First District, Division 5 Affirms Discovery Sanctions Award Against Husband and Husband’s Attorney.
In In re Marriage of Moses and MacCallum, Case No. A121057 (1st Dist., Div. 5 Aug. 13, 2009) (unpublished), the appellate court affirmed joint sanctions of $2,000 assessed against husband and his attorney in a dissolution proceeding involving discovery abuses related to a deposition notice sent to wife when the dissolution was effectively concluded, with husband and his attorney giving conflicting reasons for its relevance. Although affirming the result, the decision does have an important reminder to litigants challenging a decision based on inadequate notice. Husband/his attorney claimed that the sanctions order was erroneous based on inadequate notice although attorney appeared and argued the merits, not asking for a continuance or demonstrating prejudice. The Court of Appeal, in sustaining the order, pointed out that husband/his attorney forfeited the inadequate notice argument by appearing and arguing the merits of the motion without asking for a continuance. (Carlton v. Quint, 77 Cal.App.4th 690.) So, if you are going to challenge notice, make sure that you request a continuance and don’t argue the merits to avoid the grim consequences of the waiver confronted by the appellants in the dissolution matter.
