Misuse Of The Discovery Process Does Not Have To Be Willful Before Monetary Sanctions May Be Imposed, But Punishment For Contempt Rests Upon A Clear, Intentional Violation.
We previously discussed the next case in our February 24, 2017 post. At that time, the 2/3 DCA had dismissed minor’s appeal from an order that her attorney pay discovery sanctions to opposing party in the form of attorney’s fees and costs as the minor was not the aggrieved party. The California Supreme Court reversed and remanded – holding the record was clear that minor’s attorney intended to participate in the appeal.
In K.J. v. Los Angeles Unified School Dist., Case No. B269864 (2d Dist., Div. 3 November 11, 2020) (unpublished), the trial court determined that plaintiff minor’s attorney violated a discovery order – for which it found him guilty of contempt and sentenced him to 24 hours in county jail and a $750 fine. Additionally, the trial court stated in its order that defendant could seek fees and costs associated with the contempt hearing.
Meanwhile, attorney filed a writ petition with the 2/3 DCA to challenge the contempt order, and the appellate court issued an order staying enforcement of the contempt order pending further order of the 2/3 DCA. Attorney ultimately prevailed on the contempt order – with the appellate panel concluding substantial evidence establishing beyond a reasonable doubt that attorney had willfully disobeyed the trial court’s order did not exist.
Before that determination was made, defendant moved for monetary sanctions of $100,000 from attorney and his law office, made up of $52,247.41 in fees and costs, and $47,752.59 in sanctions “to deter future misconduct” – with the trial court awarding $16,111 in discovery sanctions. Attorney appealed – unsuccessfully challenging the sanctions order as void because it violated the temporary stay and, alternatively, as an abuse of discretion because it included fees and costs related to the contempt proceeding to which he ultimately prevailed, and was not authorized by statute because his client submitted to a neuropsychiatric exam as ordered.
The 2/3 DCA found no violation of the temporary stay. The temporary stay applied only to the contempt order, which did not include an award of monetary sanctions nor a decision on the merits of such a motion. The trial court made clear that the monetary sanctions order was being issued for an obstruction of the discovery process, and was not dependent on the ultimate outcome on attorney’s contempt appeal. The appellate panel agreed. A contempt order requires a finding of willfulness, but a monetary sanctions order does not. As a result, the trial court reasonably could find that although a party was not guilty of contempt, it was properly assessed monetary sanctions for misusing the discovery process. (Ellis v. Toshiba American Information Systems, Inc., 218 Cal.App.4th 853, 878 (2013).)
The panel also found no abuse of discretion. It was unable to conclude that the trial court awarded fees associated with the contempt hearing as the record did not clearly demonstrate whether the award included fees related to the contempt hearing, and the trial court awarded defendant only a fraction of the fees it sought. As to the statutory authority to issue sanctions, the 2/3 DCA concluded “misuse” of the discovery process is not limited to a failure to appear at a court-ordered examination, but also may include an attorney’s actions that influence his client not to fully participate in such an examination after being ordered by a trial court to do so – for which the trial court has broad discretion to issue sanctions.