Filed 11/30/23 P. v. El-Zein CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff,

v.

ISMAEL RAGHEB EL-ZEIN,

Defendant;

RAGHEB ISMAIL EL-ZEIN et al.,

 Objectors and Appellants;

OLGA DEQUILLIEN,

Respondent.

 G061492

 (Super. Ct. No. 14HF1049)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Julian W. Bailey, Judge. Affirmed in part, reversed in part, and remanded with 

directions.

Gladych Law and John A. Gladych for Objector and Appellant Ragheb 

Ismail El-Zein.

John A. Gladych, in pro. per., for Objector and Appellant.

Coast Law Group, David A. Peck, Livia B. Beaudin and Amy C. Johnsgard

for Respondent.
2

Ragheb Ismail El-Zein and his attorney John A. Gladych (collectively 

appellants) appeal from the trial court’s postjudgment order imposing attorney fees and 

other expenses as sanctions pursuant to Code of Civil Procedure sections 128.5 and 

708.170 (all further undesignated statutory references are to this code). The sanctions 

were imposed after Gladych unilaterally cancelled a stipulated examination related to

restitution owed by El-Zein’s son. 

We conclude the trial court’s order did not comply with section 128.5’s 

demand for written details and that some of the attorney fees and all of the other expenses

imposed on El-Zein were not authorized by section 708.170. We reverse in part, affirm

in part, and remand for further proceedings.

FACTS

In 2013, El-Zein’s then 20-year-old son,

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drove an automobile after 

consuming alcohol and caused a collision that injured two victims, one of whom is Olga 

DeQuillien. The son pleaded guilty to two felony charges2and the trial court, as part of 

its jail sentence, ordered him to pay restitution to the victims totaling $532,434 plus

interest. 

In September 2021, counsel for the victims, Livia B. Beaudin, conducted a 

debtor’s examination of El-Zein’s son pursuant to the Enforcement of Judgments Law 

(Code Civ. Proc., § 680.010 et seq.; Pen. Code, § 1202.4, subd. (i) [covered restitution 

order “enforceable as if the order were a civil judgment”]). Subsequently, El-Zein was 

served with a trial court order to also undergo an examination (§ 708.120) and produce 

1

The son, Ismael (also known as Ismail) Ragheb El-Zein, is not a party to 

this appeal.

2

The charges were reckless driving causing one or more specified injuries 

(Veh. Code, § 23105, subd. (a); counts 1-3) and driving with an illegal blood-alcohol 

concentration while under the age of 21 years (Veh. Code, § 23136, subd. (a); count 4). 

The guilty pleas were to counts 1 and 4 pursuant to a plea bargain.
3

documents in response to an accompanying subpoena (§ 1985 et seq.). At all relevant 

times, Gladych represented him.

The initial examination was ordered for March 28, 2022 (all dates without 

mention of the year will refer to 2022), then continued to April 21 at 9:00 a.m. based on 

the parties’ stipulation, because Gladych requested a three-week delay, Beaudin agreed,

and the trial court approved the stipulation. In a nutshell, the sanctions in this case were 

imposed because on April 20 at 3:52 p.m., Gladych, through his paralegal, advised 

Beaudin he would not be appearing.

3

 

Beaudin appeared in the trial court and requested enforcement of the 

examination order. The court issued an order to show cause why sanctions should not be 

imposed for the nonappearance by appellants. Ultimately, the parties briefed the issue, 

completed an examination of El-Zein (on May 3), and the court entertained oral 

arguments on the sanctions issue. 

As noted, the trial court granted the request for sanctions pursuant to 

sections 128.5 (frivolous bad faith conduct) and 708.170 (failure to appear for

examination without good cause). Its order stated, among other things, that appellants 

were jointly liable to pay Beaudin’s law firm for DeQuillien’s “attorney[] fees and costs”

in the amount of $11,102.72. 

DISCUSSION

Appellants assert three grounds for reversal. They argue the sanctions 

order: (1) contains insufficient details under section 128.5; (2) awards fees not 

authorized by section 708.170; and (3) imposes sanctions that shock the conscience. 

Because there is merit to the first and second arguments, as discussed below, we conclude

3

The paralegal’s e-mail stated in its substantive entirety: “The Judgement 

[sic] Debtor Examination of our client, [El-Zein] needs to be rescheduled. [¶] Please 

contact me at your earliest convenience to reschedule the examination to a mutually 

convenient date. [¶] Thank you.”
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a partial reversal and remand for further proceedings is the appropriate disposition for 

this appeal.

I. Standards of Review and Governing Statutes

We generally review an exercise of statutory authority to impose monetary 

sanctions for abuse of discretion (Vidrio v. Hernandez (2009) 172 Cal.App.4th 1443, 

1452), but where material facts are undisputed, we review application of the authorizing 

statute de novo (Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 163). “‘Our 

fundamental task in construing a statute is to ascertain the intent of the lawmakers so as 

to effectuate the purpose of the statute. [Citation.]’ [Citation.] To accomplish this task, 

we look first to the words of the statute, because they ‘“generally provide the most 

reliable indicator of legislative intent.”’ [Citations.] Of course, the language of a specific 

section must be construed in the context of the larger statutory scheme of which it is a 

part. [Citations.]” (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 811.)

Sections 128.5 and 708.170 independently authorize trial courts to order the 

payment of attorney fees as sanctions. (§ 128.5, subd. (h) [“The liability imposed by this 

section is in addition to any other liability imposed by law for acts or omissions within 

the purview of this section”].) Section 708.170 does not authorize sanctions against an 

examinee’s counsel (see Eby v. Chaskin (1996) 47 Cal.App.4th 1045, 1049 [noting no 

provision for covered person’s counsel]), but section 128.5, subdivision (a), explicitly 

does. We begin our review there.

II. Analysis

A. Sanctions Imposed on Gladych

As noted, appellants argue the trial court’s order contains insufficient 

details under section 128.5. We agree on this point but disagree with appellants that there 

can be no basis whatsoever for sanctions under the statute.

Section 128.5’s requirements are demanding. Most relevant here, it 

explicitly requires that “[a]n order imposing [sanctions] shall be in writing and shall 
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recite in detail the action or tactic or circumstances justifying the order.” (§ 128.5, 

subd. (c), italics added.) Section 128.5 also specifies its sanctions must be based on 

“expenses . . . incurred . . . as a result of actions or tactics, made in bad faith, that are 

frivolous or solely intended to cause unnecessary delay” (§ 128.5, subd. (a)), with 

“‘[f]rivolous’” defined as “mean[ing] totally and completely without merit or for the sole 

purpose of harassing an opposing party” (§ 128.5, subd. (b)(2)).

The sanctions order signed by the trial court in this matter was based on a 

proposed written order Beaudin had submitted four days before oral arguments. The 

reporter’s transcript of the hearings on sanctions was not incorporated into the order. 

(See Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 

132 Cal.App.4th 1375, 1388 [“The conduct or circumstances justifying the imposition of 

sanctions may be satisfied by incorporating by reference ‘papers setting forth the 

conduct, circumstances, and legal arguments underlying the court’s conclusions’”].)

The order recited the following findings: “Notice was duly given and 

[appellants] were given an opportunity to be heard. [¶] There is good cause to order 

sanctions against El-Zein and Gladych and award [DeQuillien] fees and costs. [¶] ElZein failed to appear for his examination on April 21, 2022, after being properly served 

with an order for his appearance at the examination by a registered process server and 

such failure was without good ca[u]se. [¶] Gladych failed to appear at El-Zein’s 

scheduled examination. Such failure to appear as well as Gladych’s failure to timely 

notify both the [trial c]ourt and [Beaudin] of his failure, the circumstances of his failure, 

or his plan not to appear at the examination were frivolous actions made in bad faith 

which were solely intended to cause unnecessary delay and caused [DeQuillien] to incur 

attorney[] fees and costs for unnecessary legal service.”
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The written order does not pass muster under section 128.5 because of its

lack of factual details.4 A major benefit of the statute’s explicit detail requirement is to 

allow for meaningful appellate review of a trial court’s decision to impose sanctions

(Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 996 (Childs)) and the 

lack of detail here frustrates that purpose. Whether Gladych’s notice of nonappearance

was sufficiently dilatory for section 128.5 sanctions was a fact-sensitive issue. His afterthe-fact declaration proffered the following explanation: the day before the stipulated 

examination, he “had to change [his] previous travel plan to drive [his] wife’s 93-year-old 

uncle from Austin to [a medical center] in Houston[, Texas] . . . and [he] could not find a 

flight that would get [him] to Orange County in time for the examination,” nor was he 

able to secure local counsel to appear in his stead. 

On the face of the record, Gladych’s failure to let the trial court and 

opposing counsel know about his unavailability earlier than he did, by itself, does not

show the only reason for his conduct was to either cause unnecessary delay (§ 128.5, 

subd. (a)) or harass DeQuillien (§ 128.5, subd. (b)(2)), or that Gladych’s conduct was 

“totally and completely without merit” (ibid.). A good faith basis (even one showing

negligence) could have explained the failure. 

Given the way the order is explained, good faith negligence could have 

been the reason for the trial court’s imposition of sanctions on Gladych because, as 

quoted above, the order states Gladych’s “failure to appear as well as [his] failure to 

timely notify both the [c]ourt and [DeQuillien]’s counsel of his failure, the circumstances 

of his failure, or his plan not to appear at the examination were frivolous.” (Italics 

4

The parties dispute whether appellants forfeited their challenge to the trial 

court’s findings. The dispute is immaterial because even if appellants failed to properly 

preserve the issue, we would exercise our discretion in reviewing it, given the undisputed

material facts. (See Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1275-

1276, fn. 3.)
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added.) The possibility is problematic because negligence alone does not satisfy section 

128.5’s definition of frivolous.

It was undoubtedly the trial court’s prerogative to reject any or all of 

Gladych’s proffered explanation. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 

[“It is the exclusive function of the trier of fact to assess the credibility of witnesses and 

draw reasonable inferences from the evidence”].) But by section 128.5’s explicit terms,

the court was required to sufficiently explain why in writing. We cannot deem the lack 

of detail harmless because we cannot discern whether the court found Gladych’s conduct 

had been frivolous because he was negligent or acted in bad faith. (See Cooper v. 

Bettinger (2015) 242 Cal.App.4th 77, 90 [“‘a discretionary order based on an application 

of improper criteria or incorrect legal assumption is not an exercise of informed 

discretion and is subject to reversal’”].) 

Importantly, we also conclude the facts presented in the record do not 

compel a denial of section 128.5 sanctions. Contrary to Gladych’s position, the statute’s 

demands do not amount to a proposition that an attorney’s words must be taken at face 

value unless facially unreasonable.

5

 Gladych’s lack of proffered specifics that would 

have allowed a reasonable opportunity to cross-reference asserted facts was relevant for

the trial court’s decisionmaking. Accordingly, because we express no opinion on 

whether the facts compel a particular result, the order imposing sanctions on attorney 

Gladych is reversed and the matter remanded for further proceedings consistent with this 

opinion. (Childs, supra, 29 Cal.App.4th at p. 996; see People v. Barragan (2004) 32 

Cal.4th 236, 248 [discussing effect of law of the case doctrine on new proceeding after 

remand].) 

5 We explain this in response to Gladych’s characterization of his factual 

assertions in the trial court as having presented “[r]eal life events (that were fully 

explained without contradiction).”
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B. Sanctions Imposed on El-Zein

Next, we turn to the sanctions imposed on El-Zein. In contrast to the above

analysis, section 708.170 presented a less demanding rubric to justify sanctions.

6

 As 

quoted earlier, the statute’s touchstone was whether there was “good cause” for his 

failure to appear. (§ 708.170, subd. (a)(2); see In re Woodham (2001) 

95 Cal.App.4th 438, 446 [reviewing case law on other sanctions statutes, noting case law 

analysis for whether violation of valid court order was “‘without a valid excuse’”].) 

Appellants do not respond to DeQuillien’s argument that good cause was not shown in 

the trial court and we therefore conclude appellants concede the point. (Johnson v. 

English (1931) 113 Cal.App. 676, 677 [“[a]ppellant, by failing to file a reply brief, 

concedes that respondent’s position is unassailable”].) 

Even without the concession, we would affirm the trial court’s decision on

lack of good cause. The proffered reasons for the nonappearance that were personal to 

El-Zein was that he had been suffering from “extreme jetlag [sic].” As the court pointed

out, El-Zein only presented hearsay on the assertion, in the form of Gladych’s 

declaration. Even putting aside the form of the information presented, there was no 

specific information provided on the asserted jet lag, which bore on the credibility of the 

proffered excuse and El-Zein’s good cause burden, which had shifted to him after 

Beaudin’s prima facie showing. In other words, we agree with the court that good cause 

had not been shown.

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Based on the written order’s lack of detail, section 128.5 does not justify 

affirming the sanctions imposed on El-Zein.
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Finally, we also exercise our discretion to review whether section 708.170 

authorized the sanctions imposed in the amount of $11,102.72.

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 The issue is governed by 

the following sentence in the statute’s subdivision (a)(2): “If the person’s failure to 

appear is without good cause, the judgment creditor shall be awarded reasonable 

attorney’s fees incurred in the examination proceeding.” (§ 708.170, subd. (a)(2).) We 

interpret the words according to their usual and ordinary meaning. (Granberry v. Islay 

Investments (1995) 9 Cal.4th 738, 744.)

Doing so, we conclude three categories of sanctions awarded must be 

reversed: (1) costs totaling $1,092.72; (2) all attorney fees that predated the April 21 

nonappearance and would have been incurred as part of the May 3 examination of ElZein that did occur; and (3) all fees claimed for time spent pursuing sanctions. On the 

first category, there should not have been any award of costs because the statute only 

specifies fees in its authorization. (Cf. § 128.5, subd. (a) [distinguishing between general 

“expenses” and “attorney’s fees”]; see also generally § 685.070 [claimable “costs of 

enforcing a judgment”].) 

On the second category, Beaudin presented to the trial court two March 21 

time entries that read, respectively, “Exchange of e[-]mails with opposing counsel 

regarding continuance of [judgment debtor examination],” and, “Review and exchange 

e[-]mails with [c]ourt [c]lerk regarding continued [judgment debtor examination] and 

waiver of service regarding same.” These activities occurred because Beaudin stipulated 

to continue the initial examination date and would have occurred independent of the 

subsequent nonappearance. Given that an examination of El-Zein was actually 

completed after his nonappearance, we conclude the March 21 time was not “incurred in

7

DeQuillen contends appellants forfeited their argument that the trial court’s 

award of nonfee expenses as sanctions (e.g., a filing fee, travel costs for hearings, etc.) 

were not authorized by section 708.170 because they did not brief the issue in the trial 

court. Appellants do not dispute the contention.
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the examination proceeding” that was missed. (§ 708.170, subd. (a)(2).) DeQuillien

argues this interpretation of the subdivision is “nonsensical.” To the extent she is arguing

our plain meaning construction is prohibited because it leads to an absurd result (see 

California School Employees Assn. v. Governing Bd. of South Orange County 

Community College Dist. (2004) 124 Cal.App.4th 574, 588), we reject it. 

Similarly, on the third category, we conclude the plain meaning of section 

708.170, subdivision (a)(2), precludes fees for time spent pursuing sanctions. The 

Legislature has explicitly authorized such fees in section 128.5, subdivision (f)(1)(C) [“If 

warranted, the court may award to the party prevailing on the motion the reasonable 

expenses and attorney’s fees incurred in presenting or opposing the motion”], and did not 

so specify in the statute at issue. 

The remainder of the sanctions imposed on El-Zein, totaling $3,740,8are 

affirmed based on section 708.170, subdivision (a)(2), and appellants’ lack of objection 

to the claimed amounts in the trial court. Given our partial reversal and remand for 

further proceedings, we do not reach the merits of Beaudin’s request for attorney fees on 

appeal. 

8

The total is based on an April 20 time entry claiming $165, an April 21 

time entry claiming $1,100, and another April 21 time entry claiming $2,475.
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DISPOSITION

The postjudgment order of May 24, 2022, is affirmed in part, reversed in 

part, and remanded for further proceedings consistent with this opinion. In the interests 

of justice, no costs on appeal are awarded. (Cal. Rules of Court, rule 8.278(a)(5).)

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

SANCHEZ, J.