Discovery Sanctions Are Only for Past Costs Incurred, Regardless of Egregious Misconduct

Sarah Brite Evans, Esq.
Schwartz Semerdjian Ballard & Cauley, LLP
Published:  09.01.2010

Coaching witnesses and destroying documents is sanctionable conduct.  In Tucker v. Pacific Bell Mobile Services (July 29, 2010) – Cal.Rptr.3d –, 186 Cal.App.4th 1548, 2010 WL 2959230, the First District Court of Appeals, Division Five held that a trial court cannot award sanctions be paid for future deposition costs not yet incurred but upheld the sanctions for past costs incurred.

The Sanctionable Behavior

Behavior by putative class counsel J. David Franklin during a named plaintiff’s deposition was at issue in the Tucker opinion.  In the case—a proposed class action pending in San Mateo County—the plaintiffs alleged that defendant cell phone providers Pacific Bell Mobile Services and Cingular violated the Unfair Competition Law by selling so-called bucket plans without informing consumers how the length of each telephone call would be calculated. 

When the defendants’ attorney Michael Stortz began asking Ms. Knapp questions about her standing to serve as a plaintiff in the case under Proposition 64, Mr. Franklin started writing on his notepad from which Ms. Knapp began reading.  Mr. Stortz asked Ms. Knapp several times if she was reading from the notepad and testifying based upon what she was reading, and Mr. Franklin refused to allow Ms. Knapp to respond, calling that information irrelevant and privileged.  When Mr. Stortz objected to this privilege assertion, saying he had never before seen anyone assert it in this context, Mr. Franklin responded, “I suggest maybe you need more seasoning.  Maybe you haven’t been a lawyer long enough.”

Approximately two hours after Ms. Knapp’s deposition ended, Mr. Stortz emailed and faxed Mr. Franklin a letter demanding he “maintain and not otherwise alter or destroy the notepad you had in today's deposition....”  Two weeks later, Mr. Stortz sent a lengthy meet and confer letter to Mr. Franklin, to which Mr. Franklin simply responded:  “As General McAuliffe stated to the Germans at Bastogne in December, 1944: ‘Nuts!’”

The Motion for Sanctions

The defendants filed a motion for discovery sanctions pursuant to Code of Civil Procedure section 2023.030.  The trial court granted the motion, awarding costs in the amount of $7,500 to be incurred in deposing Ms. Knapp as to her review of Mr. Franklin's notebook and any questions that Mr. Franklin instructed her not to answer that were not subject to any privilege as well as costs/fees for bringing the motion.  The Court also ordered that Mr. Franklin’s co-counsel attend Ms. Knapp’s further deposition, in lieu of Mr. Franklin.

Sanctions for Bringing the Motion to Compel Were Upheld

The plaintiffs sought reversal of the trial court’s ruling on several grounds, including their claim that the trial court should have denied the sanctions motion because the defendants did not move to compel deposition responses before moving for sanctions.  They based their argument on CCP section 2025.480, which provides in relevant part that “[i]f a deponent fails to answer any question [during a deposition] ... the party seeking discovery may move the court for an order compelling that answer ...” within a specified time period.  The court held that this provision’s use of “may” indicates a discretionary choice and that a party is not required to move to compel answers before seeking monetary sanctions pursuant to section 2023.030. 

The court then held that the trial court acted well within its discretion in awarding sanctions against Mr. Franklin.

Sanctions for Future Costs of Ms. Knapp’s Continued Deposition Were Not Proper

Under CCP section 2023.030(a), the trial court is authorized impose a sanction representing “the reasonable expenses, including attorney's fees, incurred by anyone as a result” of a party's misuse of the discovery process, but the statute does not define “incurred.”  The appellate court held that these sanctions for the future costs were not permitted under the statute because the use of the past tense for “incurred” in this section “suggests the individual seeking sanctions must have already become liable for those expenses before those expenses can be awarded as sanctions.”  Tucker, 2010 WL 2959230 *9.  

This holding was a reasonable extension of other, related precedent.  For example, in Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1177, 86 Cal.Rptr.2d 917, the court determined that a self-represented attorney was not entitled to attorney fees as a discovery sanction.  The court reasoned that the common meaning of “[t]o ‘incur’ a fee ... is to ‘become liable’ for it ... i.e., to become obligated to pay it” and that an attorney litigating in propria persona does not “incur” compensation for his time.  Id. at 1177, quoting Webster's New Internat. Dict. (3d ed. 1961) p. 1146.

Also, in Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 840, 66 Cal.Rptr. 134, the trial court’s order that a witness appearing in response to a subpoena but who did not produce the required documents who was not required to pay the costs of taking his future deposition following a motion to compel production of those documents and his further deposition.  The plaintiff moved for an order pursuant to former section 2034 compelling the witness to answer questions he had refused to answer at his deposition and forcing him to produce the records described in the subpoena.  The appellate court concluded that former section 2034, subdivision (a) did not authorize the trial court to award the costs of a future deposition.  As the court explained, the trial court “not only ordered [the defendant] to pay plaintiff's costs in taking the deposition which was the subject of its motion for relief under section 2034, subdivision (a), but also ordered him to pay plaintiff's costs in taking his deposition in the future. In doing so the court far exceeded its powers as prescribed in that section.”  Johnson, supra, at p. 840.

In light of the statute’s use of the past tense as well as the holdings in the Argaman and Johnson matters, the appellate court held that the trial court does not have the authority to award the costs of a future deposition as a discovery sanction where the individual has not yet “incurred” those costs.

The End Result

The appellate court remanded the sanctions award, with instructions for the trial court to recalculate the amount of sanctions awarded to defendants and shall limit those sanctions to “reasonable expenses ... incurred” by defendants as a result of Franklin's abuse of the discovery process.  

If the recalculated amount exceeded $1,000 (which it was almost sure to do), the appellate court expressly instructed the trial court to report the sanctions to the State Bar pursuant to Business and Professions Code section 6086.7(a)(3) and instructed Mr. Franklin to report them State Bar pursuant to Business and Professions Code section 6068(o)(3).