Second District, Division Five Reverses Discovery Sanctions Imposed
Against Client and Its Law Firm.
The next case is a good reminder that discovery
sanctions motions need to be explicit in mentioning the persons against whom the
sanctions are directed in the actual motion. Failure to be precise in this
context may mean that an actual sanctions award is reversed by the appellate
court. That is exactly what happened in the case we next
review.
In The
Capital Gold Group v. Michael Thomas Media Group (Skousen Law), Case No.
B203692 (2d Dist., Div. 5 Oct. 14, 2008) (unpublished), a client and its law
firm were assessed with monetary sanctions for misuse of the discovery process.
Because the notices of motions requesting sanctions failed to identify the
persons against whom sanctions were sought, the appellate court found the
notices were defective and reversed total sanctions of $8,790 ordered payable by
client and law firm ($5,250 jointly and severally against both and an additional
$3,540 against client).
The fundamental defect was that the notices of motions for both
sanctions requests failed to identify the person, party, or attorney against
whom the monetary sanctions were being sought, even though the supporting
memoranda did provide some added clarity. However, the clarity in the
supporting briefs was not enough.
Code of Civil Procedure section 2023.040 provides that the notice of a
sanctions motion in a discovery context must "identify each person, party, and
attorney against whom the sanctions is sought, and specify the type of sanction
sought." Citing Corralejo v. Quiroga, 152 Cal.App.3d 871, 874 (1984) and Sole
Energy Co. v. Hodges, 128 Cal.App.4th 199, 207-210 (2005), the appellate panel
concluded that it was mandatory that the putatively sanctioned party or attorney
be identified in the notice of motion. Because neither was identified in this
case, the orders imposing sanctions "were unauthorized and must be reversed,"
having "not compl[ied] with due process and the express notice requirements of
Code of Civil Procedure section 2023.040."
Stern message from this case: make sure your notices of motion clearly
delineate against whom sanctions are requested in order to survive on appeal.
Even under the deferential abuse of discretion standard, appellate courts will
find such an abuse when the transgression falls outside the confines of clear
legal dictates (such as section 2023.040 requirements).