Slemaker v. Woolley
Decision Date | 21 February 1989 |
Docket Number | No. B033490,B033490 |
Citation | 207 Cal.App.3d 1377,255 Cal.Rptr. 532 |
Court | California Court of Appeals Court of Appeals |
Parties | C.M. SLEMAKER, et al., Plaintiffs and Respondents, v. John J. WOOLLEY, et al., Defendants and Appellants. |
Sanders, Barnet, Jacobson, Goldman & Mosk, Richard M. Mosk, Bernard P. Simons and Scott L. Zimmerman, Los Angeles, Burkley, Moore, Greenberg & Lyman, and Walter R. Burkley, Jr., Torrance, for defendants and appellants.
Spierer, Woodward, Denis & Furstman, and Stanley T. Denis, Jr., Redondo Beach, for plaintiffs and respondents.
This is a purported appeal from an order of the superior court imposing sanctions on counsel for improperly suspending the deposition of a witness. We hold that the order is not separately appealable and dismiss the appeal.
On January 15, 1988, plaintiffs C.M. Slemaker and Roberta Slemaker served notice Mr. Zimmerman, representing defendants John Woolley and Joan Woolley, attempted to reschedule the depositions, claiming that one of the defendants wanted to be present but couldn't do so on such short notice. Mr. Denis, counsel for plaintiffs, refused to reschedule the depositions but later cancelled the first of the two. Mr. Zimmerman appeared for the second one and immediately suspended it invoking Code of Civil Procedure section 2025, subdivision (n). 1 At this point the situation was overtaken by schoolyard protocol. Mr. Denis claims that Mr. Zimmerman threatened the court reporter and got her so upset she lost her train of thought. Mr. Zimmerman claims Mr. Denis accosted him out in the hallway and physically shoved him around causing him to leave without an exhibit he was waiting for. Not willing to resolve the discovery dispute between themselves like professionals, they each ran to an already overburdened superior court for relief.
by telecopy to defendants' counsel of depositions of two witnesses. The depositions were both noticed for January 25, 1988. Defense counsel claimed that since Monday January 18 was a holiday (Martin Luther King, Jr.'s birthday) he was unaware of the notice until January 19.
After patiently listening to both counsel carry on, the trial court imposed $1000 sanctions on Mr. Zimmerman's firm. And, predictably, here came the appeal. While both counsel have expended prodigious energy in preparing their briefs, neither addressed the threshold question of whether the order is appealable until invited to do so by this court.
Appellant contends: section 2025, subdivision (n) allows a party to suspend a deposition that is being taken in bad faith and seek a protective order; the notice of the deposition was defective and attempting to take the deposition nonetheless is bad faith; and even if that position is incorrect, sanctions should not have been imposed because counsel was acting in good faith under color of a statute.
It is first necessary to determine whether the sanction herein was imposed under section 128.5 or section 2025. The former is appealable (Rabbitt v. Vincente (1987) 195 Cal.App.3d 170, 173, 240 Cal.Rptr. 524), while, as we shall explain below, the latter is not. The minute order issued by the court did not specify which section it relied upon. In its spoken comments, the court did not refer to a specific section. However, the reporter's transcript reveals that 2025 was the only section mentioned during the course of the hearing. The moving papers of counsel made repeated references to sections 128.5, 2023, and numerous subdivisions of 2025 including subdivision (n). Section 2025, subdivision (n) allows the suspension of an oral deposition under certain circumstances and the imposition of sanctions against counsel for improper use of the provision and is clearly applicable to the instant matter.
Section 128.5, subdivision (c) specifically requires that an order "shall be in writing and shall recite in detail the conduct or circumstances justifying the order". The only order presented to us is the minute order of February 18, 1988. It does not contain any of the recitations required by section 128.5. " " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193; emphasis omitted.) As the court did not comply with the requirements of section 128.5, subdivision (c), we can conclude only that the court's order imposing sanctions was pursuant to section 2025, subdivision (n) for failure to make discovery.
In Kibrej v. Fisher (1983) 148 Cal.App.3d 1113, 196 Cal.Rptr. 454, a party appealed an order imposing sanctions for his failure to attend a deposition. The Court of Appeal
dismissed the appeal stating, at pages 1115-1116, 196 Cal.Rptr. 454:
The above cases all deal with sanctions imposed on a party. While we have found no cases that directly address the same issue with reference to discovery sanctions imposed on counsel currently representing a party, we note several cases which have touched on the subject. In In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1072, footnote 1, 210 Cal.Rptr. 73, the trial court ordered $2,500 sanctions against a party and her attorney for failure to appear at a hearing, failure to render a proper accounting, failure to adequately and properly respond to request for production of documents and failure to pay over rents and profits on real property as required by a prior order. The attorney was shortly thereafter relieved as counsel. At least some of the failures cited related to discovery matters. The court held that the order imposing sanctions was appealable. In In re Marriage of Lemen, (1980) 113 Cal.App.3d 769, 170 Cal.Rptr. 642, discovery sanctions were imposed on a nonparty witness and his attorney. In handling the appeal, the court did not address the issue of appealability. In any event Three cases lend support by dicta to a holding that discovery sanctions levied against counsel are nonappealable. The court in Corns v. Miller (1986) 181 Cal.App.3d 195, noted in footnote 1, at pages 197-198, 226 Cal.Rptr. 247, the Fuller and Lemen cases and stated that it considered even those orders nonappealable. In Huenergardt v. Huenergardt (1963) 218 Cal.App.2d 455, 32 Cal.Rptr. 714, the court stated at page 459, 32 Cal.Rptr. 714, ...
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