CALIFORNIA ATTORNEY'S FEES

Discovery, Family Law: Lower Court’ $68,358 Monetary Sanctions And Issue Sanction Against Ex-Husband For Failing To Produce QuickBooks Flash Drive To Wife’s Accounting Expert Was Sustained On Appeal

CCP § 2023.030 Allowed For The Award, With Willful Discovery Defiance Found By The Lower Court.

            A party’s failure to comply with discovery orders can have harsh consequences:  monetary sanctions; issue sanctions; and sometimes even dismissal or directives to enter a default judgment.  Ex-husband found that out in Marriage of Foulk, Case No. C094350 (3d Dist. May 30, 2023) (unpublished).

            Ex-husband was found to have willfully defied discovery orders to produce a business’s QuickBooks on a flash drive for static review by wife’s accounting expert.  The lower court imposed $68,358 in monetary sanctions under CCP § 2023.030 on him as well as ordered an issues sanction by which the value of the business would only be established through the uncontested testimony of ex-wife’s accounting expert.  The appellate court found these sanctions were no abuse of discretion, affirming the orders on appeal.

Appealability, Discovery: Monetary Sanctions, Not Intertwined With Nonappealable Issue Sanctions Order, Can Be Entertained On Appeal

$37,575 Monetary Sanctions Against Defendants For Discovery Noncompliance Affirmed, Given Defense Conduct.

            Bad facts can lead to published decisions which are not complementary to a party not conducting itself appropriately in litigation.  Defendants in Deck v. Developers Investment Co., Case No. G061287 (4^th Dist., Div. 3 Mar. 24, 2023) (published) learned that sad reality.

            Defendants were hit with potentially dispositive issue sanctions (although the case went on) and $37,575 in discovery noncompliance sanctions for repeated discovery conduct, including dumping a document discovery response on the eve of a motion cut-off and discovery hearing.  The issue which we believe led to publication is whether the monetary sanction was appealable given that the issue sanctions may not have been.  The appellate court examined decisions and clarified that a monetary sanction not intertwined with an issues sanction is independently entertainable on appeal, even though the issues sanctions is not.  On the merits, the monetary sanctions were affirmed based on a record which to say the least was not flattering for defendants. 

Appealability, Discovery: Discovery Sanctions Against Client’s Attorney For Client’s Failure To Appear At A Deposition Reversed

Nothing In The Statute Shows That Sanctions Are Allowable Against Client’s Attorney.

            Castillo v. McCreary, Case No. B317493 (2d Dist., Div. 3 Feb. 21, 2023) (unpublished) is an interesting unpublished decision on an appealability issue and on whether discovery sanctions can be visited on a client’s attorney for his client’s failure to appear for a deposition, with a lower court imposing sanctions against client’s attorney. 

            On the appealability issue, the technical issue was whether a clerk’s certificate of mailing, which was file-endorsed but attaching a minute order which was not, constituted a minute order which was appealable under the more restrictive 60-day appeal limitation.  The appellate court, although sympathetic that an order like this might qualify, applied Alan v. American Honda Motor Co., Inc., 40 Cal.4^th 894, 905 (2007) conservatively so that the appeal could go forward.

            With that said, attorney won on the merits, because de novo review was required vis-a-vis the germane Discovery Act statute.  Nothing in Code of Civil Procedure section 2025.450(g)(1) authorized monetary sanctions against client’s attorney for his client’s failure to appear at the deposition.  So, the sanctions award against the attorney was reversed.

Discovery, Sanctions: 2/5 DCA Concludes $2.5 Million In Monetary Sanctions Awarded For Egregious Discovery Abuse, Under Code Civ. Proc. §§ 2023.010 and 2023.030, Was Not Statutorily Authorized And Reverses

Citing Legal Precedent, Dissenting Justice Would Have Affirmed – Seeing No Basis For “The Majority’s Unprecedented Statutory Analysis.”

            Nine months after plaintiff dismissed with prejudice its case in City of Los Angeles v. PricewaterhouseCoopers, LLC, Case No. B310118 (2d Dist., Div. 5 October 20, 2022) (published), PricewaterhouseCoopers (“PWC”) moved for monetary sanctions pursuant to Code Civ. Proc. §§ 2023.010 and 2023.030 for the ongoing discovery abuses committed by City of Los Angeles.  The trial court awarded PWC $2.5 million of the $8,356,852 it sought as a baseline amount – apparently declining PWC’s suggestion that an increase of $1 million or more over the baseline amount would be an appropriate exercise of the trial court’s discretion based on the egregious nature of City’s discovery abuse.  City appealed.

            The appellate panel concurred in its disagreement as to two of City’s contentions – that the trial court had no jurisdiction to rule on the sanctions motion after the case was dismissed with prejudice, and that the sanctions motion was untimely.  First, when the trial court is authorized to impose monetary sanctions, it retains jurisdiction after the lawsuit is dismissed to rule on the issue as a collateral matter.  Second, City showed no abuse of discretion as to the trial court’s implicit finding that PWC’s sanctions motion was timely.

            However, it was with City’s third contention that there was a split in the panel’s conclusion.  The majority agreed with City – that §§ 2023.010 and 2023.030 are definitional statutes that, standing alone or read together, do not authorize the trial court to impose sanctions.  Finding that the trial court abused its discretion by awarding monetary sanctions outside its statutory authority, the majority reversed and remanded for the trial court to enter a new order on the monetary sanctions under provisions of the Discovery Act other than sections 2023.010 and 2023.030.  Specifically, the majority concluded that section 2023.010 merely describes general categories of discovery abuse, but does not authorize the trial court to impose sanctions for discovery abuse, and that section 2023.030 describes the type of sanctions available under the Discovery Act when another provision authorizes a sanction, but does not independently authorize the trial court to impose monetary sanctions for discovery abuse. 

            Justice Grimes (Division 8 justice sitting by assignment) dissented from Presiding Justice Rubin’s and Justice Moor’s conclusion on this issue – finding no basis “in statutory law, case law, or common sense” for “the majority’s unprecedented statutory analysis.”  Citing legal precedent, Justice Grimes concluded that the “[t]o the extent authorized” language of section 2023.030 relates to type of sanction – giving authority to impose the type of sanction in question, and that legal precedent supports the imposition of various types of sanctions under section 2023.030 for discovery abuse without regard to the requirements of other Discovery Act provisions.  (Kwan Software Engineering, Inc. v. Hennings, 58 Cal.App.5th 57 (2020) [discussed in our December 3, 2020 post]; London v. Dri-Honing Corp., 117 Cal.App.4th 999 (2004).) Additionally, Justice Grimes found no principle of appellate review to require a trial court to recite the specific statutes it found were violated – so long as the trial court adequately explains its analysis and findings in support of an order.  Given that the trial court described at length the discovery abuses for which sanctions were imposed – which Justice Grimes described as being “egregious discovery abuse that is unmatched in my experience” – remanding the case back to the trial court for the purpose of fleshing out the separate discovery statute for each particular discovery violation was adverse to the Legislative intent.

Appealability, Discovery: Plaintiff “Internet Troll” In California Discovery Litigation, Whose Motion To Quash Was Dismissed, Was Not Entitled To Attorney Fees Under CCP § 1987.2(c)

Appellate Court Also Rebukes Parties And Attorneys Whose Main Quest Is To Recoup Fees After A Defeat.

            Here is how Doe v. McLaughlin, Case No. A161534 (1^st Dist., Div. 2 Sept. 21, 2022) (published) began:

            “Forty-four years ago our Supreme Court admonished that ‘The purpose of litigation is to resolve participants’ disputes, not compensate participating attorneys. Our courts are sufficiently burdened without combat kept alive solely for attorney fees.’ (International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 224.) We reiterated the admonition in 2006 (Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 675), an admonition that is as true today—if not truer—than it was in 1978.”

            This involved plaintiff, an admitted “Internet troll,” who became embroiled in a California discovery proceeding hinged to an Illinois case, seeking to quash a subpoena after plaintiff posted a mugshot of defendant despite the fact defendant’s criminal case records in Illinois were expunged and defendant/his ex-girlfriend settled Illinois litigation between themselves.   The California judge dismissed the motion to quash, primarily because defendant and his ex-girlfriend had settled their dispute.  CCP § 1987.2(c) allows for fee recovery if the moving party prevails, actions were based on the exercise of speech rights on the Internet, and the responding party fails to make a prima face showing of a cause of action, with the statute being akin to the anti-SLAPP statute.  Plaintiff had sought over $34,000 in fees.

            The 1/2 DCA affirmed, finding that plaintiff’s appellate attorney should have known the quest for fees was unwarranted based on the state of the record. 

            Although discovery orders are generally nonappealable, this one was because the entire purpose of the California proceeding was to resolve the discovery battle.  (H.B. Fuller Co. v. Doe, 151 Cal.App.4^th 879, 883-884 (2007).)

            However, the lower court correctly denied the motion to quash.  Plaintiff did not prevail under either of the two approaches described in Roe v. Halbig, 29 Cal.App.5^th 236, 305-306 (2018), given that defendant settled the Illinois action with ex-girlfriend.  Beyond that, plaintiff’s conduct was targeted harassment which is a free speech rights exception, not to mention that defendant did present a prima facie case.  

            ETHICS FOOTNOTE—The appellate court, in a footnote, reminded appellant’s counsel that he had an obligation to point out that a case had been disapproved and point out contrary authority to judges or justices.

Discovery: Defendant And Its Chicago Law Firm Ordered To Split Special Master Discovery Expenses For Failure To Preserve Text Messages And Misconduct Of Counsel During The Discovery Process

“This was a large, important case for both parties.  The parties were entitled to zealous activity from their outside counsel and from their inside corporate attorneys.  However, zealous advocacy does not justify abusive conduct or hiding the ball.”

            That was the conclusion of Senior U.S. District Judge R. Brooke Jackson in ORP Surgical, LLP v. Howmedia Osteonics Corp., Civil Action No. 1-20-cv-01450-RBJ (D. Colo 5/10/22 Findings of Fact, Conclusions of Law, and Order of Judgment) where he found that the defendant had failed to preserve text messages (although scaling back an appointed special discovery master’s suggestion of a “negative inference” spoilation sanctions) and that defendant’s Chicago counsel had improperly coached insufficiently prepared Rule 30(b)(6) witnesses during depositions/failed to timely produce relevant documents in connection with those depositions (again scaling back from the special master’s suggestion of an issue preclusion sanction).  However, given that these violations did occur and were willful/grossly negligent in nature, District Judge Jackson determined that the defendant should pay the special master’s costs/ expenses on the text message issue and that defendant’s counsel should pay the master’s costs/expenses on the discovery misconduct issue. 

            We do not know what those special master costs/expenses are, but we would guess they are substantial.  The recurring lesson is to not engage in gamesmanship during the litigation process; if you do, it will cost both the client and their attorneys if an opponent tees up the issues right, as the plaintiff did in this case.

Discovery, Judgment Enforcement: Peripheral Objector’s Unsuccessful Opposition to Motions To Compel Compliance To Judgment Enforcement Third Party Subpoenas Affirmed On Appeal

Sanctions Order Was Only $6,750, Although Losing Objector Is Now Liable For Substantially More In Appellate Fees.

            This next case, Vision en Analisis y Estrategia v. Erwin Legal, Case No. G059669 (4^th Dist., Div. 3 Feb. 17, 2022) (unpublished), demonstrates that sometimes a losing party/objector should take minor bumps rather than pursue an appeal which affirms the result and will result in imposition of likely more substantial appellate fees against the loser.

            The case involved plaintiffs’ efforts to obtain postjudgment asset information against losing defendants through third-party subpoenas, with appellant/objector being the secretary/CFO of one of the defendants.  Objector retained counsel who objected and then unsuccessfully opposed plaintiffs’ motion to compel after meet and confer efforts.  The lower court saw no reason not to compel the production, awarding sanctions of $6,750 (out of a requested $44,000) and objector and objector’s counsel under CCP §1987.2, relating to third-party discovery.

            The 4/3 DCA, in an opinion authored by Justice Goethals, affirmed.   Objector failed to show what privacy interest she had which was being infringed.  However, the potential bleeding did not stop at $6,750.  Plaintiffs were entitled to appellate fees and costs for winning the appeal, an amount us bloggers anticipate would be much more than the $6,750 at issue.  (Roe v. Halbig, 29 Cal.App.5^th 286, 313 (2018).)

Discovery, Sanctions: No Abuse Of Discretion In Trial Court’s Order Issuing $6,150 In Sanctions Against Defendant For Failure To Timely Respond To Two Sets Of Discovery Requests Served By Email.

Defendant Did Not Claim Email Service Was Improper Or That Discovery Requests Had Not Been Received, And Did Not Demonstrate That It Acted With Substantial Justification Or That The Sanctions Were Unjust Or Unreasonable.

            Personal injury defendant appealed the trial court’s order issuing $6,150 in sanctions against it – $3,075 each for defendant’s failure to timely respond to two sets of discovery requests – based on the method plaintiff used to serve the requests in Adams v. STN Builders, Case No. G059926 (4^th Dist., Div. 3 January 31, 2022) (unpublished).  The discovery requests had been served only by email, apparently due to COVID-19 protocols, but defendant argued they should have also been served by U.S. Mail.

            In a 3-0 opinion, authored by Justice O’Leary, the 4/3 DCA found defendant’s argument to be without merit. For starters, defendant did not claim that the email service was improper or that the requests had not been received.  Rather, defendant had failed to open the email and its attachment.  Additionally, a previous set of discovery requests had also been served only by email. Finally, plaintiff attempted to resolve the discovery issues through meet and confer efforts even after filing the motions to compel, but defendants failed to comply with plaintiff’s terms for resolution – that full responses be delivered by a specific date/time, and that defendant provide available deposition dates and a compromise on the monetary sanctions.

            Based on defendant’s failure to demonstrate that it acted with substantial justification, or that the sanctions were unjust or unreasonable, the panel affirmed. (Code Civ. Proc., §§ 2030.290(c) and 2031.300(c).)

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).)

Discovery, Sanctions: Third District Reverses Deposition Discovery Sanctions Against Attorney Because Deposition Suspension Requirements Did Not Entail A Reasonableness Requirement

But Unique Facts, So Do Not Think You Can Suspend Without Repercussions.

            Because we have to report on cases as we come upon them, we will say that Mason v. YD Window, Inc., Case No. C091415 (3d Dist. Oct. 5, 2021) (unpublished) is a little hard to decipher, but we will try.  In essence, a plaintiff’s attorney was hit with discovery sanctions by a discovery referee of $9,087.55 for suspending a deposition unreasonably.  There was some evidence that the defense was being crazy.  The attorney appealed, with the Third District reversing.  It found that there was no reasonableness requirement, at the time, for suspension for a deposition under Code of Civil Procedure section 2025.460(c).  The appellate court concluded there was no reasonableness requirement, the law was unsettled, and there was some indication in the record that the other side was itself unreasonable.  There you go!

Appeal Sanctions, Discovery, Sanctions: Fifth District Denies Defendants’ Writ Petition Challenging The Trial Court’s Order To Produce Discovery Responses And Pay $13,680 In Sanctions.

Defendants’ Filing Of The Writ Petition Was Wholly Without Merit And, Under The Standards Set Forth In Flaherty, Was Frivolous And Filed Solely To Cause Delay – Warranting $6,965.00 In Sanctions Pursuant To California Rules of Court, Rule 8.492.

            After defendants failed to provide discovery responses for over three years, the trial court granted plaintiff’s motion to compel and sanctioned defendants and their attorneys a total of $13,680.00.  One month after their discovery responses were due, defendants filed a petition for writ of mandate challenging the discovery order and requesting production of discovery responses be stayed.

            The Fifth District was unimpressed in Pacifica Modesto v. Superior Court, Case No. F082869 (5^th Dist., October 4, 2021) (unpublished) and denied the petition for writ of mandate – finding it to be wholly without merit. Additionally, under the two standards set forth in In re Marriage of Flaherty, 31 Cal.3d 637 (1982) [No. 9 of our Leading Cases], the panel found the writ petition was frivolous and had been filed solely to cause delay.  As such, the panel imposed $6,965.00 in appellate sanctions – pursuant to California Rules of Court, Rule 8.492, which authorizes a Court of Appeal to impose sanctions on its own motion against a party filing a frivolous petition or filing a petition solely to cause delay – jointly and severally against defendants and their counsel, representing the amount of attorneys’ fees plaintiff had incurred in defending against the writ petition.

Discovery, Sanctions: No Abuse Of Discretion In Trial Court’s Imposition Of $12,250 In Sanctions Against Plaintiff For Abuse Of The Discovery Process.

Plaintiff Was Not Substantially Justified In Initially Providing Objection-Only Responses And Failed To Meet His Burden In Showing An Abuse Of Discretion In The Trial Court’s Finding That Defendants’ Sufficiently Engaged In Meet And Confer Efforts.

            In Kramer v. Dale, Case No. D077610 (4^th Dist., Div. 1 September 24, 2021) (unpublished), the 4/1 DCA found no abuse of discretion and affirmed a trial court’s order imposing $12,250 in sanctions against a plaintiff who abused the discovery process by initially providing objection-only responses to all discovery requests propounded by defendants . 

            The panel found plaintiff’s argument that he was substantially justified in initially providing objection-only responses because he feared that providing substantive responses and producing documents would constitute a waiver of his claim for disqualification of defendants’ counsel to be unsupported by authority.  Additionally, plaintiff’s objections to the discovery requests made no mention of this fear concerning waiver of his claim – which claim was not made until the day plaintiff served his objection-only responses.  Next, the panel concluded that plaintiff failed to meet his burden to show that the trial court abused its discretion in determining that defendants adequately engaged in meet and confer efforts before filing their motion to compel.  Plaintiff’s argument that the factors identified in Obergon v. Superior Court, 67 Cal.App.4^th 424 (1998) , were mandatory elements for the trial court to consider in making such a determination went nowhere – with the panel finding that plaintiff “gloss[ed] over the deferential abuse of discretion standard of review [it] must apply here.”  Rather the panel found that Obergon made clear that “[t]he level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances,” and that the trial court was to use its “broad powers and responsibilities to determine what measures and procedures are appropriate” in the circumstances presented. (Id. at 430.)

Discovery, Sanctions: $17,427 In Sanctions Imposed In Connection With Second Special Interrogatory Objections Were Reversed As A Matter Of Law

The Second Special Interrogatories Were Duplicative Of First Special Interrogatories To Which No Motion To Compel Was Made, So The Lower Court Lacked Jurisdiction To Award Sanctions The Second Time Around.

            We post on this one to share a nifty older case for litigators embroiled in discovery battles to keep in their back pockets.

            What happened in Estate of Huang, Case No. B307671 (2d Dist., Div. 4 Aug. 17, 2021) (unpublished) is that a probate litigant served 723 special interrogatories—yes, you read right—to which no motion to compel was filed after some objections and responses were made.  Not to be deterred, the litigant served 54 special interrogatories in a second set discovery wave which, although smaller in number, were clones of prior special interrogatories in the first set.  The trial court felt shackled when facing some of the objections to the second set of special interrogatories which it deemed were unwarranted, awarding $17,427 in monetary sanctions against the objecting side.  However, the appellate court reversed all the sanctions based on Prof’l Career Colleges, Magna Inst. v. Superior Court, 207 Cal.App.3d 490, 492-493 (1989).  That case established that a trial judge is without jurisdiction to grant sanctions on a second discovery wave which is a “clone” of a first wave for which the time to bring a motion to compel has passed. 

            In a telling footnote, the 2/4 DCA panel also indicated the 723 special interrogatories were excessive and violated the L.A. County Superior Court Civility Guidelines (Local Rules Appendix 3.A(g)(1)), which states that interrogatories are to be used sparingly and not as harassment instruments. 

Appealability, Appeal Sanctions, Discovery, Sanctions: $4,900 In Monetary Discovery Sanctions Affirmed

However, Frivolous Appeal Sanctions Denied For Failure To Show The Appeal Was Brought For An Improper Motive.

            In Lazo v. Keller, Case No. G058765 (4^th Dist., Div. 3 July 29, 2021) (unpublished), two plaintiffs separately were ordered by the lower court to pay $4,900 in monetary discovery sanctions to defendant.  Plaintiffs’ appeal was dismissed in a 3-0 opinion authored by Justice Fybel.  The reason was that the sanctions order did not exceed $5,000 such that it was not appealable, requiring a dismissal of the appeal.  (Code Civ. Proc., § 904.1(a)(12).)  Defendant moved for frivolous appeal sanctions, but that request was denied because there was no evidence it was brought for an improper motive.  (In re Marriage of Flaherty, 31 Cal.3d 637, 650 (1982) [our Leading Case No. 9].)

Appealability, Costs, Discovery: Denial Of $1.1 Million For Electronic Discovery Costs Reversed Because Lower Court Seemed To Indicate No Discretion On Awarding Them

Modern Trend Is To Recognize E-Discovery Recoupment Costs As Long As They Are Justified.

            Ya know, times change, technology changes, and jurisprudence changes.  Although unpublished, City of Los Angeles v. PricewaterhouseCoopers, LLP, Case No. B305583 (2d Dist., Div. 5 July 8, 2021) (unpublished) shows how electronic discovery costs may be awardable, if justified, based on  evolving technological changes from an early appellate court decision which was adverse to recovery of these costs.  (We do not discuss the affirmance of some substantial costs reductions for out-of-town attorneys traveling and attending depositions, because the reductions were in order given that the same law firm had Los Angeles attorneys who could attend rather than New York travelling attorneys.  If you need support for these reductions, you can read the decision.)

            What happened here is that the City of Los Angeles voluntarily dismissed a suit, with defendant moving to recover about $1.1 million in electronic discovery costs, mainly for processing/loading, hosting, and producing documents.  The lower court denied all the requested costs based on an older decision in Science Applications Internat. Corp. v. Superior Court, 39 Cal.App.4^th 1095, 1103-1104 (1995), deciding that routine costs in this area should be denied in an earlier time where the technology costs were substantial and the rationale for granting them was more attenuated.  Much has changed with technology since Science Applications, given that subsequent decisions generally show a proclivity to award these electronic discovery costs as long as they are supported as being necessary and reasonable in nature.  (See, e.g., El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc., 150 Cal.App.4^th 612, 620 (2007); Bender v. County of Los Angeles, 217 Cal.App.4^th 968, 990-991 (2013); Hooked Media Group, Inc. v. Apple Inc., 55 Cal.App.5^th 323, 338-339, 351 (2020).)  Because these costs are not prohibited and can be awarded in the trial court’s discretion, the denial based on an outright ban had to be reversed and remanded for another look. 

            BLOG MILEAGE TIME—Although there is a split in thinking, this appellate panel also sided with the view that an order taxing routine costs is appealable as a post-trial order, following Mesa Shopping Center-East, LLC v. O Hill, 232 Cal.App.4^th 890, 898 (2014) and Gassner v. Stasa, 30 Cal.App.5^th 346, 354-355 (2018), but not following the contrary decision in Mon Chong Loong Trading Corp. v. Superior Court, 218 Cal.App.4^th 87, 92 (2013).  The panel found its conclusion was consistent with the treatment of collateral final orders.  (Krikorian Premiere Theatres, LLC v. Westminster Central, LLC, 193 Cal.App.4^th 1075, 1083 (2011).) 

Discovery, Sanctions: No Abuse Of Discretion In Trial Court’s Denial Of Plaintiffs’ Motion For $17,074 In Monetary Sanctions Against NonParty For Failure To Comply With Trial Court’s Discovery Order And For Order Requiring Further Production

The Trial Court’s Finding That Nonparty’s Amended Responses And Production Were Adequate And In Compliance With Its Discovery Order In Ruling On Plaintiffs’ Request For A Contempt Sanction Against Nonparty Sealed The Results.

            Husband and wife plaintiffs – suing over two loans, one for $11,327 and one for $427,000, they had made to defendants – filed a motion to compel against nonparty Wells Fargo when they were dissatisfied with Wells’ responses to a deposition subpoena for personal appearance and production of documents.  The trial court issued an order directing Wells to provide supplemental responses within 30 days, and Wells served an amended response to plaintiffs’ subpoena, along with additional responsive documents and a privilege log indicating that specified documents were withheld as attorney-client communications.  Still dissatisfied, plaintiffs filed another motion – seeking monetary sanctions of $17,074 against both Wells and its attorney for discovery misuse, a contempt sanction, and an order requiring Wells to produce unredacted documents responsive to the subpoena – alleging Wells had not complied with the trial court’s order as the order did not permit Wells to make objections or redactions.  The trial court found that Wells had complied with its order, which did not explicitly prevent Wells from producing redacted documents or a privilege log, by producing supplemental responses that appeared to be adequate, and denied plaintiffs’ motion.

            The 2/3 DCA affirmed these results in Dutton v. Marinescu, Case No. B305851 (2d Dist., Div. 3 June 22, 2021) (unpublished) – concluding there was no abuse of discretion with regard to the trial court’s order refusing plaintiffs’ requests for monetary sanctions and for an order requiring further production given the trial court’s finding that Wells had complied with its order.  As to the trial court’s order refusing to hold Wells in contempt, the panel dismissed given that such an order is not appealable as the only method of obtaining review is a petition for extraordinary writ.  (Wanke, Industrial, Commercial, Residential, Inc. v. Keck, 209 Cal.App.4th 1151, 1162, fn. 11 (2012).)

Deadlines, Discovery, Sanctions: Class Action Debt Collector Defendant Unsuccessfully Argues On Appeal That Renewed Discovery Motion Was Untimely And 1/3 DCA Affirms Monetary Sanctions Of $8,400

The Trial Court Declared The Discovery Motion Moot When It Granted Summary Judgment To Plaintiff, But Motion Was Renewed After Remand, And Parties Were Returned To Same Positions They Would Have Been In If Plaintiff Had Defeated Summary Judgment In The First Instance.

            In Timlick v. National Enterprise Systems, Case No. A160110 (1^st Dist., Div. 3 June 22, 2021) (unpublished), class action defendant, being sued for violating the minimum type-size requirements in its consumer collection letters, obtained summary judgment in its favor for having cured the violation as to plaintiff.  At the time, plaintiff’s pending motion to compel further responses and for sanctions was declared moot in light of the summary judgment.  After successfully appealing the summary judgment on behalf of the class (but not on behalf of herself), plaintiff renewed her discovery motion, which the trial court granted in substantial part in addition to awarding $8,400 of the requested $11,115 in requested monetary sanctions against defendant. 

            Defendant appealed – arguing that the discovery motion was untimely as the 45-day deadline to compel further responses had passed by the time plaintiff renewed her discovery motion.  Not so, said the 1/3 DCA.  Plaintiff’s discovery motion was timely filed prior to the trial court’s grant of the summary judgment, and the trial court had not denied the discovery motion when it declared the motion to be moot and “dropped without prejudice.”  Rather, the trial court’s grant of the summary judgment created a loss of ability for the trial court to grant the relief plaintiff sought.  However, reversal of the summary judgment left the parties “in a position no different from that they would have occupied if they had simply defeated the defendants’ motion . . . in the trial court.” (Urbaniak v. Newton, 19 Cal.App.4^th 1837, 1844 (1993).)  As such, the trial court’s jurisdiction to rule on plaintiff’s motion was restored and it had the discretion to order precertification discovery – notwithstanding any adverse rulings as to plaintiff individually.  Additionally, the panel found no abuse of discretion in the award of sanctions – especially given the trial court reduced the amount requested to reflect defendant’s partial success. 

Discovery, Sanctions: $4,423 Discovery Sanctions Affirmed Against Plaintiff And Its Attorney On Appeal

Reduced Sanctions Were Awarded, But Excuses For The Losing Side Were Not Credited.

            We would say that Heesung Investment, Inc. v. Karle, Case No. E074320 (4^th Dist., Div. 2 May 11, 2021) (unpublished) indicates that, like many other appeals, credibility reigns king.

            This one involved reduced discovery sanctions of $4,423 against a litigant and its counsel for failing to respond to four discovery requests.   The other side had requested $9,546 in discovery sanctions, but the lower court found this requested amount to be excessive so as to lead to the reduced amount as the ultimate award.

            The 4/2 DCA found the reduced sanctions order was no abuse of discretion.   A failure to respond to discovery, unless there is substantial justification, is one which automatically leads to sanctions.  No credible excuses were offered.   In fact, the attorney who was sanctioned as well promised responses, but did not deliver.  Discovery sanctions order affirmed.  (We always wonder why an appeal would be made from this type of lower monetary award, but one cannot speculate why.)

            This does give us a chance to inform practicing attorneys about CCP § 2023.50, which does allow a court to report to the State Bar document discovery sanctions above $250 in specified circumstances.   Just letting you all know ….

Discovery, Sanctions: 1/3 DCA Affirms Trial Court’s Order, Entered After Plaintiffs Voluntarily Dismissed The Case, Setting Aside Monetary Sanctions Previously Imposed Against Defendant For Discovery Abuses.

Exceptions To The General Rule That Deprives Trial Courts Of Jurisdiction Following Voluntary Dismissal Of A Case Allow Trial Courts To Retain Jurisdiction To Determine And Enforce Collateral Statutory Rights – Such As Motions For Sanctions.

            In Manhan v. Gallagher, Case No. A158152 (1^st Dist., Div. 3 March 26, 2021) (published), plaintiffs filed motions to compel for further discovery responses and obtained monetary sanctions against defendant for discovery violations.  In support of their motions, plaintiffs’ counsel submitted a declaration stating his billing rate in the matter was $300 per hour.  Plaintiffs later dismissed their lawsuit against defendant without prejudice. On the same day, defendant filed a motion for reconsideration or to have discovery sanctions imposed against her set aside based on a declaration filed by plaintiffs’ lead attorney stating plaintiffs had incurred no legal fees and had been represented pro bono in their case against defendant. 

            It turned out that the associate attorney who filed the declaration claiming a $300 hourly billing rate for his work on the lawsuit was unaware that the firm had taken the case pro bono in light of plaintiffs’ long-standing relationship with the firm. 

            After the trial court granted defendant’s request and set aside the monetary sanctions imposed against her, plaintiffs appealed – arguing that the trial court lacked jurisdiction to consider and set aside the previously imposed sanctions following plaintiffs’ voluntary dismissal of the action.

            The 1/3 DCA affirmed – citing Pittman v. Beck Park Apartments Ltd., 20 Cal.App.5th 1009, 1022-1024.  While, as a general rule, voluntary dismissal of a case deprives the trial court of both subject matter and personal jurisdiction in that case, a number of exceptions have been carved out allowing a trial court to retain jurisdiction postdismissal and postjudmgent to determine and enforce collateral statutory rights – such as motions for sanctions. Further, the panel found no sound basis in logic or public policy to deny a remedy to a party burdened with sanctions obtained through misrepresentation (whether or not intentional) simply because a plaintiff dismisses an action – that disallowing reconsideration in cases such as this, where sanctions are based on misrepresentations, violates a reasonable sense of justice and fair play.

Discovery, Sanctions: Continued Deficiencies In Discovery Responses Resulted In Monetary And Evidentiary Sanctions Against Self-Represented Plaintiff, And Ended In Terminating Sanctions.

Affirmance Of The Terminating Sanctions Mooted Plaintiff’s Appeal Of The Trial Court’s Order Sustaining Defendants’ Demurrers And Motions To Strike.

            Following ten months of meet and confer correspondence, seven sets of amended discovery responses, and impositions of evidentiary and $8,000 in monetary sanctions, the trial court issued terminating sanctions with prejudice against self-represented plaintiff for his continued failure to correct persistent issues with his discovery responses.

            Plaintiff appealed in Soofi v. Contreras Law Firm, Case No. D076884 (4^th Dist., Div. 1 March 25, 2021) (unpublished) – alleging trial court bias and claiming his discovery deficiencies were the result of his misunderstanding of the discovery statutes – not willful noncompliance.  The 4/1 DCA affirmed – finding no abuse of discretion nor bias.  Plaintiff had been provided with ample time and opportunity to correct his errors of providing incomplete or nonresponsive information to defendants, and failed to meet his burden of showing the actual probability of bias by the trial judge.

            Because the panel affirmed the terminating sanctions – which the trial court issued with prejudice, resulting in the dismissal of the entire case – it did not reach plaintiff’s challenges to the trial court’s order sustaining defendants’ demurrers and motions to strike.

Discovery, Sanctions: $6,954.95 Deposition Discovery Sanctions Award Was Appealable Even Though It Was Payable To Two Different Recipients, While $1,750 Sanctions Award Was Not Appealable

However, The Merits Appeal Of The $6,954.95 Sanctions Award Did Not Succeed Based On Failure To Appreciate The Nature Of The Deposition Process.

            Burke v. Newport-Mesa Unified School Dist., Case No. G058732 (4^th Dist., Div. 3 Jan. 21, 2021) (unpublished), authored by Justice Goethals of our local Santa Ana appellate court, has some interesting discussion points on discovery sanctions appealability thresholds and on the nature of the deposition process in civil litigation.

            In this one, plaintiff was sanctioned two times in relation to deposition conduct or non-conduct: (1) $6,954.95 in discovery sanctions for refusal to answer questions at a court-ordered deposition, although they were made payable to two different sets of recipients (one motion based on the same conduct); and (2) $1,750 in discovery sanctions for failing to sit for a subsequent deposition, payable to just one party.  Plaintiff, obviously upset, appealed.

            The $1,750 order was not appealable because it was one for sanctions below $5,000.

            However, the $6,954.95 order was appealable, because CCP § 904.1(a)(12) focuses on the amount to be paid, not the amount split between any diverse recipients.  All the more so because it was a single motion arising from the same deposition conduct.  Respondents argued that a removal of the matter to federal court somehow divested jurisdiction away from the state courts, but this did not resonate with the appellate court.  However, although getting past the crucial appealability and procedural hurdles, plaintiff could not prevail on the merits.   After all, he refused to answer 223 questions at his deposition and responded “I don’t know” to an additional 234 questions.  Plaintiff argued that he “cured” any transgressions by providing supplemental responses after the deposition in writing to many of the unanswered questions, but the appellate court indicated this misapprehended the difference between on-the-spot deposition cross-examination and an after-the-fact interrogatory type of answering process—no effective cure at all and a misunderstanding of the deposition process.  In the end, the larger sanctions order was affirmed, and the appeal from the lower sanctions order was dismissed.

Appealability, Discovery, Sanctions: Appeal Of Terminating Sanctions Does Not Necessarily Also Encompass Challenge To Discovery Monetary Sanctions

2/7 DCA Implicitly Suggests Disagreement With Other Decisions, But Finds Two Sanctions Orders Were Not Intertwined.

            OK, for you folks who love technical appealability issues, Taylor v. Forde, Case No. B298957 (2d Dist., Div. 7 Jan. 20, 2021) (unpublished), may be your forte, especially when it comes to appealability of discovery terminating sanctions orders and discovery monetary sanctions.  Be careful when you appeal a terminating sanctions order.

            What happened here is that both discovery terminating sanctions and monetary sanctions orders were entered, but no judgment was ever entered on the complaint or stricken cross-complaint—no default prove-up proceedings resulted in a final judgment.  Appellants appealed the terminating sanctions order, but they did not contest the monetary sanctions order.  The lack of a final judgment on the merits sealed the deal with respect to appealing the terminating sanctions order, except for appellant’s argument that the appeal of the monetary sanctions preserved the appeal of the terminating sanctions.  Appellant argued that the terminating sanctions order was “inextricably intertwined” with the monetary sanctions order over the $5,000 limit such that everything was good. 

            The 2/7 DCA disagreed, dismissing the appeal.  It questioned whether the “inextricably intertwined” exception in Nickell v. Matlock, 206 Cal.App.4^th 934 (2012) and Mileikowsky v. Tenet Healthsystem, 128 Cal.App.4^th 262 (2005) was valid.  However, the terminating sanctions and monetary sanctions orders were not intertwined given no suggestion the sanctions order was erroneous, all the more so because they serve different purposes.  Because the terminating sanctions order was nonappealable and not intertwined, the appeal was dismissed.    

Discovery, Sanctions: Monetary Discovery Sanctions Improperly Denied Against Litigants Under “Unjust” Exception Simply Because Other Terminating Sanctions Granted Previously

However, Litigant’s Attorneys Were Not Subject To Sanctions Because No Evidence Indicated The Attorneys Advised The Clients To Engage In The Discovery Violations.

            Litigators need to read the Sixth District’s recent decision in Kwan Software Engineering, Inc. v. Hennings, Case Nos. H042715 et al. (6^th Dist. Dec. 2, 2020) (published) on sanctions available for discovery abuses.  In a very scholarly opinion, the Court of Appeal held that (1) monetary sanctions cannot be denied against litigants engaging in discovery abuses simply because terminating sanctions (in this case, dismissing some claims) had been previously granted, because this does constitute injustice under the “sanctions unjust” exception; and (2) litigant’s attorneys cannot be sanctioned under Code of Civil Procedure section 2023.030 unless there is evidence that they advised the clients to engage in the discovery violations.  Here is what the Sixth District had to say on the attorney issue: “We understand defendants’ observation about the difficulty of eliciting direct proof of such conduct in light of an attorney’s ethical obligations and privileges protecting attorney-client communications. However, the difficulty of carrying this burden stems from the statute itself, and we lack the authority to ignore its explicit statutory directive.”    

Costs, Discovery: D.C. Circuit Decides That Only Electronic File Conversion Costs, Not Hosting, Organizing, Or Bates Stamping Expenses, Can Be Recovered By Federal Court Winners

Interpretation Of The Scope of 28 U.S.C. § 1920 Was At Issue.

            28 U.S.C. § 1920 provides:  “A judge or clerk of any court of the United States may tax as costs the following:  (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.” (In federal court, taxing costs means the costs can be granted—just the opposite of the terminology familiar to California state judges and practitioners.)

            Of course, electronic discovery (e-discovery) has compounded greatly the costs and expenses of litigating in federal courts, with the question naturally arising as to what e-discovery expenses can be “taxed” (recovered as a matter of right), subject to being reasonable.

            U.S. ex rel. Barko v. Halliburton, 954 F.3d 307 (D.C. Cir. 2020) did consider that very question, coming to a conclusion that some commentators have indicated it out of line with modern e-discovery practice/the expense of e-discovery—a conclusion, however, that was governed by the fact that section 1920 has not been amended since 2008 such that judicial interpretation is guided by a more outdated interpretation of document review expenses (such as when associates were relegated to review and the recoverable costs were limited to photocopying expenses untethered to the expensive pre-copying activities).

            In Barko, a district judge sustained a clerk’s taxing (granting) of a $100,000 costs bill to a prevailing employer in a False Claims Act case for the following e-discovery items:  (1) initial conversion (converting files from their native formats into a format compatible with an e-discovery hosting platform); (2) subscribing to a hosting platform facilitating the various e-discovery steps; (3) processing documents (organizing, keyword-searching, and Bates stamping documents); (4) conversion for production (converting documents into shareable formats for production to opposing counsel and transferring those files onto portable media such as USB drives); and (5) production processing (drafting production cover letters and shipping discovery materials to opposing counsel).

            The D.C. Circuit reversed, determining that only category (4) costs were recoverable, which only came to $342.41, which respect to “costs of making copies of any materials where the copies are necessarily obtained for use in the case” under § 1920(4).  “Put another way, section 1920(4) authorizes taxation of costs for the digital equivalent of a law-firm associate photocopying documents to be produced to opposing counsel,” not the previous, more expense-laden “doc review” tasks performed by the associate. 

            Here is our favorite ending observation from Barko:  “Too often ‘cost disputes embody all the acrimony of hotly contested litigation, sometimes with great nitpicking and pettifogging, refusing to “go gently into that good night” of the closed docket.’  Matter of Penn Central Transportation Co., 630 F.2d 183, 191 (3d Cir. 1980).”

Discovery: 4/3 DCA Affirms Substantial $586,600 Discovery Order, With A Remand On A Relatively Smaller, Potential Add-On Amount, Against Plaintiffs, But Not Their Counsel

Principles Of Compulsion, Causation, And Reasonableness Are Beacons For Discovery Sanctions.

            Justice Fybel, the author of Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc., Case No. G057176 (4^th Dist., Div. 3 Oct. 28, 2020) (published) on behalf of a 3-0 panel, has penned a decision which all litigation clients and attorneys should consult with respect to what principles govern discovery sanctions, given that much of modern day litigation expense is devoted to the discovery stage of a case in many instances.

            Plaintiffs got hit with terminating sanctions (not at issue) and monetary sanctions (at issue) for various discovery abuses under Code of Civil Procedure section 2023.030.  The defense requested about $2 million in sanctions, but the lower court awarded $586,600 instead, but only against Plaintiffs (not their counsel).  This awarded amount was three times over that recommended by a discovery referee (yep, referees are appointed all so often in contentious, high stake matters).  However, the defense appealed, arguing that more sanctions should have been awarded and they should have been awarded against Plaintiffs’ counsel.

            The 4/3 DCA affirmed a huge amount of the rulings, but it remanded for a fairly insubstantial amount at issue—agreeing that sanctions were not warranted against counsel.  This opinion is mandatory reading for litigators, because it teaches that three principles should always guide discovery sanctions requests by litigants, their counsel, and presiding trial judges.  Those principles are these:  compulsion; causation; reasonableness.  Read the decision to see why!

Discovery, Sanctions: $5,684 Discovery Sanction Against Plaintiffs Affirmed Where They Could Not Produce A Written Confirmation Of A Discovery Extension

Beyond That, The Defense Did Not Pull The Trigger Too Hastily On Motions To Compel, Trying To Work It Out.

            Discovery frequently is the bane of both practitioners and judges, not to mention studies that confirm it has led to an increase in the costs of civil litigation for many, many cases.  California has a scheme allowing parties to stipulate to discovery extensions, but they must be confirmed in writing (although emails certainly satisfy this requirement).  The next case shows the importance of creating an adequate record where sanctions are being fought on the basis that a discovery extension was obtained from the other side.

            In Cantu v. Equinox Holdings, Inc., Case No. B295973 (2d Dist., Div. 5 Sept. 15, 2020) (unpublished), Plaintiffs failed to answer some paper discovery requests and failed to obtain a firm written confirmation of a discovery extension, although the propounding defense attorneys tried to work it out.  Plaintiffs finally propounded boilerplate objections to the requests and tried to argue that a blanket-type extension had been granted without evidence of a written confirmation.  The defense waited a little while longer, filing motions to compel and seeking $9,440 in attorney’s fees as discovery sanctions.  The trial judge used a blended hourly rate and reduced the number of hours to impose a sanction of $5,684 against plaintiffs.

            Plaintiffs’ appeal was not successful.  As a stark reminder to which we have posted on before, the failure to provide a reporter’s transcript of the relevant law-and-motion hearings was fatal, especially where a discretionary ruling was involved as opposed to one on legal issues.  Further, there was no clear proof of a written discovery extension such that there was no substantial justification for the opposition to the motions to compel.  The appellate court also observed that the defense did not file the motions to compel too soon, only doing so after receiving boilerplate objections and no plan by the other side as to providing real answers.

Discovery, Sanctions: Trial Court Cannot Impose Discovery Sanctions Once A Vexatious Litigant Motion Is Filed

Imposition Of Sanctions Was Error Because Filing Of Motion Stayed Further Proceedings Except A Ruling On The Vexatious Litigant Motion.

            In Hanna v. Little League Baseball, Inc., Case Nos. E070995 et al. (4^th Dist., Div. 2 Aug. 18, 2020) (partially published; sanctions discussion published), defendant filed a motion to have plaintiff declared a vexatious litigation under CCP § 391(b), requesting plaintiff post security and requiring plaintiff to obtain judicial prefiling permission for other pleadings—common requests in this type of motion.  Defendant also had moved to obtain discovery sanctions against plaintiff.  The lower court entertained all these motions at the same time, granting the vexatious litigant motion and ordering plaintiff to pay $1,200 in discovery sanctions.  Although affirming the vexatious litigant determination, the 4/2 DCA reversed the grant of discovery sanctions.  The reason was based on the clear statutory language of CCP § 391.6, which stays proceedings such that the lower court lacked jurisdiction to entertain and to impose discovery sanctions.

Discovery: Central District Of California Case Awarded Some Attorney’s Fees Where Party Responding To Rule 30(b)(6) Notice Failed to Specify Production Date

Practice Point For Litigators:  Specify A Time For Production Or Develop A Good Email Chain!

            In QC Labs v. Green Leaf Lab, LLC, 2019 WL 6797250 (C.D. Cal. July 19, 2019), a responding party to a F.R.Civ. P. 30(b)(6), under Rule 34(b)(2)(B), failed to specify a time for production of documents/EIS even though Rule 34 requires to specify a reasonable response date beyond the date mentioned in the production notice.  The responding party did not indicate an end date for production, even on a rolling basis, which resulted in a motion to compel grant and award of some attorney’s fees/costs to the requesting party.  So, the practice tip for federal practitioners is to specify a reasonable end date or develop an agreement through emails which shows there is no firm deadline, but the parties will communicate about time frames for a “rolling production” where a document/EIS production is time-consuming.

Appealability, Discovery, Family Law, Requests For Admission, Sanctions: Appeal Dismissed For Petitioner Who Was Dissatisfied With Trial Court’s Order On His Motion To Have Requests For Admission Deemed Admitted And For Sanctions

The Appellate Court Has No Jurisdiction To Review A Discovery Order.

            Petitioner father and respondent mother in Minasian v. Katz, Case No. A158517 (1^st Dist., Div. 2 June 11, 2020) (unpublished) were involved an incredibly protracted action – dating back to 2004 – regarding their child who was born the year before. 

            In 2018, petitioner served respondent with Requests for Admission, but considered petitioner’s original and second sets of responses inadequate, and filed a Request for Order to have the RFAs deemed admitted and for sanctions against respondent.  When the trial court ultimately ordered sanctions of $195 against respondent and that she file proper responses within 21 days, petitioner appealed – arguing the trial court exceeded its authority and discretion in ruling the respondent would have 21 additional days to file her RFA responses.  Unfortunately for petitioner, his appeal turned out to be an exercise in futility.  The 1/2 DCA dismissed.  The panel concluded petitioner’s appeal was of a discovery order, not a judgment, and that it was without jurisdiction to rule on the discovery order given there is no statutory provision allowing for an appeal of an order on a discovery motion.  (Lund v. Superior Court of Orange County, 61 Cal.2d 698, 709 (1964); Code Civ. Proc. § 904.1.)  

Discovery, Sanctions: $7,862.50 Sanctions Award Against Cross-Complainant In Insurance Case Affirmed On Appeal For Presenting An Unsuccessful Motion To Augment An Expert Witness Designation

Cross-Complainant’s Dilatory Conduct Justified The Sanctions Award.

            Code of Civil Procedure section 2034.630 states that a trial court “shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to augment or amend expert witness information, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”   This section was front and center in Black v. Fireman’s Fund Ins. Co., Case No. A155428 (1^st Dist., Div. 1 Apr. 23, 2020) (unpublished).

            In this case, a cross-complainant/insured brought an insurance bad faith suit against cross-defendant/insurer Fireman’s Fund.  He designated two expert witnesses.  Fireman’s Fund tried for over 1 ½ years to depose one of these experts, although the expert had informed cross-complainant that he would not provide expert testimony unless paid.  A trial judge ordered the deposition of the expert under penalty of exclusion of his testimony at trial or otherwise.  Cross-complainant did not produce the expert before the expert discovery cut-off and then brought a motion to augment the expert designation based on the claim that he needed time to find/designate a new expert.  The trial judge denied the motion and imposed $7,862.50 in sanctions under section 2034.630. 

            Cross-complainants’ appeal of the sanctions order was unsuccessful.  The record showed, quite clearly, that the initially designated expert was not going to provide testimony until he was paid, and cross-complainant showed no “substantial justification” for his delay in resolving the matter or designating a new expert for 1 ½ years.  Beyond that, the appellate court found this event was part and parcel of dilatory conduct by cross-complainant, who had obtained 6 continuances of the trial date during the course of the litigation.  Sanctions order affirmed.

Discovery: Litigant Ordered To Pay 50% Of Discovery Referee Costs Did Not Demonstrate An Abuse of Discretion

Litigant’s Claims Of Inability To Pay Was Not Adequately Documented And Raised Too Late.

            In Duran v. Atlantic Memorial Hospital Associates, Inc., Case No. B286660 (2d Dist., Div. 7 Apr. 8, 2020) (unpublished), a litigant was ordered to bear 50% of a discovery referee’s costs. CCP § 639(a)(5) does allow a trial court to apportion a referee’s costs, modified by the condition that it must also gauge whether the party has the economic ability to pay under § 639(d)(6)(A).  It is an abuse of discretion for the lower court to not consider inability to pay in this area of the law.  (McDonald v. Superior Court, 22 Cal.App.4^th 364, 370 (1994).). The appellate court determined there was no abuse of discretion in the discovery referee fee apportionment, given that the appealing litigant did not specify the limited funds available to the party and given that the litigant waited way down the line to claim financial distress, which was a credibility issue for the lower court to weigh against the litigant. 

Discovery, Sanctions: Louisiana Federal District Judge Assesses Fees And Sanctions Against Defendant And/Or Its Attorney For Deposition Interruptions, Speaking Objections, Instructions To Not Answer, Witness Coaching, And Failure To Prepare The Deponent

Various Fees And Sanctions Ordered Under FRCP 37.

            We sometimes blog on cases outside of California.  This one caught our eye because it received press in a March 30, 2020 post by Debra Cassens Weiss in the ABA Journal.

            In REC Marine Logistics, LLC v. Richard, No. 19-11149 (E.D. La. Mar. 27, 2020) (Docket Doc. 93) [linked here], U.S. Magistrate Judge Dana M. Douglas confronted plaintiff’s request for attorney’s fees for bringing an earlier motion to compel and then fees/costs/sanctions under FRCP 37 for defense counsel’s dilatory discovery actions and his tactics during a noticed deposition in a maritime injury case.  Magistrate Judge Douglas initially awarded $3,675 in fees for an earlier motion to compel, which then turned the focus upon defense counsel’s conduct during the deposition.  He made 145 interruptions during questioning, 16 instructions to the witness not to answer, 106 objections (including 52 speaking objections), and 11 instances of interrupting to ask his own questions during the cross-examination of the witness, not to mention that the witness was coached and was unprepared for the deposition.  Defense counsel appeared on 170 pages of the 255-page deposition transcript.  Based on this conduct, the magistrate judge ordered the defendant and his attorney to pay the attorney’s fees and costs associated with the deposition and pay plaintiff’s fees associated with the sanctions motion, as well as defense counsel paying individual sanctions in the amount of $1,000.  Wisely, defendant did not oppose the fees/sanctions motion brought by plaintiff.

            BLOG OBSERVATION—The seminal federal case for deposition protocol is Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).   A Southern District of California district judge in the past issued a Hall-type order.  (See Vestin Realty Mortgage II Inc. v. Klaas, No. 08-CV-2011 (S.D. Cal. Oct. 25, 2010).) However, some of the Hall protocols have been found to be too inflexible such that more moderate approaches are followed.  (See Chesbrough v. Life Care Centers, Inc., 2014 WL 861200 (Mass. Super. Feb. 14, 2014) at *2, 3, 5 [especially addressing attorney conferences with deponents during legitimate breaks, not deposition special interruptions].). District courts are generally not impressed with conferences in depositions where a question is pending unless a privilege/trade secret/privacy issue is involved, frequently sanctioning for such interruptions.  (See, e.g. New Age Imports, Inc. v. VD Importers, Inc., 2019 WL 1427468, at *3 (C.D. Cal. Feb. 21, 2019) [motion to compel second deposition of witness due to in-deposition conference was “substantially justified” so as to support an award of costs]; Horowitz v. Chen, 2018 WL 4560697, at *3-5 (C.D. Cal. Sept. 20, 2018) [attorney and client “repeatedly left the room together while a question was pending;” costs and redeposition ordered].)

Appeal Sanctions, Discovery: Discovery And Family Code Section 271 Sanctions Of $3,250 Against Father Affirmed On Appeal

Also, Father Ordered To Pay Mother $2,980 For Prosecuting A Frivolous Appeal.

            Father, in Rybolt v. Riley, Case No. C086056 (3d Dist. Mar. 24, 2020 (unpublished), appealed from a non-appealable vocational evaluation order and discovery/Family Code section 271 totaling $3,250 for bringing motions to compel which were denied/did not further legitimate purposes of the overall litigation.  Father’s appeal did not go well.  Although it is true sanctions were awarded under both section 271 and the discovery statutes, discovery sanctions do not require an ability to pay as a necessary predicate such that they were no abuse of discretion.  The vocational evaluation order was non-appealable and father’s other arguments were frivolous, prompting the appellate court to award mother $2,980 in attorney’s fees and costs expended in responding to father’s appeal. 

Appealability, Discovery, Sanctions: $3,456.70 In Fee Sanctions Based On Denial Of Postjudgment Discovery Order Upheld On Appeal

Motion Denying Discovery Order Is Nonappealable, But 2/8 DCA Treated It As Mandate Petition; CCP § 128.5 Principles Were Not Involved, Because Discovery Sanctions Were At Issue Instead.

            The 2/8 DCA in Dalessandro v. Mitchell, Case No. B293472 (2d Dist., Div. 8 Dec. 17, 2019 unpublished), but certified for publication on January 3, 2020, dealt with a plaintiff who had a postjudgment discovery motion denied for failure to affix postage to the demand (making service improper) and who was also assessed (along with his counsel) with discovery sanctions of $3,456.70.  Plaintiff appealed.

            On a liminal jurisdictional issue, the appellate panel did agree that the postjudgment discovery was not appealable, acknowledging a split in authority but siding with the non- appealability decisions.  However, it did exercise discretion to treat the appeal as a mandate petition so the merits could be heard expeditiously.

            Because there was no postage attached to the discovery demand, service was improper such that sanctions were warranted.  Plaintiff’s argument that there was noncompliance with CCP § 128.5(f) by failing to give “safe harbor” leeway was bogus because the lower court issued fees as sanctions for discovery abuse.  Nothing demonstrated that an opposing party had to meet and confer with respect to alerting the demanding party to defects in discovery requests (such as improper service).  Finally, opposing party did request sanctions in his motion to compel opposition, a perfectly valid way of presenting the issue to the lower court. 

Discovery, Sanctions: Failure To Designate The Deposition Video In The Appellate Court Doomed Challenge To $11,000 Sanction For Unilaterally Terminating A Videotaped Deposition

Motion To Augment The Record To Include The Video, One Day After The Appellate Argument, Was Deemed Untimely.

            Genesis Media, LLC v. Misle, Case No. B294620 (2d Dist., Div. 3 Sept. 10, 2019) (unpublished) is an appeal from a discovery sanction where an inadequate appellate record and untimely motion to augment sealed the fate of the sanctioned parties.

            However, the facts are interesting to say the least. 

Plaintiff Genesis Media, whose founder was Howard Misle, filed a breach of contract action against Ownzones Media and an individual in connection with Ownzones’ agreement to produce and operate a cannabis-focused media and lifestyle business.  Defendant Ownzones noticed Mr. Misle’s videotaped deposition in Las Vegas at the defense firm which had an armed security guard in the firm’s lobby.  A kerfuffle then ensued, with Mr. Misle apparently leaving the deposition room before any question could be answered based on the security guard’s presence in the law firm lobby.  Ultimately, plaintiff’s attorney terminated the deposition because the security guard was not removed from the lobby.  Plaintiff moved to compel the deposition and for resultant sanctions, even though no protective order motion was filed by the defense (although defense counsel claimed he suspended the deposition in order to seek a protective order).  The lower court reviewed the deposition video, granting the motion to compel and sanctioning Mr. Misle, plaintiff, and plaintiff’s counsel, jointly and severally, in the reduced amount of $11,000—expressly finding that the deposition video confirmed defendant counsel’s account of events leading to the motion to compel. 

            Mr. Misle and plaintiff’s counsel appealed, but they failed to designate the deposition video.  Big mistake.  The sanctions award was affirmed based on an inadequate record.  However, appellants obviously sensed at the appellate argument that they should have designated the video, bringing a motion to augment the record with the video one day after the oral argument.  This was denied as untimely.  (Regents of University of California v. Sheily, 122 Cal.App.4^th 824, 826 n. 1 (2004).) 

Appealability, Discovery: Appeal From Final Judgment Does Preserve Challenges To Discovery Rulings.

2/4 DCA Finds Persuasive Reasoning From Prior 2/8 Decision On This Issue.

            We found Baiul-Farina v. Crown Media Holdings, Inc., Case No. B279653 (2d Dist., Div. 4 Aug. 21, 2019) (unpublished) interesting, not because it affirmed discovery sanctions rulings, but for its discussion on appealability.  Appellant argued that discovery sanctions rulings were not appealable under CCP § 906 because they were not on the merits.  The 2/4 DCA disagreed, finding persuasive the reasoning in In re A.L., 224 Cal.App.4^th 354, 362 n. 4 (2014), a Second District, Division 8 decision, which found that an appeal of a final judgment will encompass prior discovery rulings also. 

Discovery, Family Law: $2,500 Discovery Sanctions Order Reversed In Favor Of Responding, Prevailing Party Because No Competent Declaration Of Incurred Expenses Was Presented

CCP § 2023.040 Was The Key Statutory Provision.

            Just to show you that technicalities can matter in the discovery area, the First District, Division 2 reversed a $2,500 discovery sanction against ex-wife in Marriage of Stupp v. Schilders, Case No. A154396 (1^st Dist., Div. 2 July 10, 2019) (unpublished).  What happened is that a party moving to compel discovery responses lost, and the lower court awarded the successful responding party with $2,500 in discovery sanctions.  This one had to be reversed because the trial judge, earlier, had stricken a declaration filed by the responding party because it was not signed by the actual declarant and that was the only proof of what was expended in responding to the motion to compel.  Given the lack of evidence on expenses incurred in responding to the discovery motion, the sanction award had no support at all.  (Code Civ. Proc., § 2023.040.) 

Discovery, Family Law: Family Law Judges, On Discovery Matters Rather Than OSC Matters, Can Issue Sanctions Based On Declaration Testimony

No Oral Testimony Required Under The Circumstances.

            We found Marriage of Clarke and Akel, Case No. A151888 (1^st Dist., Div. 5 Dec. 11, 2018) (unpublished) to be an interesting case given that it involved an intersection between family law and civil discovery procedures.

            The essence of the matter was a discovery dispute between parties to a marital dissolution proceeding. Eventually, ex-wife was ordered to pay to ex-husband $15,000 on a discovery motion to compel under CCP §§ 2023.030(a), 2031.310(h). The principal challenge was that the family law judge erred in deciding the discovery dispute based on declarations, rather than admitting oral testimony.

            The appellate court affirmed. Nothing exempts family law cases from application of discovery principles, which routinely allow these disputes to be resolved through declaration testimony. This is contrasted with substantive order to show cause matters, which usually require oral testimony unless the parties stipulate otherwise. Beyond that, ex-wife did not object to the declarations such that any argument otherwise was waived.

Discovery, Reasonableness Of Fees: 6 DCA Remands Determination For Prevailing Party Under Subpoena To Look Again At Amount Of Fees To Be Awarded

CCP § 1987.2 Prevailing Party Fees In Subpoena Context Might Depend On Who Met Litigation Objectives, Although The Test Is Not Crystal Clear.

            John/Jane Roe v. Halbig, Case No. H043248 (6^th Dist. Nov. 20, 2018) (published) is an interesting, but somewhat perplexing, opinion on the fees to be awarded to a party which ultimately prevailed because the other side withdrew a subpoena, which did allow for a prevailing party award under Code of Civil Procedure section 1987.2(c). Although adopting a “did you achieve your litigation objectives test,” it was only done under an abuse of discretion standard such that the test is not crystal clear at all as far as providing a benchmark guidance for future litigants. We are not complaining about the result, but benchmarks are good.

            What happened was that plaintiff sued certain doe defendants in Florida about alleged comments made by them on websites/social medical websites. Plaintiff served a subpoena on Google, who coughed up the account holders—including the doe defendants.   One account holder filed a motion to quash the subpoena under CCP § 1987.2(c), which includes a fee-shifting provision in the prevailing party’s favor. Plaintiff withdrew the subpoena, with the doe defendant found to be the prevailing party although the trial judge only awarding $22,000 out of a requested $42,581 in fees.

            The appellate court remanded for a “re-do” of the fee determination.

            It did determine that a challenging subpoenaed party could be the prevailing party under circumstances where a subpoena was withdrawn, although did not articulate a clear-cut test. Rather, it found no abuse of discretion with the trial judge adopting a “prevailing party” test where the party achieved its litigation objectives, although discussing under tests under the anti-SLAPP statute (although a catalyst test was rejected) but only deciding that the “litigation objective” standard was a reasonable one to use.  

            The challenging party did prevail, but the reviewing court was flummoxed about the amount of the fee award. There were some hourly fees which likely should have been honored, but the trial judge cut them down drastically. So, the fee award was sent back down for a “relook.”

Discovery/Sanctions: Plaintiff In Pro Per Attorney Properly Imposed With Discovery Sanctions Of $5,510 (Inclusive Of Attorney’s Fees) Under CCP § 2030.300(d)

Appellate Court Rejects In Pro Per’s Due Process Argument And Challenge To Temporary Judge’s Initial Assignment To Motion Matter.

            DeWitt v. HSBC Bank USA, N.A., Case No. A151545 (1^st Dist., Div. 2 June 22, 2018) (unpublished) is a situation where an in pro per attorney, representing himself as plaintiff, sued several defendants in a California Anti-Spam Act case. A superior court judge granted a motion to compel further responses against plaintiff and imposed monetary discovery sanctions of $5,510 against plaintiff/in Bank’s favor under CCP § 2030.300(d). Earlier, plaintiff had nixed having the motion matter heard by a temporary judge, which in hindsight was a mistake.

Plaintiff appealed the motion to compel and discovery sanctions, although only the sanctions award was appealable. (CCP § 904.1(a)(12); Doe v. U.S. Swimming, Inc., 200 Cal.App.4^th 1424, 1432 (2011).)

            Plaintiff’s two challenges on appeal did not succeed.

            First, plaintiff argued there were due process/equal protection violations in allowing discovery sanctions, inclusive of fees, to be awarded against an in pro per attorney, who could not gain fees as sanctions based on the attorney’s self-representation. The First District, Division 2 rejected this argument based upon the reasoning in Kravitz v. Superior Court, 91 Cal.App.4^th 1015, 1020 (2001). Kravitz first of all recognized that an in pro per plaintiff winning discovery sanctions can obtain reasonably identifiable expenses incurred such as computer-assisted legal research, photocopying, or transportation to/from court, just like lawyers representing parties can recover out-of-pocket costs. However, by definition, self-represented have incurred no attorney’s fees such that they are not similarly situated for due process/equal protection purposes. As far as the asymmetry argument made by plaintiff, the fact in pro per plaintiffs can recover out-of-pocket expenses is not that far askew because most lawyers representing parties ordinarily include such expenses in their hourly rates.

            Second, the record showed that the temporary judge did not hear the motion matter after plaintiff objected, with the matter going to a superior court judge who made an independent review. Plaintiff should have stuck with the temporary judge, whose tentative was to issue sanctions of only about 1/5^th of the amount eventually awarded by the superior court judge. Ouch! – this case reinforces the old adage “Be careful what you ask for.”