Blumenthal v. Superior Court
| Court | California Court of Appeals |
| Writing for the Court | WHITE |
| Citation | 103 Cal.App.3d 317,163 Cal.Rptr. 39 |
| Parties | Howard E. BLUMENTHAL, Petitioner, v. SUPERIOR COURT OF MARIN COUNTY, Respondent, Jack COREY and Gloria Corey, Real Parties in Interest. Civ. 48847. |
| Decision Date | 13 March 1980 |
Page 39
v.
SUPERIOR COURT OF MARIN COUNTY, Respondent,
Jack COREY and Gloria Corey, Real Parties in Interest.
[103 Cal.App.3d 318] Arthur J. Crowley, Los Angeles, for petitioner.
Stimmel & Stimmel, Avi Winokur, San Francisco, for real parties in interest.
WHITE, Presiding Justice.
This petition presents the question of whether discovery sanctions under Code of Civil Procedure section 2034, subdivision (d) may be ordered against an attorney where the moving papers seek sanctions only against his clients. We have concluded that the $1,000 award against petitioner must be annulled because petitioner was not given notice and a reasonable opportunity to defend against the sanction.
On August 28, 1979, after petitioner's client failed to appear for a deposition scheduled for the previous day, real parties in interest, the plaintiffs below, noticed a motion for sanctions. Their notice stated an intention to move the court for an order striking the answers of the defendants and/or rendering a judgment by default against the defendants and/or ordering the defendants to compensate plaintiffs in the sum of $2,500 for attorney's fees and expenses. No mention was made of sanctions against counsel.
Hearing on the motion was removed from calendar when the parties arranged a settlement of the lawsuit, but default in payments by the defendants resulted in renewal of the motion. Neither real parties' letter of November 29, 1979, nor their supplemental memorandum in support of the motion for sanctions, mentioned an intention to seek an award against counsel. In fact, the November 29, 1979 letter closed with the [103 Cal.App.3d 319] statements: "Mr. Blumenthal, your clients appear to have a very cynical contempt
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for the legal process. It is my sincere hope that we can disabuse them of that notion." (Emphasis added.)Defendants did not appear for the December 4, 1979 hearing on the motion, and petitioner did not represent them at the hearing. The court ordered default entered against the defendants and ordered petitioner to pay $1,000 in sanctions to plaintiffs and their counsel, "forthwith." After having been served with an order to show cause re contempt for failing to pay the $1,000, petitioner filed this petition to annul the sanction. We stayed the contempt proceedings.
The trial court justified monetary sanctions against petitioner by the fact that failure of counsel to appear for argument or file "papers with substantive arguments in opposition to Plaintiffs' request for sanctions and cancelling the deposition . . . the day before it was scheduled...
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Marriage of Flaherty, In re, S.F. 24307
...556; Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865; Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320, 163 Cal.Rptr. 39; Hughes v. Neth (1978) 80 Cal.App.3d 952, 954, 146 Cal.Rptr.[31 Cal.3d 652] 37.) Appellant complains that in this ......
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Dalitz v. Penthouse International, Ltd.
...v. Elliott (1897) 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215.) Cross-appellants rely on the case of Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 163 Cal.Rptr. 39 for the proposition that a sanction cannot be ordered against a party who did not have notice that the sanction might be......
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Lesser v. Huntington Harbor Corp.
...to the passage of section 128.5, trial courts had been able to impose sanctions at the trial level. Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320, 163 Cal.Rptr. 39, reviewed a discovery sanction pursuant to Code of Civil Procedure section 2034, subdivision (d), and recognized ......
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Marriage of Fuller, In re
...[163 Cal.App.3d 1078] Fifth, case authority condemns imposition of sanctions without prior notice. (Blumenthal v. Superior Court, 103 Cal.App.3d 317, 163 Cal.Rptr. 39, reviewed discovery sanctions made under section 2034, subdivision (d) against an attorney where, as here, the moving papers......
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Marriage of Flaherty, In re, S.F. 24307
...556; Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865; Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320, 163 Cal.Rptr. 39; Hughes v. Neth (1978) 80 Cal.App.3d 952, 954, 146 Cal.Rptr.[31 Cal.3d 652] 37.) Appellant complains that in this ......
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Dalitz v. Penthouse International, Ltd.
...v. Elliott (1897) 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215.) Cross-appellants rely on the case of Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 163 Cal.Rptr. 39 for the proposition that a sanction cannot be ordered against a party who did not have notice that the sanction might be......
-
Lesser v. Huntington Harbor Corp.
...to the passage of section 128.5, trial courts had been able to impose sanctions at the trial level. Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320, 163 Cal.Rptr. 39, reviewed a discovery sanction pursuant to Code of Civil Procedure section 2034, subdivision (d), and recognized ......
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Marriage of Fuller, In re
...[163 Cal.App.3d 1078] Fifth, case authority condemns imposition of sanctions without prior notice. (Blumenthal v. Superior Court, 103 Cal.App.3d 317, 163 Cal.Rptr. 39, reviewed discovery sanctions made under section 2034, subdivision (d) against an attorney where, as here, the moving papers......