Discovery: $105,492.25 In Discovery Sanctions Against Defendant And Its Attorney Sustained For Evasive Responses And Inordinate Meet And Confer Broken Promises

Trial Court Has Some Interesting Discussion of Trees Along the Way.

     DK Art Publishing, Inc. v. City Art, Inc., Case No. B229122 (2d Dist., Div. 5 Oct. 11, 2012) (unpublished) is a sober reminder that game playing in discovery proceedings can result in serious sanctions that will indeed be affirmed upon review by an appellate tribunal.

     In this one, a discovery referee made recommendations that were for the most part followed by a trial court after observing that plaintiff did not get requested information from defendant City Art after one year of meeting/conferring, inclusive of 55 meet/confer letters, two hours of in-person sessions, seven telephonic sessions lasting over 4 hours, and multiple withdrawn motions to compel by plaintiffs based on broken promises. In total, the trial court awarded $105,492.25 to plaintiff and against defendant City Art and its attorney, not surprisingly prompting an appeal.

     After dismissing challenges to the discovery referee’s disclosures and the appointment process, the appellate court affirmed the discovery sanctions. The discovery sanctions were justified under Code of Civil Procedure section 2023.030(a), which authorizes sanctions for evasive responses and counterproductive meet/confer activity. The appellate court found no substantial justification for the defense activities during discovery. Finally, defense counsel was liable for sanctions under Ghanooni v. Super Shuttle of L.A., 20 Cal.App.4th 256, 261 (1993) because he was an active participant in the discovery abuse and the case does not narrowly hold that he was only liable for advice given to the client in the discovery context.

     BLOG UNDERVIEW–We especially liked some of the trial court’s comments made during the discovery sanctions proceedings. Here you go. “Said the court: ‘There’s an old saying that a friend of mine who lives down in the south, in Louisiana, said. “If you don’t want my peaches, don’t shake my tree.” [¶] You had a little tree-shaking going on here, and certainly in the early stages. And apparently it has become now a case that has well exceeded George Washington and any given cherry tree. [¶] It is most unfortunate. It is absolutely most unfortunate. However, I think the defendants brought it on. Not you, present counsel, but I believe the defendants and their counsel are all responsible for bringing us to the point. [¶] The evasiveness and the failures that were initiated back in 2008 and which have continued since the appointment of the referee were stunning.”

Design drawing for stained glass window showing George Washington in uniform, with rays of divine light, and icons: rifle, cherry tree, axe, Masonic pyramid/all-seeing-eye, Great Seal of the United States; with text "One was a soldier".  Library of Congress.