Substantial Justification for Opposition Given Unsettled Law on Scope of Marital Privilege.
Plaintiff and her attorney were sanctioned $5,000 for unsuccessfully opposing a protective order motion brought by a third-party attempting to protect certain information from discovery under the marital privilege. The trial court thought the law clear on the issue and sanctioned plaintiff and her attorney $5,000 for losing their protective order motion opposition.
The appellate court reversed in Diepenbrock v. Brown, Case No. A132749 (1st Dist., Div. 3 July 31, 2012) (unpublished).
The reason was that the law was very unsettled on the scope of the marital privilege, with both winner and loser having cases on their side and the Rutter Group highlighting the uncertainty on the scope of the privilege. Under these circumstances, plaintiff and her attorney had “substantial justification” to oppose, meaning no sanctions were appropriate, notwithstanding the trial court’s belief the issue was clear in nature. Union Mut. Life Ins. Co. v. Superior Court, 80 Cal.App.3d 1, 15 (1978).