“Walking Out and Not Coming Back” Is Not a Legitimate Option.
The defense in Fletcher v. HPN Holdings, Case No. F064864 (5th Dist. Apr. 8, 2014) (unpublished) was sanctioned $6,000 under CCP §2023.030(a), inclusive of attorney’s fees for bringing the motion to compel and arguing it, for failing to honor an agreement to take PMK depositions past the discovery cut-off. (This agreement was memorialized through renewed deposition notices and a trial court continuance stipulation.) However, at the time of the PMK depositions, defense counsel was bothered by the scope of the deposition and both he/deponent walked out of the deposition. Both the lower and appellate courts were not impressed with this conduct, determining that “walking out and not coming back, and not appearing at the other scheduled depositions, were not among [the defense’s] legitimate options.” Also, defense counsel failed to properly suspend the deposition to move for a protective order.
Besides affirming the sanctions order, the appellate court denied the defense effort to dismiss the appeal after oral argument—determining the opinion should be issued for the education of the bench and the bar. So, if you are going to seek a dismissal, do it earlier and do it much earlier than after oral argument!
BLAWG BONUS: Eddie Kendricks – Keep on Truckin’.