440, 16441; . . . Orders 

to Show Cause re: contempt to [Trustee] and [Trustee’s counsel] 

pursuant to CCP §§ 2023.010, 2023.030(e), 1209(a), 128(a); Penal 

Code § 166(a) and . . . other remedies both statutory and nonstatutory as set forth more fully below.” 

Appellant alleged, “The grounds for the motion are that the 

trustee, [his] counsel and counsel’s law firm have individually 

and collaboratively engaged in pervasive litigation abuse, 

contumacious defiance of lawful authority; fraud and deceit upon 

the courts; reckless disregard for the truth, discovery abuse that 

includes spoliation and/or withholding of evidence, unmeritorious 

objections, stonewalling and failure to meet and confer; and with 

forays into criminality.” Appellant’s motion included a list of 32 

“remedies sought” for Trustee’s and counsel’s misconduct. 
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In support of the motion, appellant submitted a 148-page 

memorandum. Appellant requested that the trial court take 

judicial notice of his 94-page opening brief in the prior pending 

appeal. The trial court did not rule on the request. The opening 

brief in the prior appeal is included in the present appeal’s 

Clerk’s Transcript.1

Trustee’s Opposition to the Motion and

Appellant’s Reply to His Opposition 

In his opposition to appellant’s postjudgment motion, 

Trustee claimed that, because of the pending appeal, the trial

court lacked jurisdiction to rule on the motion except to the 

extent it requested discovery sanctions. Trustee relied on Code of 

Civil Procedure section 916, subdivision (a), which provides, 

“[T]he perfecting of an appeal stays proceedings in the trial court 

upon the judgment or order appealed from or upon the matters 

embraced therein or affected thereby . . . , but the trial court may 

proceed upon any other matter embraced in the action and not 

affected by the judgment or order.” “Under section 916, ‘the trial 

court is divested of’ subject matter jurisdiction over any matter 

embraced in or affected by the appeal during the pendency of that 

appeal. [Citation.] . . . Thus, ‘that court is without power to 

proceed further as to any matter embraced therein until the 

appeal is determined.’” (Varian Medical Systems, Inc. v. Delfino

(2005) 35 Cal.4th 180, 196-197.) “The rule prevents the trial 

court from rendering an appeal futile by altering the appealed 

judgment or order by conducting other proceedings that may 

affect it. [Citation.] [¶] However, the pendency of an appeal 

does not divest the trial court of jurisdiction to determine 

1 Trustee has requested that we take judicial notice of his 

respondent’s brief in the prior appeal. We grant the request. 
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ancillary or collateral matters which do not affect the judgment 

on appeal.” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.)

In the trial court Trustee argued, “Even a cursory review of 

the Motion . . . shows that [except for appellant’s request for 

discovery sanctions] this is all related to the orders already 

appealed from.” In his brief in the present appeal, Trustee claims

that, of the 32 “remedies sought” in appellant’s motion, the only 

“items that are not ‘embraced’ or ‘affected’ by the First Appeal are 

items 3 and 15,” which relate to discovery sanctions. 

In his reply to Trustee’s opposition to the motion, appellant 

said that “[w]hat he is seeking . . . is Discovery sanctions,” and 

“the automatic stay prescribed by CCP § 91[6] does not apply to 

Discovery sanctions or [the trial court’s] inherent power to 

remedy litigation abuse.” Appellant proceeded to discuss 

Trustee’s alleged spoliation of evidence. Appellant asserted, 

“[S]poliation is considered a particularly reprehensible form of 

Discovery abuse that is subject to a motion for sanctions even 

after rendition of judgment and while an appeal is pending.” (See 

Department of Forestry & Fire Protection v. Howell (2017) 18 

Cal.App.5th 154, 197, disapproved on another ground in 

Presbyterian Camp & Conference Centers, Inc. v. Superior Court

(2021) 12 Cal.5th 493, 516, fn. 17 [postjudgment motion for 

discovery sanctions against Cal Fire “is collateral to the appeal 

because it is based on Cal Fire’s alleged prejudgment discovery 

abuses, for which sanctions proceedings could have occurred 

regardless of the outcome of the appeal of the judgment”]; Day v.

Collingwood (2006) 144 Cal.App.4th 1116, 1125 [“a trial court’s 

consideration of a postjudgment sanctions request does not 

undermine the finality of the merits of the judgment”].)
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We construe appellant’s reply as narrowing his 

postjudgment motion to a request for discovery sanctions based 

primarily on Trustee’s spoliation of evidence. “Spoliation of 

evidence means the destruction or significant alteration of 

evidence or the failure to preserve evidence for another’s use in 

pending or future litigation.” (Williams v. Russ (2008) 167 

Cal.App.4th 1215, 1223 (Williams).) 

Appellant’s Memorandum in Support of Discovery Sanctions

In his memorandum in support of his request for discovery 

sanctions, appellant contended: “After trial [he] discovered that 

in April 2018, [Trustee’s] counsel had made contemporaneous 

entries in an official business record (timesheet) that [counsel] 

had deleted approximately 372 computer documents that he 

knew [appellant] had Requested and that [Trustee] had promised 

to produce in his Response. They were not produced and have 

never been, produced. . . . Upon being confronted with 

allegations of spoliation, counsel swore a new representation that 

he did not delete documents . . . .” 

Trustee’s counsel declared under penalty of perjury: “There 

were no emails that were destroyed. There were no documents 

that were destroyed. There were none that were deleted from 

servers. I received documents to be reviewed for production. As I 

went through that process I decided which documents were not 

relevant or not responsive and I ‘deleted’ those from the 

documents that we were going to provide electronically. In 

addition, I did review matters tak[ing] into consideration 

attorney-client privilege and as to those matters which I decided 

were covered by attorney client privilege, I also removed those 

from the documents which we were going to produce. There was 
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no loss of any records and there was no destruction of any 

records.” 

Appellant noted: “At a hearing on February 18, 2020 before 

the trial judge, [Trustee’s] counsel made this statement: [‘]I was 

reviewing emails and as I reviewed them I deleted ones that were 

not relevant. . . . My client had provided me with a copy of all 

emails. They were deleted from what was to be presented to 

[appellant]. That was not felonious; that was not a destruction of 

records; that was nothing other than the ordinary course of 

deciding what was relevant to [appellant’s] request and what was 

not.[’]” 

Appellant alleged: “[O]ut of 466 documents [Trustee] 

promised to produce, at least 371 were spoliated and 

approximately 74 emails were withheld. Counsel offers no 

explanation as to why the uncontroverted emails were withheld 

notwithstanding two new explanations.” “It must be presumed 

that there is more undiscovered spoliation.” 

Trial Court’s Ruling on Motion

The trial court denied appellant’s postjudgment motion in a 

brief order: “‘The court finds that the motion either fails to 

demonstrate any ground for relief or raises issues that were 

previously determined against the moving party at trial and posttrial, which rulings are now either final or the subject of an 

appeal.’” 

Appellant contends that the trial court’s order shows it

“summarily denied [his] motion on the implied grounds it lacked 

jurisdiction.” We disagree. The motion’s failure “to demonstrate 

any ground for relief” did not result in a lack of subject matter or 

personal jurisdiction. The trial court impliedly found that 
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appellant had failed to present evidence warranting the 

imposition of discovery sanctions.

Appellant Has Not Shown that the Trial

Court Lacked Fundamental Jurisdiction

In our opinion in the first appeal, we noted that appellant’s 

petition to compel Trustee to render an accounting had been filed 

in the Solano County Superior Court. “[T]he Solano County 

Superior Court granted Trustee’s motion to change the venue to 

Ventura County for the convenience of witnesses.” (Cavanagh, 

supra, slip opn. at p. 2.) 

In his opening brief in the present appeal, appellant claims 

that his “motion properly raises [the Ventura County Superior 

Court’s] jurisdictional infirmity over [him] on grounds proper 

venue is and always has been, Solano County. [The Ventura 

County Superior Court] must prove jurisdiction to exist and it 

must do so as a threshold issue; before it may proceed. 

Nevertheless, [it] has not done so.” Appellant emphasized the 

jurisdictional issue in his oral argument before this court. 

“Courts refer to jurisdiction over the parties and subject 

matter as ‘fundamental jurisdiction,’ and where this is lacking 

there is an entire absence of power to hear or determine the case. 

[Citation.] ‘Judgments or orders by a court that lacks jurisdiction 

in this fundamental sense are void. [Citation.] Objection may 

be raised at any time . . . .’” (Airlines Reporting Corp. v. Renda

(2009) 177 Cal.App.4th 14, 19-20.)

Appellant is contending that the Ventura County Superior 

Court lacked fundamental jurisdiction because Solano County 

was the proper venue. “In contrast to jurisdiction, venue ‘is the 

place of trial—a particular county of the state.’ [Citations.] As a 

general rule, the issue of venue ‘does not involve a question of 
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“fundamental” or “subject matter” jurisdiction over a proceeding. 

“. . . Thus, venue is not jurisdictional in the fundamental sense; 

and, both in civil and criminal cases, a change of venue from the 

superior court of one county to the same court in another county 

does not affect its jurisdiction over the subject matter of the 

cause.” [Citations.]’” (California Gun Rights Foundation v.

Superior Court (2020) 49 Cal.App.5th 777, 788.) Accordingly, the 

Ventura County Superior Court did not lack jurisdiction in the 

fundamental sense.

The Trial Court Did Not Abuse Its Discretion

In Denying Appellant’s Motion for Discovery Sanctions

“‘“The power to impose discovery sanctions is a broad 

discretion subject to reversal only for arbitrary, capricious, or 

whimsical action. [Citations.] Only two facts are absolutely 

prerequisite to imposition of the sanction: (1) there must be a 

failure to comply . . . and (2) the failure must be wilful [citation].” 

[Citation.]’” (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 

1545.)

The burden is on appellant to establish an abuse of 

discretion. (In re Marriage of Economou (1990) 224 Cal.App.3d 

1466, 1476.) Appellant failed to carry his burden. The court was 

entitled to believe Trustee’s counsel’s statements that he did not 

spoliate or deliberately withhold any relevant evidence. In 

reviewing a trial court’s order under the abuse of discretion 

standard, we “resolve all evidentiary conflicts most favorably to 

the trial court's ruling. . . . It is appellant’s burden to 

affirmatively demonstrate error and where the evidence is in 

conflict, we will affirm the trial court’s findings. [Citation.] We 

presume the trial court’s order was correct and indulge all 
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presumptions and intendments in its favor on matters as to 

which it is silent.” (Williams, supra, 167 Cal.App.4th at p. 1224.) 

Disposition

The order denying appellant’s postjudgment motion for 

discovery sanctions is affirmed. Trustee shall recover his costs on 

appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
Roger L. Lund, Judge

Superior Court County of Ventura

______________________________

Peter J. Cavanagh, in pro. per., for Plaintiff and Appellant.

Thomas E. Olson, for Defendant and Respondent.