1

Filed 11/14/23 UBO Holdings v. Oldham 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

UBO HOLDINGS,

Plaintiff and Respondent,

v.

ANDREW OLDHAM et al.

Defendants and Appellants.

 A165914

 (San Mateo County 

 Super. Ct. No. 21-CIV-01962)

Andrew Oldham, Jennifer Siem, and Oldham Professional Group (OPG; 

collectively, defendants) appeal an order awarding plaintiff UBO Holdings

(UBO)1 $17,333 in sanctions against defendants’ counsel, Brewer Offord & 

Pedersen LLP (Brewer), after UBO partially succeeded on eight motions to 

compel discovery. Defendants contend Brewer acted with substantial 

justification in withholding discovery, the amount of sanctions was arbitrary 

and punitive, and there was no finding Brewer advised them to engage in 

misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (a); 

undesignated statutory references are to this code.) We disagree and thus 

affirm.

1 Plaintiff Michael Szelenyi assigned to UBO all his rights, title, and 

interest in the sanctions award, and we subsequently substituted UBO as 

respondent in this appeal. For clarity, we refer to Szelenyi as the plaintiff. 
2

BACKGROUND

reVIS, Inc. (reVIS), a real estate consultant corporation, was formed in 

2019 to provide lead generation, marketing, branding, and promotional 

services to the real estate industry. Szelenyi was its chief executive officer

and a director, Oldham was the chief financial officer, and Siem was the 

corporate secretary. In addition, Oldham and Siem respectively served as

corporate secretary and chief executive officer of OPG. According to Szelenyi, 

OPG orally agreed in 2019 to pay reVIS 100 percent of gross commission 

income from any real estate transactions closed by Oldham or Siem; 50

percent of the gross commission income from any real estate transactions 

closed by any other OPG real estate agent for which reVIS provided a lead; 

and 50 percent of the gross commission income from any real estate 

transaction closed by any real estate agent that joined OPG after reVIS was 

formed.

According to Szelenyi, however, Oldham and Siem excluded from their 

gross commission income calculations certain payments Siem was required to 

make to a third party, and they neglected duties owed to reVIS. Moreover, 

Oldham implemented a revised agreement reducing the commission due to 

reVIS for sales by Siem or Oldham to 25 percent; reduced the commission due

to reVIS for sales by all other OPG real estate agents arising from a reVIS 

lead to 25 percent; and eliminated commission for sales by real estate agents 

hired after reVIS was formed. This occurred even though no one from reVIS 

signed the revised agreement. And Oldham and Siem took control of all the 

management, databases, and email software services used by reVIS.

Szelenyi filed a shareholder derivative lawsuit on behalf of reVIS, 

against defendants. Szelenyi alleged defendants breached an oral contract 
3

for reVIS’s referral fee and breached their fiduciary duties when a revised, 

written contract was formed with new terms added to the agreement.

In October 2021, Szelenyi served defendants with requests for 

production of documents, requests for admission, form interrogatories, and 

special interrogatories. Defendants responded on December 9, after Szelenyi

agreed to a series of extensions. On January 13, 2022, Szelenyi sent 

defendants a letter identifying concerns with the discovery responses and 

requesting supplemental responses by January 19. Brewer agreed to 

supplement certain limited responses, but it did not provide a date by which 

the responses would be produced. Brewer also refused to extend Szelenyi’s 

deadline to file motions to compel with respect to responses still in dispute or 

responses they agreed to supplement. And when defendants served 

supplemental responses, they did not provide responses to certain agreedupon requests for production. An informal discovery conference in February 

with a court commissioner failed to resolve all the discovery issues in dispute.

In March 2022, Szelenyi filed eight motions to compel further responses 

to a total of 43 requests for production and 55 special interrogatories. The 

documents and information sought included real estate transactions closed by 

OPG agents; monetary transfers between and among defendants and 

Szelenyi; reVIS’s and OPG’s finances, corporate structure, business 

operations, and employees; and communications relating to Szelenyi.2

2 Szelenyi sought an order compelling Oldham to provide codecompliant responses to the following requests for production: all documents 

relating to Oldham’s payments to reVIS (No. 4); documents related to 

payments Oldham made or received from OPG (Nos. 6 & 7); documents 

relating to real estate transactions Oldham closed (Nos. 8 & 9); all 

communications regarding reVIS (No. 24); documents related to OPG’s 

ownership and government submissions (Nos. 31, 32 & 34); and reVIS’s 

financial statements (No. 35).
4

According to Szelenyi, rather than providing appropriate responses to the

requests for production — that they would comply, lacked the ability to 

comply, or objected to the demand — defendants responded they would 

ascertain whether they possessed responsive documents. (§ 2031.210, subd. 

(a).) Brewer did not provide verified supplemental responses. Szelenyi also 

argued defendants refused to respond to interrogatories within the 

permissible scope of discovery, provided terse responses rather than detailed 

information, and refused to provide any information regarding real estate 

transactions closed by OPG real estate agents, even though that information 

was critical to the case. Szelenyi requested $25,980 in monetary sanctions

against defendants and Brewer.

Several months after Szelenyi filed his motions to compel — but before 

the hearing — defendants provided supplemental responses to 18 requests 

for production and 29 interrogatories.

3 Defendants thereafter filed 

For OPG, Szelenyi sought additional responses for the following 

requests for production: OPG payments made to or received from reVIS (Nos. 

4 & 5); real estate transactions closed by OPG (Nos. 6, 7, 9 & 10); documents 

related to OPG’s board of directors and shareholders (Nos. 11, 12 & 13); OPG 

payments made to or received from Siem and Oldham (Nos. 14 & 22–25); and 

communications referring to or relating to Szelenyi (No. 27).

For reVIS, Szelenyi sought additional responses for the following 

requests for production: payments reVIS made to or received from OPG, or 

made to Siem or Szelenyi (Nos. 4, 5, 6, 8 & 9); reVIS’s financial statements

(No. 18); and documents referring or relating to Szelenyi (No. 28).

In terms of interrogatories, Szelenyi sought information from reVIS 

regarding reVIS’s monetary transfers made to OPG (Nos. 1–3); real estate 

transactions closed by OPG agents (Nos. 5–8), reVIS’s shareholders, directors 

and service providers (Nos. 9–12, 14 & 16); and reVIS’s bank accounts (No.

17). He sought similar additional interrogatory responses from Siem.

3 This included providing all communications between Oldham and 

Siem or any person referring to reVIS, and all documents regarding Oldham 

or Siem’s ownership of OPG shares and documents relating to OPG 

shareholders. Additional interrogatory responses included descriptions of the 
5

oppositions to the motions to compel, arguing many of the requests were moot

based on the recently produced documents and responses, and the remaining 

requests were irrelevant, overbroad, burdensome, and infringed on their 

rights to privacy. For example, they argued a request seeking any and all 

documents related to real estate transactions closed by defendants, payments 

to OPG by the remaining defendants, and commission paid by OPG to 

defendants’ broker from September 1, 2019 to present were overbroad, 

unlimited as to time and scope, and not reasonably particularized.

The trial court partially granted Szelenyi’s motions.4 It rejected 20

requests for production, noting the requested documents were not reasonably 

particularized as to each category. For example, the court stated, requesting 

documents “ ‘relating to or referring to’ ” various general matters was not a 

reasonably particularized demand. The court did, however, grant one 

request — concluding OPG’s objections were meritless — and partially 

granted three requests — requiring OPG to provide agendas and meeting 

minutes, as well as emails regarding Szelenyi, because doing so was not

unduly burdensome. The court limited documents to be produced to 

September 1, 2019 to November 30, 2020 without prejudice to Szelenyi 

requesting additional responsive documents after that time period if such 

documents are necessary.

In addition, the trial court determined defendants’ supplemental 

responses to 24 interrogatories rendered moot Szelenyi’s motion on those 

business relationships between all defendants, identities of officers and 

employees of OPG from September 1, 2019 to present, identification of all 

positions Oldham and Siem held at reVIS, and identification of persons who 

provided services to OPG or reVIS.

4 The court issued a tentative ruling that it further refined in a final 

order.
6

particular requests. Although the court denied several of Szelenyi’s 

interrogatory requests as unreasonably overbroad or because defendants had 

fully answered the interrogatories, it ultimately granted Szelenyi’s request 

for further responses to 18 interrogatories.

5 The court imposed sanctions on 

Brewer, explaining the motions to compel were occasioned by counsel’s

actions, not those of defendants. But because Szelenyi was only partially 

successful, the court reduced the sanction amount to $17,333.

DISCUSSION

Defendants argue the trial court abused its discretion by imposing

monetary sanctions on their counsel. We disagree — the record demonstrates 

the court’s decision was not arbitrary, capricious, or whimsical. (Kwan 

Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 73 [abuse of 

discretion standard of review for discovery sanctions orders].)

Courts may impose a range of penalties for “misuse of the discovery 

process,” including monetary sanctions. (§ 2023.030; Cedars–Sinai Medical 

Center v. Superior Court (1998) 18 Cal.4th 1, 12.) Relevant here, misuse of 

5 Among other things, those interrogatories include requiring 

defendants to identify all monetary transfers they have received from reVIS, 

and for reVIS to identify all monetary transfers it made to OPG, by loan 

amount, date, lender, borrower, and terms. In addition, defendants were 

ordered to identify all real estate transactions closed by OPG, Oldham, or 

Siem, the monetary transfers made to reVIS from those transactions; all 

monetary transfers OPG, Oldham, or Siem made to a third party relating to 

those transactions; all monetary transfers received by Oldham or Siem from 

OPG relating to those transactions; and all bank accounts maintained by 

OPG. Siem, OPG, and reVIS were ordered to provide reasons for each 

monetary transfer received from each other. OPG was ordered to identify its 

present and former bank accounts by name of financial institution, account 

number, the date the account was opened, date the account closed, and if 

applicable, the identity of each person authorized to sign checks or access the 

account.
7

the discovery process includes unsuccessfully opposing without substantial 

justification a motion to compel further discovery responses. (§ 2023.010, 

subds. (e), (h).) Courts must impose monetary sanctions against the party, 

person, or attorney who unsuccessfully opposes the motion to compel further 

responses unless the party acted with substantial justification or there were 

other circumstances that make the sanction unjust. (City of Los Angeles v. 

PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 498.)

I.

Defendants contend their counsel acted with substantial justification in 

objecting to Szelenyi’s discovery requests. Specifically, Brewer opposed 

various requests as not reasonably particularized or limited in time or scope, 

thus posing an undue burden. (§ 2031.030, subd. (c)(1).) According to 

defendants, the trial court ultimately agreed because it denied all but four of 

Szelenyi’s requests for production as not being reasonably particularized.

It further limited the scope of Szelenyi’s interrogatories to the time period of 

September 2019 to November 2020, rather than September 2019 to the 

present. The court, defendants argue, denied 90 percent of Szelenyi’s

requests for production and 53 percent of Szelenyi’s interrogatories, thus 

demonstrating their objections were substantially justified — “clearly 

reasonable because [they were] well grounded in both law and fact” — even 

though the court did not make that express finding. (Doe v. United States 

Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.) Not so. 

As a preliminary matter, we infer the trial court made all findings 

necessary to support its order — as relevant here, that defendants acted 

without substantial justification in opposing the discovery requests —

provided those findings are supported by the record. (Reedy v. Bussell (2007) 

148 Cal.App.4th 1272, 1292.) Moreover, there is no requirement the court 
8

make an explicit finding the defendants did not act with substantial 

justification. (Parker v. Wolters Kluwer United States, Inc. (2007) 

149 Cal.App.4th 285, 294.) “[T]his is implied in the order awarding 

sanctions.” (Ibid.) Thus, we infer the finding that defendants did not act 

with substantial justification in the absence of an express finding on that 

point. 

More importantly, the trial court’s ultimate denial of a portion of 

Szelenyi’s discovery requests does not demonstrate that defendants’

objections were substantially justified. (Doe v. United States Swimming, Inc., 

supra, 200 Cal.App.4th at p. 1435 [party opposing sanctions bears the burden 

demonstrating substantial justification]; Mattco Forge, Inc. v. Arthur Young 

& Co. (1990) 223 Cal.App.3d 1429, 1437.) Courts may impose sanctions on 

motions to compel that are partially granted. (Mattco Forge, at p. 1437.) 

Here, Szelenyi moved to compel responses to 43 requests for production and 

55 special interrogatories — a total of 98 discovery requests. For 69 of these 

requests, Szelenyi obtained the sought discovery — 47 requests for which 

defendants produced supplemental responses after Szelenyi filed his motions 

to compel, and 18 interrogatories and four requests for production the court 

granted — constituting approximately 70 percent of the discovery requests. 

Although defendants use different percentages, the relevant number here is 

the total number of requests where Szelenyi succeeded. Thus, defendants are 

required to demonstrate they had substantial justification in opposing those

69 requests, not the number of discovery requests the court ultimately 

rejected. (Ibid.) Defendants cannot. 

To begin, only after Szelenyi filed a motion to compel and several 

months had passed, defendants served further responses to 18 of Szelenyi’s

requests for production and 29 of Szelenyi’s special interrogatories, a total of 
9

47 requests. Indeed, the court expressly stated defendants’ supplemental 

interrogatory responses rendered Szelenyi’s requests moot. Defendants’ 

disclosure of additional documents and responses just before filing their 

opposition to the motion to compel does not render the responses 

substantially justified. Rather, courts may award sanctions even when

requested discovery was provided to the moving party after a motion to 

compel was filed. (Cal. Rules of Court, rule 3.1348(a); Sauer v. Superior 

Court (1987) 195 Cal.App.3d 213, 230 [“ ‘Belated compliance with discovery 

orders does not preclude the imposition of sanctions . . . Last-minute tender of 

documents does not cure the prejudice to opponents nor does it restore to 

other litigants on a crowded docket the opportunity to use the courts’ ”].)

For the remaining 51 discovery requests, the trial court granted 18 of 

Szelenyi’s interrogatories. The court could rationally conclude defendants’ 

relevance objection to interrogatories — those seeking information regarding 

real estate transactions closed by OPG and the resulting monetary transfers 

OPG made to reVIS — lacked justification. (Foothill Properties v. 

Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542, 1557.) Szelenyi 

alleged defendants did not pay all required commissions. Information 

regarding closed real estate transactions and resulting monetary transactions

was relevant. (Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 

694, 712, fn. 8 [for discovery, information is relevant if it reasonably assists a 

party in evaluating the case, facilitating settlement or preparing for trial].) 

That the court ultimately limited the time frame for those interrogatories to a 

period ending in November 2020 does not demonstrate Szelenyi’s request was 

overbroad, as defendants contend. The court expressly stated the time 

limitation did not indicate the information beyond November 2020 was not 
10

discoverable. Instead, the court acknowledged Szelenyi could seek that 

information later in the litigation.

Similarly, the trial court partially granted Szelenyi’s requests for 

production — requiring defendants to produce agendas and meeting minutes 

regarding OPG’s directors and shareholders, payments OPG made or received 

from Oldham and Siem, and OPG communications referring to or relating to 

Szelenyi. The court determined defendants’ objections to one request for 

production were meritless. It rejected another because defendants had not 

persuasively demonstrated that searching through 34 months of emails for 

communications regarding Szelenyi would be unduly burdensome. Rather 

than demonstrating those objections were substantially justified, defendants 

focus on the requests for production the court denied. To repeat, that is not 

the relevant inquiry. (Mattco Forge, Inc. v. Arthur Young & Co., supra,

223 Cal.App.3d at p. 1437.) Defendants fail to demonstrate they acted with 

substantial justification as to the discovery requests the court granted. 

II.

Defendants contend the sanctions amount was unreasonable, arbitrary, 

and punitive. We disagree. 

Monetary sanctions for misuse of discovery cannot be imposed as 

punishment. (City of Los Angeles v. PricewaterhouseCoopers, LLC, supra, 

84 Cal.App.5th at p. 499.) They must be compensatory and not exceed 

reasonable expenses incurred in bringing the motion to compel, such as

attorney fees, filing fees, referee fees, and other costs. (§ 2023.030, subd. (a); 

Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 262 (Ghanooni).)

Nothing in the record here indicates the expenses incurred were 

unreasonable or punitive.
11

In support of the motion for sanctions, Szelenyi’s counsel filed a 

declaration summarizing work on the motions to compel. An associate 

attorney at the firm spent 45 hours drafting and revising the eight motions to 

compel, the supporting papers, as well as drafting a declaration detailing the 

discovery exchanges with Brewer. Based on the Fitzpatrick Matrix and 

locality adjustments, the associate counsel with 17 years of experience 

charged $500 per hour for a total of $22,500. (Syers Properties III, Inc. v. 

Rankin (2014) 226 Cal.App.4th 691, 702 [hourly rates were supported by 

adjusted billing matrix].) A partner at the firm spent four hours drafting and

revising the motions to compel and the supporting papers. At an hourly rate 

of $750, the partner charged a total of $3000. With the locality adjustments, 

the rates charged were actually below those for attorneys with the same 

years of experience in the San Francisco Bay Area. And rather than 

awarding Szelenyi’s counsel the full requested fees, the trial court reduced 

the amount to $17,333, “representing the partial success of the motions.” 

Given evidence that Szelenyi’s counsel’s rates were less than others in the 

San Francisco Bay Area, the amount awarded is less than what could have 

been awarded. 

Defendants argue we must vacate the sanctions award because the 

expenses incurred were unreasonable based on the attorneys’ purportedly 

unreasonable hourly rates. And according to defendants, it cannot be 

reasonably true Szelenyi’s counsel spent 45 hours on the motions —

Szelenyi’s counsel, so the argument goes, merely submitted eight nearly 

identical motions to compel along with eight nearly identical supporting 

declarations. This ignores the standard of review — we do not reweigh 

evidence when reviewing attorney fee awards. (Weber v. Langholz (1995) 

39 Cal.App.4th 1578, 1587.) While defendants submitted a declaration 
12

opposing sanctions below, it merely detailed communications between 

opposing counsel regarding service of discovery responses. They failed to 

submit a counterdeclaration disputing the reasonableness of the billing rates 

or hours expended. (Ghanooni, supra, 20 Cal.App.4th at p. 262; PLCM 

Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [an experienced trial 

judge is best situated to determine the value of professional services rendered 

in court].) In those circumstances, “the court’s finding as to reasonable 

expenses is supported by the uncontradicted evidence.” (Ghanooni, at 

p. 262.) 

Defendants’ assertion that the amount awarded was arbitrary and 

punitive because the trial court failed to provide any specific calculations or 

written findings is meritless. The “discovery statutes do not require the 

court’s order to ‘recite in detail’ the circumstances justifying the award” or 

“make findings at all.” (Ghanooni, supra, 20 Cal.App.4th at p. 261.) In any 

event, the court stated the $17,333 in sanctions reflected defendants’ success 

in opposing approximately one-third of the motions to compel. This number 

is properly reflected in the record. Szelenyi’s motions to compel sought 

responses on 98 discovery requests. Szelenyi prevailed on 69 requests — 47 

requests for which defendants served further responses after the motion to 

compel was filed, and 22 requests the court granted in whole or in part —

constituting 70 percent of the motion to compel. It is reasonable to conclude 

the court further reduced that number because it partially denied some of the 

22 requests based on objections that the requests were not reasonably 

particularized or overly burdensome. (Vo v. Las Virgenes Municipal Water 

Dist. (2000) 79 Cal.App.4th 440, 447 [presumption order awarding fees is 

correct on appeal].) In total, Szelenyi was successful on approximately twothirds of his motions to compel. 
13

To the extent defendants suggest this number was punitive because the 

court indicated the sanctions award could increase if they reargued the 

tentative ruling, we disagree. Reasonable expenses includes the time counsel 

spends researching and preparing the motion to compel, as well as time spent 

in court in connection with the motion. (Mattco Forge, Inc. v. Arthur Young & 

Co., supra, 223 Cal.App.3d at p. 1438 [attorney time spent in court 

responding to arguments considered reasonable expenses].) Rearguing the 

sanctions ruling is “clearly part and parcel of the underlying discovery 

dispute” that could increase Szelenyi’s attorney fees. (Ibid.) Reasonably 

viewed, the court’s statement simply informed defendants of this possibility. 

The amount awarded was not an abuse of discretion.

III.

Defendants argue the trial court improperly imposed monetary 

sanctions against their counsel after finding Szelenyi’s motions to compel 

were necessitated by counsel, not the client. We disagree. 

Courts may issue monetary sanctions against any attorney advising a 

party to engage in the misuse of the discovery process. (§ 2023.030, 

subd. (a).) To reverse, the attorneys must demonstrate they had not advised 

the client to engage in conduct resulting in sanctions. (Ghanooni, supra,

20 Cal.App.4th at p. 261.) Brewer fails to do so. Szelenyi sought sanctions 

against both defendants and Brewer. The declaration Brewer submitted in 

opposition contained no evidence or argument addressing whether

defendants’ refusal to produce responses to certain discovery requests was 

not based on the advice of their attorneys. (Ibid.) On this record, the court 
14

did not abuse its discretion in concluding the discovery misuse was driven by 

counsel rather than their clients.6

DISPOSITION

The order imposing monetary sanctions is affirmed. Szelenyi is 

entitled to recover costs on appeal.

6 While this appeal was pending, Szelenyi filed a motion to sanction 

Brewer for pursuing a frivolous appeal. (Cal. Rules of Court, rule 

8.276(a)(1).) We deny the request. An appeal is frivolous “only when it is 

prosecuted for an improper motive—to harass the respondent or delay the 

effect of an adverse judgment—or when it indisputably has no merit—when 

any reasonable attorney would agree that the appeal is totally and 

completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 

650.) Although we affirm the trial court’s sanctions order, there is no 

indication the appeal is frivolous.
15

_________________________

Rodríguez, J.

WE CONCUR:

_________________________

Tucher, P. J.

_________________________

Petrou, J.

A165914