Appellate Panel Does Not Condone Sanctioned Conduct, But Found No Discovery Law Basis To Sustain the Award.
As we have indicated before, attorney’s fees awards—whether mundane or imposed as a sanctions—must either have a contractual or statutory basis, depending on the type of award. The next case illustrates, even though the discovery conduct was found distasteful in nature, the lack of a statutory basis doomed affirmance of the sanctions award.
Yaffe v. Mendelsohn (Krane & Smith), Case No. B209926 (2d Dist., Div. 1 Nov. 17, 2009) (unpublished) involved a trial court award of $6,000 in monetary sanctions against plaintiff’s attorneys in connection with a third-party trial subpoena to a certain accountant. Briefly summarized, plaintiff’s counsel sought to subpoena for trial sensitive financial information without serving any privacy on the impacted consumers (third parties not being sued). Although accountant’s attorney served objections to the subpoena, plaintiff’s attorney threatened to issue a bench warrant if the accountant did not appear at trial. In fact, accountant did go to trial but asserted that income tax statements were privileged. The trial court ruled the trial subpoena invalid without notice to the impacted third-party consumers, with plaintiff’s counsel excusing the accountant after she had sat around trial for 4 hours. The third parties then filed a sanctions motion against plaintiff’s attorneys to recoup $8,702.50 in fees and costs, with the trial court awarding them $6,000 in sanctions.
Although strongly disapproving of the action of certain of plaintiff’s counsel, the appellate court reversed. The main reason was that it could not locate any statutory basis to justify imposition of the sanctions against plaintiff’s attorneys. Code of Civil Procedure sections 1985-1987 only allowed for sanctions where a party successfully brought or opposed a discovery motion, something that was not done in this particular matter. Because no motion to compel or to quash was filed, the court did not have the inherent power to impose sanctions unless authorized by statute. Although suggesting that contempt might have a proper punishment, the trial court did not engage in the proper due process safeguards to sustain the sanctions order under this rubric.
Trial Discovery Sanctions: Prisoner kneeling on chains, thumbs, supporting arms.
Moukden, China. Library of Congress. c1906.