General Discovery Statutes Did Not Justify The Reversed Result, And The Absence Of An Order Did Not Support Sanctions Under CCP § 1987.2.
Although discovery sanctions are generally affirmed under an abuse of discretion standard, that is not always the case against third parties because different standards apply.
Agnone v. Agnone, Case No. B321252 (2d Dist., Div. 3 Jan. 23, 2023) (unpublished) is a good illustration, even though it had to rely on City of Los Angeles v. PricewaterhouseCoopers, LLC, 84 Cal.App.5th 466 (2022), a case which is pending for review before the California Supreme Court.
What happened here is that a dissolution litigant subpoenaed a third-party witness Madick in the proceeding, with the dissolution litigant filing a motion to compel compliance with the subpoena under various California discovery sanctions, even though the dissolution litigants settled the action such that the motion to compel became moot. Nevertheless, the trial court granted $9,981 in discovery sanctions against the third party.
That order was reversed on appeal. Relying on the City of Los Angeles majority decision (keeping in mind it is pending in front of our state supreme court), the 2/3 DCA panel adopted its reasoning, finding that one specific relied-on section only applied to a party (not a third party) and Madick did not unsuccessfully oppose the motion because it was withdrawn under another discovery section—no general discovery sanctions as far as “general abuse” could override specific discovery statutes not authorizing sanctions against Madick.
The DCA then turned to CCP § 1987.2, which did relate to third-party subpoena motions to compel. The problem is that no sanctions were authorized unless there was an order requiring compliance. Because the dissolution litigant withdrew the motion to compel, no order was entered and, accordingly, no basis for sanctions was warranted.
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