Discovery, Sanctions: 1/3 DCA Affirms $7,550 Sanctions Award Against Defendant And Her Attorney

Unpublished Opinion Has Good Discussion Of Discovery Sanctions Burdens And Need To Reasonably Engage In Meet And Confer Discovery Sessions. 

            Price-Simms, LLC v. Gallegos (Fry), Case No. A160893 (1^st Dist. Div. 1 Oct. 6, 2021) (unpublished) is a situation where the appellate court affirmed a $7,550 discovery sanctions against defendant and her attorney (the attorney was representing her pro bono).  The factual backdrop was an embezzlement case where bank documents were sought through subpoenas, but with the defense not willing to meaningfully engage in meet and confer sessions by which plaintiffs offered to agree to a stipulated protective order regarding financial information.  The main plaintiff successfully resisted a defense protective order motion and sought $11,875 in sanctions.  The initial tentative was to issue $9,437.50 in sanctions, but the lower court lowered that to $7,550, awarded jointly and severally against defendant and her attorney (but with the reduction based on the attorney providing pro bono service and having his practice dip during the pandemic).  Here are some nice takeaways with respect to discovery sanctions:

• • Parties opposing a discovery sanctions request has the burden of proof in two situations:  where the opposition claims substantial justification for its actions and where an attorney resisting sanctions must demonstrate that he or she advised the client against the sanctionable conduct.  (Corns v. Miller, 181 Cal.App.3d 195, 200-201 (1986).)
  • Sanctions are mandatory where a party or attorney fail reasonably and in good faith to confer about a discovery dispute.   (Code Civ. Proc., § 2023.020.)
  • A party seeking financial discovery frequently can mitigate an opponent’s privacy concerns by offering to accept a protective order.  (Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4^th 360, 371 (2007).)
  • Nothing in the discovery statutes suggest that a party in a discovery dispute is entitled to “one free pass” before monetary sanctions can be imposed.  (Parker v. Wolters Kluwer United States, Inc., 149 Cal.App.4^th 285, 294 (2007).)