Filed 1/5/99

- C O P Y -

COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

THE PEOPLE ex rel. 3 Civil C022579

STATE AIR RESOURCES BOARD,

(Super.Ct.No. 18490)

Plaintiff and Respondent,

v.

RICHARD E. WILMSHURST et al.,

Defendants and Appellants.

Appeal from a judgment after trial of the Calaveras County Superior Court, Judge Richard Tuttle presiding. Affirmed.

Richard E. Wilmshurst, in propria persona, for Defendant and Appellant.

Harold C. Wright, Pahl & Gossenlin for Defendant and Appellant Forty-Niner Sierra Resources, Inc.

Daniel E. Lungren, Attorney General, Charles W. Getz, Assistant Attorney General, Richard M. Thalhammer, Supervising Deputy Attorney General, Kathleen C. Walsh, General Counsel Air Resources Board, Kirk C. Oliver, Senior Staff Counsel Air Resources Board for Plaintiff and Respondent.

The defendants have raised 29 separately headed contentions challenging the viability of this action, several of the superior court’s rulings during trial, the rejection of their defenses, the failure of the superior court judge to recuse himself between the trial phases, the amount of the penalties, the award of costs, the invalidity of a discovery sanction, and their entitlement to attorney’s fees if they prevail. In the published portions of the discussion, we reject their arguments regarding the statute of limitations, their constitutional and other defenses to liability, and their challenges to the fines assessed against them. We reject the remainder of their contentions in the unpublished portion of the opinion. We shall thus affirm the judgment in all respects.

Division 26 of the Health and Safety Code (§ 39000 et seq.) is devoted to regulation of air quality. Part 5 of the division (§ 43000 et seq.) generally provides for regulation of air pollution from vehicles. Chapter 2 of Part 5 (§ 43100 et seq.) is devoted to new motor vehicles. In article 1 of this chapter (§§ 43100-43108), the Legislature has authorized the Board to test and certify new motor vehicle models as complying with emissions standards developed by the Board. Article 1.5 of the chapter (§ 43150 et seq.) prohibits all conceivable transactions involving new motor vehicles which have not received the Board’s certification pursuant to the chapter. For purposes of this article, it is "conclusively presumed" a vehicle with fewer than 7,500 odometer miles is "new." (§ 43156, subd. (a).)

The defendants assert a one-year statute of limitations applied to their violations. As the last of the transactions occurred in January 1991, they claim the September 1992 action was untimely.

The first three claims involve errant interpretations of the relationship between the two limitations statutes. (1) The literal words of the three-year limitations statute apply to any action brought under Division 26; no reasonable basis exists for giving effect only to the portion of the statute which creates a delayed-accrual rule for Division 26 actions. (2) It is the one-year limitations statute which generally applies to all actions by the state for penalties or forfeitures, while it is the three-year statute which specifically applies to Division 26 actions for penalties or fines. Therefore, even if the two statutes could possibly be considered in conflict, we would give effect to the three-year statute. (Estate of Kramme (1978) 20 Cal.3d 567, 576.) (3) The principle disfavoring repeals by implication (People v. Leong Fook (1928) 206 Cal. 64, 70) is irrelevant in this context. The Legislature expressly recognized in 1990 that effective January 1, 1991, it was changing existing law in creating a specific statute of limitations for "actions maintained for the enforcement of provisions on air pollution." (4 Stats. 1990, Summary Dig., ch. 669, p. 236.)

Between the phases of the trial, the defendants moved alternatively to dismiss the action on the basis of double jeopardy, or to stay the action pending the exhaustion of administrative remedies. Both arguments rely on administrative proceedings brought by the DMV in September 1992 to revoke the dealer’s license of the defendants. The court denied the motion. We address under this heading three arguments raised on appeal by the defendants in connection with this motion.

We rejected an analogous contention in Hardin Oldsmobile v. New Motor Vehicle Bd. (1997) 52 Cal.App.4th 585, 593-594, and do so here: "It cannot be said that the [NMVB] has jurisdiction over statutory and common[-]law claims not specified in the enabling legislation merely because some of the facts forming the foundation for such a claim could have been asserted as the foundation of statutory . . . claim[] within the [NMVB]’s jurisdiction. That is, in the end, an illogical argument which goes as follows: (1) the administrative agency has jurisdiction over some claims arising from a certain set of facts and (2) the exhaustion[-]of[-]remedies or primary[-]jurisdiction doctrine[s] require[] prior resort to the administrative agency; therefore, (3) the administrative agency has jurisdiction over all claims arising from those facts. The conclusion does not follow from the premises." We also noted the absence of any authorization for the NMVB to award damages. (Id. at p. 595.) Therefore, "[t]he status of the litigants . . . does not confer jurisdiction on the [NMVB] over common[-]law claims and statutory claims not specifically committed to it." (Id. at p. 598.) Since there is no showing that the Legislature has placed enforcement of air-pollution statutes within the ambit of the NMVB, this argument fails.

2. Concurrent jurisdiction: Citing Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 81-82, the defendants assert that under the rule of concurrent jurisdiction, the trial court was obligated to stay proceedings until the completion of the DMV’s license-revocation proceedings because the latter first obtained jurisdiction over them. (Accord Plant Insulation Co. v. Fireboard Corp. (1990) 224 Cal.App.3d 781, 786-787.)

Scott is not apposite to the present situation. It discusses the general principles of concurrent jurisdiction in the narrow category of cases where two tribunals have alternative exclusive jurisdiction rather than concurrent jurisdiction, concluding there is nonetheless concurrent jurisdiction to decide the issue of which tribunal has exclusive jurisdiction. (Scott, supra, 46 Cal.2d at p. 89)). Moreover, the ordinary rule of concurrent jurisdiction is not even applicable in the present context. "[A]batement [of the second action] is not appropriate where the first action cannot afford the relief sought in the second." (Plant Insulation Co., supra, 224 Cal.App.3d at p. 787.) The defendants cite no authority for an award of section 43154 penalties in the administrative proceedings. Consequently, the administrative proceedings do not have primacy over the present action.

` 3. Double jeopardy: The defendants argue, "Although both actions brought against [them] are civil actions, the punishment requested is so extremely punitive in nature that each action is equivalent to a criminal prosecution." However, the courts of California have repeatedly held that administrative disciplinary proceedings against licensees are for the purpose of protecting the public and are not intended as punishment of the licensee, so they are not considered penal in nature. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 785; Viking Pools, Inc. v. Maloney (1989) 48 Cal.3d 602, 607; People v. Damon (1996) 51 Cal.App.4th 958, 981; Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856.) Thus, the imposition of both a fine and license suspension against a dealer is permissible. (Evilsizor v. Dept. of Motor Vehicles (1967) 251 Cal.App.2d 216, 220.) We consequently reject this argument.

Although the motion itself is missing from the original superior court file on record in this court, the defendants apparently moved immediately before the liability phase of the trial to strike the Board as a plaintiff and require the action to be prosecuted by the Attorney General rather than counsel for the Board. The trial court denied the motion. The defendants renew this argument on appeal.

The Attorney General commenced this action in September 1992 in the names of the People and the Board, listing counsel for the Board as co-counsel. The Attorney General thereafter had no active part in the litigation. The defendants did not object to this arrangement until a year later, when they began to refuse to have any contact with counsel for the Board.

At the commencement of the liability phase of the trial, the court reviewed the matter. The defendants again argued, "As to Mr. Drachand, we have three letters from [him] on the specific subject of the California emission standards and enforcement. And I believe he is still the chief of the division, chief of the engineering branch. . . . [¶]  [W]e believe his presence is necessary to examine him on these very issues that are now before the Court represented by the correspondence that we have prepared to offer as evidence." The Board countered that the proposed witness is "a very busy man. He is the head of the entire mobile source division . . . . His letters, if they are admissible, will speak for themselves." The Board also cited inapposite procedural provisions of the portion of the statute governing requests for a witness to bring documents (Code Civ. Proc., § 1987, subd. (c)) in order to argue waiver on the part of the defendants. The court concluded, "I don’t feel that I have sufficient evidence before me to show that Mr. Donald Drachand is within the meaning of Section 1987-B, a managing agent of such party. So I’m going to deny the request to produce . . . . [¶]  And since I feel that there is no one who falls within 1987-B, I’m going to deny the motion to produce either the witnesses or the documents."

On appeal, the defendants argue the denial of their notice to produce the witness prejudiced them because "Various documents, for which no foundation could be laid without his presence, would have established that, at least during the period immediately before this case was filed, the . . . Board did not consider the class of vehicles at issue to be subject to application of the statute. [¶] Some of these documents were attached as Exhibit A, Appendix II, Subexhibit C." (Emphasis supplied.) They also argue they were entitled to call him as an adverse witness. (Evid. Code, § 776.) The Board asserts the witness was not one of its officers, directors, or managing agents and thus was not within the ambit of the notice-to-produce statute.

In its statement of decision, the superior court rejected the defendants’ claim of a good-faith belief that their actions did not violate the provisions of the Health & Safety Code. The court based this conclusion inter alia on the decision of a DMV hearing officer in the administrative proceedings against the defendants (of which the court took judicial notice), and three letters authored by defendant Wilmshurst (which the court received in evidence as admissions). The court also rejected the defendants’ argument that federal law preempted the statutes under which they were prosecuted. In connection with this ruling, the court cited two letters from federal air-quality enforcement officials and a "notice of agency action" in the Federal Register (all of which the court again had taken judicial notice).

The defendants make several arguments that the superior court erred in receiving these various documents into evidence as a basis for its ruling. None is of any merit.

1. Admissions: The defendants claim the letters written by defendant Wilmshurst to Subaru of America and the Board in March and April of 1991 (the exact contents of which we need not detail) do not constitute admissions impeaching their claim of a good-faith belief in the legality of their conduct. They argue he wrote these letters after taking the challenged actions, and defendant Wilmshurst had testified these remarks only repeated the opinion of the Board rather than his own opinion of his conduct.

The defendants do not provide any authority for their assertion that a writing after an incident cannot constitute an admission of the state of mind of the author at the time of the incident. As we cannot imagine why that should be a foundational obstacle to use of the writing as an admission (rather than a circumstance affecting the weight of the purported admission), we will not be the first court to so rule.

As for the assertion premised on the self-serving testimony by defendant Wilmshurst regarding his meaning in the letters, we think the superior court expressed it best at the time of his testimony (quoting one of the letters): "‘This is not just a violation of the law by Forty-Niner. It is also a violation of the law by Subaru.’ No attribution to [the Board]. It’s a direct statement from the writer of the letter." In its statement of decision, the superior court noted it had found these admissions "so significant that the Court listened carefully to Mr. Wilmshurst’s testimony explaining th[at] he did not really mean what he seems to have clearly stated. That testimony was unpersuasive." We will not gainsay this resolution of defendant Wilmshurst’s credibility by the superior court.

3. Discovery cut-off: In a perfunctory one-paragraph argument, the defendants assert "Exhibits C-3 through C-10 [sic; there were only 6 "C" exhibits at trial], of which the trial court took judicial notice, were produced by [the Board] more than a year after the trial court had terminated discovery on both sides. [¶] [The Board]’s presentation of these documents as ‘judicial notice’ was obviously intended to circumvent the December 1 discovery cut off. That was fundamentally unfair."

The defendants provide absolutely no authority for the notion that the process of judicial notice is subject to the limitations of a discovery cut-off date. Nor, since judicial notice is a substitute for formal proof which eliminates the need to introduce evidence on facts assumed to be indisputably true (1 Witkin, Cal. Evidence (3d ed. 1986), Judicial Notice, § 80, p. 74), do we find any logical basis for this proposition.

Under the preemption provision of the federal Clean Air Act (42 U.S.C. § 7401 et seq.), "No state . . . shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles . . . subject to this part. No State shall require certification . . . or any other approval relating to the control of emissions from any new motor vehicle . . . as condition precedent to the initial retail sale . . . of such motor vehicle . . . ." (Id., § 7543(a).) Consequently, enforcement of emissions standards for new motor vehicles is the sole and exclusive prerogative of the federal government. (Sims v. Fla. Dept. of Hwy. Safety & Motor Vehicles (11th Cir. 1989) 862 F.2d 1449, 1455.)

Under the Clean Air Act, a motor vehicle is "new" until it is acquired by the first person who does not buy it for the purpose of resale (an "ultimate purchaser"). (42 U.S.C. § 7550(3),(5).) By contrast, California law (as previously noted) "conclusively" presumes for vehicles with fewer than 7,500 odometer miles that the person acquiring the vehicle does not have the status of ultimate purchaser (regardless of the actual intent of the purchase). (§ 43156, subd. (a).)

The defendants argue the California definition of a new motor vehicle is incompatible with the federal definition and is therefore preempted. However, they have not established even a colorable preemption claim.

The differing federal and state definitions create four categories of motor vehicles:

It is only with respect to the first category that California’s efforts to enforce its emissions standards on a "new" motor vehicle by means of the section 43156 presumption would involve preemption, because those are the only motor vehicles which are the subject of the Clean Air Act. However, the EPA has waived federal preemption. The effort by the defendants to posit a distinction between the authority of the EPA to waive federal emissions standards and its supposed lack of authority to waive the federal definition of an ultimate purchaser is irrelevant. The definition of a new motor vehicle has no import outside the enforcement of emissions standards. If California is authorized to apply its standards to new motor vehicles, it does not matter that the state’s definition of new motor vehicles overlaps with coverage of the federal statute.

The second category does not involve preemption because these motor vehicles are not subject to state regulation. The defendants seem to argue the definition in section 43156 impermissibly exempts these vehicles from coverage under the Clean Air Act, but we cannot find any basis in law or logic for this suggestion.

The final two categories also do not involve preemption because the Clean Air Act, as noted, does not itself apply after the initial sale of a vehicle. The defendants do not provide any authority for inferring a Congressional intent to preempt all state regulation of vehicle emissions after the initial sale. Therefore, if California wishes to regulate these vehicles, there is not any federal interest involved.

The defendants argue the presumption in section 43156 violates the Commerce Clause as an impermissible burden on interstate commerce. (U.S. Const., art. I, § 8, subd. (3).) The short answer is that any limitation imposed by the Commerce Clause on the power of a state to act "may be lifted, as it has been here, by an expression of the ‘unambiguous intent’ of Congress." (New York v. United States (1992) 505 U.S. 144, 171 [120 L.Ed.2d 120]; accord Merrion v. Jicarilla Apache Tribe (1982) 455 U.S. 130, 154 [71 L.Ed.2d 21, 40].) The preemption waiver provisions of 42 U.S.C. § 7543(b) demonstrate an intent by Congress to grant California the broadest possible discretion in adopting and enforcing standards for the control of emission from new motor vehicles. (Motor and Equipment Mfrs. Ass’n, Inc., supra, 627 F.2d at p. 1128.) "The history . . . of the California waiver provision . . . indicates that Congress intended the State to continue and expand its pioneering efforts at adopting and enforcing motor vehicle emission standards different from and in large measure more advanced than the corresponding federal program . . . ." (Id. at pp. 1110-1111 [emphasis supplied].) This intent extends to California’s emissions program as a whole. (Id. at p. 1110.) In light of this express intent of Congress to allow California to forge emissions standards at variance with the rest of the United States, the defendants do not have a tenable argument based on the Commerce Clause.

Citing absolutely no authority, but using language evocative of challenges based on the constitutional guarantee of equal protection under the law (U.S. Const., Fourteenth Amend.), the defendants argue section 43156 is arbitrary in its selection of 7500 miles as the dividing line between categories of vehicles because there is no technological basis for that cutoff point. They conclude, "clearly the statute has been applied in a random and capricious manner."

As the Board correctly maintains, California could not effectively enforce its standards for emissions from new motor vehicles without a mileage-cutoff point that is sufficiently high to discourage people from purchasing motor vehicles out of state which are not subject to the certification process and driving them back to California. It is beside the point that a particular uncertified car might nonetheless satisfy California standards; the sheer number of vehicles registered in California renders ludicrous any suggestion the Legislature must make allowances for individual cases. As for the defendants’ claim there is nothing to distinguish cars with 7499 or 7501 miles, it has been discredited for almost half a century: "It is also urged that the statute is unreasonable and discriminatory because under it one who discharges an air contaminant only slightly below the prescribed limit . . . is exempt from the prohibition even though if he continues his operation long enough he will discharge more contaminant . . . than one who continues for only a short time . . . . But the drawing of such a line is very largely a matter of legislative discretion, the exercise of which will not be reversed by the courts unless abused. . . . ‘[T]he line must be drawn somewhere or there can be no classification and the courts have recognized that if the classification is reasonable in its over-all operation it is not to be stricken down because of its application to a particular case that may lie just inside its borders.'" (People v. International Steel Corp. (1951) 102 Cal.App.2d Supp. 935, 939-940.)

Under a heading invoking the protections of due process against fundamental unfairness, the defendants argue the application of section 43156 to used motor vehicles with fewer than 7500 odometer miles "is obscured by its placement within [a c]hapter . . . dealing with new motor vehicles. There is no reference to § 43156 in any statute, rule or regulation dealing with used motor vehicles in either the Health & Safety Code or the Vehicle Code." They therefore claim the Board should be estopped from penalizing them.

In essence, this argument amounts to putting the wolf of ignorance of the law in the sheep’s clothing of notice. "The intentional doing of an act expressly prohibited by statute constitutes the offense denounced by the law regardless of good motive or ignorance of the criminal character of the act." (People v. Byers (1979) 90 Cal.App.3d 140, 150; accord 1 Witkin & Epstein, Cal. Criminal Law (2d. ed. 1988) Defenses, § 218, pp. 251-252.) That a particular defendant might not have the research skills to find an applicable statute has never been and never will be a valid excuse for failing to comply with it. Nor can they premise their ignorance of the law on opinions purportedly issued by the Legislative Counsel; it does not offend traditional notions of fair play and substantial justice to apply the true meaning of a statute regardless of a defendant’s claimed reliance on mistaken opinions which do not have the weight of a ruling of a court of law. (People v. Sobiek (1973) 30 Cal.App.3d 458, 476.)

As for their claim of estoppel, "We previously have recognized that this doctrine ordinarily will not apply against a governmental body except in unusual instances when necessary to avoid grave injustice and when the result will not defeat a strong public policy." (Hughes, supra, 17 Cal.4th at p. 793 [emphasis supplied].) The state’s strong public policy in protecting air quality precludes application of estoppel here. More importantly, by rejecting the defense of a good-faith belief, the trial court’s ruling necessarily precludes any claim of reliance necessary for estoppel. (Ibid.) This argument consequently fails.

The defendants argue the trial court erred in failing to credit their claim that, at the time they engaged in the transactions involving the subject vehicles, they had a good-faith belief they had complied with California law. In essence, they argue the trial court never considered whether this was a reasonable belief and instead based its ruling solely on its conclusion this was an erroneous belief.

As we noted earlier in analyzing prejudice from the trial court’s improper use of judicial notice of the DMV hearing officer’s opinion, the trial court rejected the self-serving testimony of defendant Wilmshurst that he in fact held this good-faith belief at the time of the transactions. There is substantial admissible evidence to support this conclusion, namely defendant Wilmshurst’s failure to recall whether he had ever previously raised this theory central to his defense in the administrative proceedings, and his statements in the letters received into evidence as admissions. Nothing in the statement of decision indicates the superior court confused its rejection of defendant Wilmshurst’s subjective state of mind at the time of the transactions with the accuracy of that view of the law.

In chapter 2 of part 5 of division 26, the Board is authorized to develop emissions standards for new vehicles and procedures for certifying they meet these standards. (§ 43100-43108.) These includes surveillance during the assembly-line process at the factory. (§ 43202, 43210.) Transactions involving new motor vehicles which have not been certified pursuant to this process are prohibited by sections 43150-43156.

In chapter 5 of part 5 of division 26 (§ 44000 et seq.), the Legislature has provided for the biennial inspection and maintenance of emissions-control devices in all vehicles "powered by internal combustion engines" (the "smog-check" program), requiring all motor vehicles to obtain certificates that their emissions are in compliance with standards developed by the Board for this chapter. (§§ 44011, 44013.) Vehicle Code sections 4000.1 and 4000.2 direct the DMV to enforce this requirement by making a valid certificate of compliance a condition of the registration of any vehicle.

Without any authority whatsoever, the defendants argue these two programs for regulating the emissions from motor vehicles should be considered parallel regulatory schemes, so that even motor vehicles which the Board has not certified at the factory for sale in California pursuant to chapter 2 can nonetheless be sold if they individually satisfy the emissions standards enforced as part of the DMV’s inspection program in chapter 5. This premise resurfaces some 20 pages later in one of their briefs as part of a two-sentence claim (again unsupported by any authority) that sections 43150-43156 are fundamentally unfair and thus violate due process because they "conflict" with the smog-check program.

The defendants claim there is no evidence in the record that the emissions-control equipment of their uncertified vehicles is any different than the equipment in certified vehicles. Even if true (and the Board points to evidence at trial disputing this claim), the defendants do not apprehend the irrelevance of this fortuity. The vehicles are nonetheless uncertified and thus transacting in them is unlawful. The defendants do not provide any authority permitting us to gloss the express prohibition against transacting in vehicles not "certified pursuant to this chapter" (§§ 43151-43153) by inferring a proviso "or which have uncertified equipment which happens to perform up to California air-emissions standards." As we have stated earlier, the sheer magnitude of the number of vehicles in California means we should defer to the Legislature’s choice not to engage in case-specific determinations of the adequacy of a particular vehicle’s emissions system.

The defendants reformulate this premise in a different part of their brief, arguing there was no evidence the subject vehicles emitted pollutants in excess of California standards, and thus the Board failed to prove what is in their view an essential element of its cause of action. They base this claim on an ipse dixit conception of California law being standards-based, in contrast to equipment-based requirements of federal law. The argument fails because sections 43151-43153 prohibit transactions involving vehicles lacking the required certification, not vehicles which do not meet the standards which underlie the certification. We are not free to depart from the express wording of the statutes. We thus reject this argument.

At a hearing on June 15, 1995, defendant Wilmshurst served the court with a "Statement of Disqualification of Judge" based on the trial judge’s December 1994 praise of a colleague whose abilities defendant Wilmshurst disputed. Following the hearing, the trial judge struck the Statement of Disqualification on June 20 as being untimely and failing to state a cognizable basis for disqualification.

On June 29, defendant Wilmshurst filed a "Modification of Statement of Disqualification of Judge" which reiterated the substance of his previous disqualification statement and added the assertion that comments of the trial judge (Richard Tuttle) at the June 15 hearing about counsel for defendant 49er (attorney Wright) provided additional grounds for disqualification. This was followed by a substantially identical "Amended Modification of Statement of Disqualification of Judge" on June 30.

The defendants argue here that while Toomey may be authority for finding both of them liable (accord International Steel Corp., supra, 102 Cal.App.2d Supp. at pp. 937, 942 [evidence sufficient to support liability of both president and corporation]; see United States v. Park (1975) 421 U.S. 658, 670 [44 L.Ed.2d 489, 499-500] [discussing general principle under federal purity laws that both agent and corporation can be liable for criminal act]), it does not address the separate issue of whether a court can fine both defendants. They assert the exaction of a fine from each of them amounts to a "double" punishment which is "openly unconstitutional." They do not, however, provide any authority which precludes fining each of them. We decline to supply it. Each of the defendants has independent legal existence; regardless of the fact defendant Wilmshurst may "be" defendant 49er, the trial court did not find any basis to disregard the corporate entity. If both may be liable for the violations, then each must suffer the consequences of the violations.

The defendants contend the amount of penalties violates the excessive-fines clause of the federal constitution. (U.S. Const., Eighth Amend.)

In Austin v. United States (1993) 509 U.S. 602 [125 L.Ed.2d 488], the Supreme Court stated there was nothing in the history of the Eighth Amendment which indicated its limitation to criminal prosecutions. (Id. at p. 608.) "[T]he question is not . . . whether [a fine] . . . is civil or criminal, but rather whether it is punishment." (Id. at p. 610.) Even assuming a fine serves some remedial purpose, it will be considered punishment if it also serves "either retributive or deterrent purposes." (Id. at p. 621.)

Austin declined to articulate a test for determining whether a fine is excessive. Although a number of forfeiture cases have articulated a multi-factor analysis of proportionality to be followed by a trial court (e.g., United States v. Bajakajian (1998) 524 U.S. ---, --- [141 L.Ed.2d 314, 329-331]; U.S. v. Alexander (8th Cir. 1994) 32 F.3d 1231, 1235-1237), the constitutionality of a fine is determined by a simpler test. "Proportionality is likely to be the most important issue in a forfeiture case, since the claimant-defendant is able to pay by forfeiting the disputed asset. In imposing a fine, on the other hand, ability to pay becomes a critical factor. But the [Sentencing] Guidelines mandate that this factor be considered . . . and if the sentencing court complies with these provisions, any constitutional ability-to-pay limitation will necessarily be met." (U.S. v. Hines (8th Cir. 1996) 88 F.3d 661, 664.) The defendants’ concern with the relationship between the amount of the fines and nature of their offenses or the amounts of fines imposed in other cases is consequently irrelevant; it is their ability to pay which is the constitutional lodestar.

Here, the trial court found both defendants had the financial resources and ability to pay the per-car penalty of $5,000. As a result, this fine did not violate the Eighth Amendment.

In a variation on their earlier theme, the defendants argue the amount of the fine must be based on the degree to which the subject vehicles polluted the air, rather than deterrence (as measured by their ability to pay). Claiming there was no evidence any of the vehicles had emissions in excess of those tolerated under the law, the defendants argue the Board is not entitled to any penalty assessment.

In addition to disgorging illicit gains and obtaining recompense, a civil penalty also has the purpose of deterring future misconduct. (State of California v. City & County of San Francisco (1979) 94 Cal.App.3d 522, 531; People v. Bestline Products, Inc. (1976) 61 Cal.App.3d 879, 924). Regulatory statutes would have little deterrent effect if violators could be penalized only where a plaintiff demonstrated quantifiable damages. (State of California v. City & County of San Francisco, supra, 94 Cal.App.3d at p. 531.) Further, "A penalty statute presupposes that its violation produces damages beyond that which is compensable." (Ibid. [emphasis supplied].) The burden of proving that actual damages are less than the liquidated maximum provided in a penalty statute lies with a defendant, and in the absence of evidence in mitigation a court is free to assess the full amount. (Id. at pp. 531-532.)

The defendants appear to believe that simply because they were prepared to demonstrate that their uncertified vehicles might not emit pollution in excess of California standards, this would have been sufficient evidence that the actual damage from transacting in uncertified vehicles is negligible. This is not the limit of the damages they have caused, however. They inconvenienced the purchasers of the vehicles; they caused the DMV to incur costs in enforcing the certification requirement for registration; and they have caused the Board to incur no end of enforcement costs. All these are damages borne by the taxpaying citizens of this state as a result of the defendants’ decision to flaunt the proscriptions of the Health & Safety Code. The defendants also ignore the extent to which the amount of penalty relates to the amount of profit they realized in the wrongful transactions.

Their argument that damage must be paramount to deterrence in penalty-setting once again raises the untenable spectre of forcing the Board in every individual case to prove the amount of emissions stemming from a particular vehicle, an enforcement scheme the Legislature has eschewed. Having violated the Legislature’s carefully crafted strategy for minimizing the pollution effects of mobile sources in interstate commerce, it is a sufficient basis for the penalty that they be deterred from ever doing so again. Thus, the court did not err in failing to consider the defendants’ mitigating evidence of possibly permissible emissions from the subject vehicles, and as a result was entitled to award the maximum penalty per violation.

Following the entry of judgment, the defendants unsuccessfully moved to tax certain costs claimed by the Board. On appeal, they challenge the trial court’s failure to tax deposition costs and the $5,000+ in costs which the Board categorized as being incurred for "service of process."

The Board filed a memorandum of costs under penalty of perjury in which it claimed $248.25 in filing fees, $1848.65 in deposition costs ($250 for taking the deposition and the remainder for transcribing it) and $5325.34 for "service of process" (which consisted of a list of dates, amounts, and persons served without any explanation of what was being served). In response to the defendants’ motion to tax these costs, the Board declined to defend particular costs, instead asking the court to exercise its discretion to award the entire amount as the Board’s actual and reasonably necessary costs (citing, inter alia, Code Civ. Proc., § 1033.5, subd. (c)(4)).

At the hearing on the motion, defendant Wilmshurst could give no basis for his demand that the Board substantiate its deposition costs, other than his inchoate sense the costs were excessive. In response, counsel for the Board asserted that to the extent the costs might appear high to the court, it was the result of the need to expedite the preparation of the transcripts because the defendants had delayed the depositions.

When the court asked the Board what documents were connected with the various charges for "service," the Board produced a box of invoices (organized according to invoice numbers rather than the itemization in the bill of costs), and had no specific recollection of what any particular item represented. The court put the Board’s counsel under oath. Counsel represented that the Board incurred every one of the charges for service of documents because there was an inability to serve documents effectively by any other means in the time available; many of these were instances where matters were heard ex parte or on shortened time which would not have left sufficient time to mail responses, and the defendants had demonstrated a refusal to accept any papers not exactly on time.

On its own, the trial court stated it would not allow the costs of service of documents by the Board on the Attorney General. Other than taxing a portion of the costs claimed as filing fees, the court denied the motion. As a basis for its ruling, it cited the reasonable need for "the plaintiff taking each step here with an excess of caution . . . on the side of being overly meticulous in providing necessary documents to the other side in a timely manner."

1. Deposition costs: The sole argument (raised by defendant Wilmshurst) on appeal regarding the deposition costs is the failure of the Board in the trial court to provide "dates, times, and billings to substantiate the deposition costs claimed." The Board does not specifically reply to this argument.

The Board filed its memorandum of costs under penalty of perjury, attesting to these amounts. The Board’s counsel represented at the hearing these costs were reasonable in light of the expedited need for transcripts of the deposition. If the trial court had any doubts about the Board’s credibility in claiming this amount, it could have requested further documentation at the hearing. It did not. Defendant Wilmshurst provides no authority compelling the trial court to request documentation for every cost. There is no burden on the claimant unless the party seeking to tax a cost has established it is unreasonable or unnecessary. (Ladas, supra, 19 Cal.App.4th at p. 774.) We do not find an abuse of discretion in the trial court’s implicit conclusion the defendants had failed to show the deposition costs were unreasonable.

2. Service of process: As for the costs for "service of process," we have our doubts whether the wording of the statutory provision (Code Civ. Proc., § 1033.5, subd. (a)(4)) would allow us to infer a legislative intent to include service of anything beyond the category of writs, warrants, summons, and orders. We need not pursue the question, however. The court was entitled in its discretion to allow these costs for delivery of documents to the court and the defendants even if not within the strict definition of service of process. (Ladas, supra, 19 Cal.App.4th at p. 776.) The court’s remarks indicated it believed that it was reasonably necessary in light of the history of the litigation for the Board to deliver the documents to the court and the defendants by the method it chose; the record of this action as a whole provides the substantial evidence for this finding. We consequently cannot find an abuse of discretion in permitting these costs or in the implicit finding that the amount expended on delivery was reasonable under the circumstances.

On August 1, the defendants moved for a protective order limiting the scope of a deposition of defendant Wilmshurst, limiting the inspection demand, and sealing the personal financial information provided by defendant Wilmshurst. In its opposition, the Board requested sanctions because the request for a protective order lacked substantial justification. (Code Civ. Proc., §§ 2023; 2025, subd. (i); 2030, subd. (e); 2031, subd. (e).)

A visiting judge heard the motion in the absence of the trial judge. The visiting judge concluded there was absolutely no justification for seeking a protective order limiting the scope of a previous order of the court compelling discovery, and thus awarded the full amount of sanctions claimed by the Board against the defendants, specifically citing the provision in the June 30 order that the defendants were on notice of the possibility of sanctions if they did not comply fully with that order. The visiting judge subsequently signed a written order stating the motion for protective order lacked substantial justification and awarding sanctions on that basis.

The defendants filed a motion for reconsideration of the order denying the request for a protective order and awarding sanctions. The visiting judge denied the motion after a hearing.

On appeal, the defendants cite the order denying reconsideration and claim this failed to satisfy a requirement that an order awarding sanctions must recite in detail the conduct or circumstances justifying the order (citing First City Properties, Inc. v. MacAdam (1996) 49 Cal.App.4th 507, 514; Corcoran v. Arouh (1994) 24 Cal.App.4th 310, 316). Wilmshurst also claims the order is invalid because it did not specify the statutory authority for the sanction (again citing First City Properties, Inc.). In the first place, defendant’s citation to the order denying reconsideration ignores the basis for the sanction specified in the original order—defendant’s unjustified request for a protective order. In the second place, the authority relied on involves sanctions for bad faith tactics (Code Civ. Proc., § 128.5), a statute which expressly required the recitation in detail of the conduct warranting sanctions. There is no such requirement in the statute authorizing sanctions for misuse of the discovery process. (Id., § 2023.) Finally, First City Properties, Inc. specifically distinguished discovery sanctions from its discussion of the need to specify the statutory basis for an award of sanctions. (Id. at p. 515.) The defendants have thus failed to establish the invalidity of the award of sanctions.

The defendants request an award of attorney’s fees should they prevail on appeal. As we affirm the judgment, we may disregard this request.

The judgment is affirmed.

(Certified for Partial Publication)

DAVIS , J.

We concur:

SCOTLAND , P.J.

SIMS , J.