Discovery Sanctions: $2,500 Sanctions Award Reversed Because Nothing Showed Attorney Advised Client’s Failure To Appear At Deposition

Second District, Division 8 Believes Attorney Was Blameless Under the Circumstances.

     In Scarola v. Dedicated Talent Agency (Pettigrew), Case No. B220482 (2d Dist., Div. 8 August 13, 2010) (unpublished), attorney for an apparently uncooperative cross-complainant was sanctioned $2,500 after her client failed to appear for a deposition in New York (even though defense counsel asked for $18,000, with the sanctions also jointly imposed against cross-complainant). Attorney appealed, and won a reversal.

     The basis for sanctions was misuse of the discovery process under Code of Civil Procedure section 2023.030(a). However, under this ground, an attorney may only be penalized for advising disobedience, with the burden of proving that no such advice was given resting with the attorney. (Corns v. Miller, 181 Cal.App.3d 195, 200-201 (1986).) In fact, sanctions have been reversed in other cases where the facts demonstrated that the attorney tried to convince the client to submit to a particular discovery process. (See, e.g., Ghanooni v. Super Shuttle, 20 Cal.App.4^th 256, 261 (1993).) If the evidence shows an attorney is blameless, it is an abuse of discretion to impose sanctions against counsel. (Weinkauf v. Superior Court, 64 Cal.2d 662, 665 (1966).)

     The circumstances in Scarola showed that cross-complainant’s counsel did try to get her client to appear for the deposition in New York, and that defense counsel appeared to travel out for the deposition even though being warned that the client would not be present for a deposition. Obviously, the appellate panel believed that attorney was blameless, expressing the view that defense counsel should have promptly sought a protective order that the deposition be held in Los Angeles (where defense counsel practiced) or that cross-complainant pay defense counsel’s fees and expenses for traveling to New York. (Code Civ. Proc., § 2019.030(a), (b); Snyder v. Superior Court, 9 Cal.App.3d 579, 586 (1970) [statutory predecessor to § 2010(b)].) Also, the reviewing panel did not believe that attorney had to inform opposing counsel of any client control problems (although it was obvious that there were problems), because to do so would likely breach a lawyer’s ethical duty to keep confidential any communications with a client. (Slip Op., p. 10.)

     The end result was a reversal of the sanctions against attorney, although the sanctions remained against cross-complainant (who apparently did not appeal the order).