Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. LC084653 James Kaddo, Judge. Reversed.
Morris & Associates, James G. Morris, for Appellant.
Law Offices of Joseph C. Watson and Joseph C. Watson, for Respondent.
RUBIN, J.
Attorney Bayleigh Jordan Pettigrew appeals from an order imposing discovery sanctions of $2,500 against her after her client failed to appear for her deposition. We reverse the order because there is no substantial evidence that Pettigrew was complicit in her client’s deposition no-show.
FACTS AND PROCEDURAL HISTORY
Bayleigh Jordan Pettigrew represented Lisa Scarola in an action arising from a dispute between the officers and shareholders of Dedicated Talent Agency, Inc., dba The Jerry Pace Agency. Gerald V. Pace and Marcia Robbins sued Scarola, alleging that Scarola stole business records and other items from Dedicated, and was diverting client funds to a new talent agency Scarola had started in New York. Scarola cross-complained against Dedicated.
Scarola’s cross-complaint is not in the record. Her responses to form interrogatories are, however, and they refer to various forms of misconduct, including the theft of items belonging to Scarola, breach of contract, and defamation.
Dedicated was represented by lawyer Joseph C. Watson in connection with Scarola’s cross-complaint. This appeal arises from Watson’s efforts to depose Scarola, Pettigrew’s assertion that Scarola was now living in New York and would have to be deposed there, and Scarola’s failure to appear for her New York deposition after Watson had travelled to New York. The dispositive issue is whether there is substantial evidence in the record that Pettigrew advised Scarola not to attend the deposition, as required by Code of Civil Procedure section 2023.030, subdivision (a).
Pace and Robbins, as individuals, were represented by separate counsel in connection with their complaint against Scarola.
On June 12, 2009, Watson e-mailed Pettigrew to let her know he was sending out a deposition notice for Scarola, and asked her for available dates around June 29. A deposition notice for June 30 in Los Angeles was served that day. On June 15, Pettigrew replied that Scarola was in New York and would not be back until sometime after July 4. Pettigrew asked if the deposition could be scheduled for a date in mid-July. Later that day, Watson replied that he could do so, and offered several dates between July 8 and 14. When Watson did not hear back from Pettigrew, he e-mailed her again on June 24, stating that the deposition was still set for June 30, and asked that she select one of the dates proposed in his June 15 e-mail.
On June 26, Pettigrew e-mailed Watson to let him know that due to the poor health of Scarola’s aunt, along with other obligations, Scarola now planned to “stay at her residence in [New York] indefinitely.” Pettigrew said she could either let Watson know when Scarola would next be in Los Angeles, or depose her in New York, either in person, or by phone or videoconference. Pettigrew concluded by letting Watson know that Scarola had no immediate plans to return to Los Angeles and would not be available on June 30. Watson responded with three e-mails. The first said that Pettigrew’s proposal was unacceptable, and that Watson planned to go forward on June 30 as scheduled and bring a motion to compel if necessary. The second threatened a complaint by Dedicated against both Scarola and Pettigrew. The third said that because Pettigrew had breached an agreement concerning Scarola’s deposition, Watson would bring a motion to compel and seek sanctions. Pettigrew responded with an e-mail that claimed she had told Watson during earlier settlement negotiations that Scarola was returning to her New York residence. Although Scarola would not attend the June 30 deposition in Los Angeles, she agreed to be deposed in New York by videoconference or other means, or would come to Los Angeles if Dedicated paid her travel expenses.
On June 27, Watson e-mailed Pettigrew’s firm to complain that he had just received Scarola’s interrogatory responses, signed under oath just the day before, which said Scarola’s residence was in Los Angeles, and made no mention of New York. Even so, Watson said he would notice Scarola’s deposition for July 10 in New York, then move to recover his costs at a later time. Watson then sent out a deposition notice for July 10 in New York, even though Pettigrew had not yet selected a date from those Watson had proposed in his earlier e-mail. On June 30, Pettigrew replied that she had forwarded the deposition notice to Scarola, who was trying to arrange her schedule so she could appear on July 10. However, Pettigrew stressed that this was not an agreement to appear on that date, because Scarola was unsure whether she would be available then. Pettigrew also said that if the deposition went forward, she (Pettigrew) would appear by phone. Watson replied that he would be unable to change the deposition date unless Scarola paid in advance any costs incurred for doing so, such as flight cancellation fees.
Shortly before 5:00 p.m. on Tuesday, July 7, Pettigrew sent an e-mail to Watson stating that she had finally heard back from Scarola, who “is not able to make it, ” and asked if it were possible to reschedule. Watson replied by e-mail about an hour later, saying it could not be rescheduled with such late notice. “I fly to New York tomorrow and have meetings scheduled to prep for the deposition on Thursday.” Watson complained that Scarola had been on notice for some time “that costs would be incurred to accommodate her false claim that the deposition must be taken in New York.” Because Watson had cleared his schedule for the deposition, he would not agree to change the date. Accordingly, he “will appear on Friday as noticed. I will create a record if [Scarola] fails to appear. I immediately thereafter will file a Motion for Sanctions, including attorney’s fees for all travel time, etc., costs of the flight and accommodations, etc.” Watson and Pettigrew spoke by phone soon after. According to Pettigrew, she told Watson that Scarola would not appear for the deposition. Watson became angry, and threatened to seek sanctions. According to Pettigrew, she did not want to take part in such a hostile exchange, said “thank you, ” and hung up the phone. According to Watson, when Pettigrew told him Scarola could not make it and asked to reschedule, he replied that he would not reschedule. Pettigrew’s only response was to say “thank you” and hang up the phone. Watson denied that Pettigrew told him Scarola would not appear for the deposition.
Watson travelled to New York and, when Scarola did not appear, went on the record to state his version of the events leading to that point. As part of that, he read aloud his e-mail exchanges with Pettigrew. Distilled, Watson said Pettigrew and Scarola had been uncooperative about agreeing to a deposition date, that there was no justification for insisting on New York as the deposition location, that he had warned Pettigrew he would incur nonrefundable travel costs if the July 10 deposition were cancelled for some reason, and that Pettigrew “never said [Scarola] wouldn’t be here, you said she can’t make it.”
Pettigrew, who appeared by phone, said her warning that Scarola was “not able to make it... [is] a pretty obvious statement. If somebody is not able to make it, I didn’t say it’s something she thinks she might not be able to do, I said, ‘She’s not able to make it.’ ” Despite that, Pettigrew told Watson, “you decided to fly out to New York anyway....” Pettigrew alluded to difficulty getting Scarola to cooperate with her in prosecuting the cross-complaint. She did not learn of Scarola’s New York address until after completing the interrogatory responses and informed Watson as soon as she did. Pettigrew did not learn Scarola could not appear on July 10 until July 7, and let Watson know about that as soon as she did. When Pettigrew said she was not in charge of her client, Watson said “you should have client control.” Pettigrew replied she was “doing all I can do as an attorney.” She had been unable to get an answer from her client and had done everything she could to “facilitate this deposition and that’s all I can say about it.” Pettigrew said that after July 7 she advised Scarola “to show up or see if she could get here even though she told me she could not make it.” When Watson accused Pettigrew of abusing the discovery process by delaying Scarola’s deposition, Pettigrew objected that she had done everything she could to comply and get a deposition date. Pettigrew said she “did everything within my power to try to see if there was some way she could get to the deposition today, ” and had “strongly advised [Scarola] to see if there was some way she could show up.”
When Watson returned to Los Angeles, he filed a discovery sanctions motion against both Scarola and Pettigrew, asking that the court dismiss Scarola’s cross-complaint and award Dedicated more than $18,000 in expenses for his trip to New York. The motion was based on Scarola’s and Pettigrew’s purportedly unjustified stance that the deposition be taken in New York, Pettigrew’s alleged failure to tell Watson that Scarola would not appear on July 10, and Scarola’s failure to appear. The motion did not acknowledge or address the statutory requirement that Pettigrew must have advised Scarola’s misuse of the discovery process as a predicate to awarding sanctions against Pettigrew. (Code Civ. Proc., § 2023.030, subd. (a).) Attached as an exhibit to the motion was a July 21 declaration by Pettigrew that she had filed as part of a motion to be relieved as Scarola’s lawyer. In it, Pettigrew said Scarola had refused to cooperate with her, pay attorney fees when due, or follow her advice about case preparation. Pettigrew also declared that she had communicated with Scarola almost weekly, but her attempts to reach Scarola had been largely ignored since July 16.
Pettigrew opposed the motion on behalf of herself and Scarola. Because no trial date had yet been set, Pettigrew said there was no urgency to take Scarola’s deposition. Watson unilaterally set the deposition for July 10 without knowing whether Scarola could appear on that date, then insisted on flying to New York even after Pettigrew told him on July 7 that Scarola could not be there. Finally, Pettigrew contended there was no evidence she had advised Scarola not to appear, and said in a declaration that she urged Scarola to attend on July 10.
We presume Pettigrew represented Scarola at that point because Pettigrew’s motion to be relieved as counsel was granted several weeks later, on October 26, 2009.
Watson’s reply points and authorities finally addressed the issue of whether Pettigrew had advised Scarola’s discovery misuse. He contended Pettigrew had advised the misuse because she: (1) insisted that the deposition take place in New York even though she did not have Scarola’s New York address; and (2) allowed the deposition to go forward even though she knew she was having client communication and control problems.
At the hearing on the sanctions motion, the court denied Watson’s request to dismiss the cross-complaint, and instead imposed monetary sanctions of $2,500 and ordered Scarola to appear for her deposition upon 30 days notice. As to whether joint monetary sanctions were warranted against Pettigrew, the court said that even though its tentative ruling was to impose them, “I had a question mark on my notes, because it seemed to me that she did everything required of her, even beyond that.... I wasn’t convinced that it should be against counsel. I’m inclined to make it just against [Scarola].”
Watson contended it was “a little too convenient” for Pettigrew to raise a client control issue until she wanted to be relieved as counsel, and argued that Pettigrew should have raised the issue earlier. When the court pointed to evidence that Pettigrew told Watson three days before the deposition that Scarola was unavailable, Watson replied that he was set to fly to New York the next morning, making the notice too late. The court then said that its tentative ruling would stand. When Pettigrew said she did not know Watson planned to fly out that early, the court pointed out the five hour flight time and the time zone differential. Pettigrew said she informed Watson as soon as Scarola told her that Scarola could not attend the deposition, but the court ruled that “[n]otice [was] insufficient, ” and imposed the monetary sanctions jointly against Pettigrew and Scarola. The trial court’s minute order states that the sanctions were imposed jointly “as reasonable attorneys fees for failing to appear for the deposition....”
Pettigrew contends the trial court erred in part because there is no evidence she advised any misuse of the discovery process.
Dedicated contends the trial court erred by awarding it sanctions of only $2,500, and asks that we award it the full amount requested of more than $18,000. Because Dedicated did not cross-appeal from the sanctions order, we will not reach that issue.
DISCUSSION
Misuses of the discovery process subject to sanctions include failing to respond or submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) Monetary sanctions for misuse of the discovery process may be imposed against the “one engaging in the misuse of the discovery process, or any attorney advising that conduct....” (§ 2023.030, subd. (a).) “An attorney may only be penalized under this provision for advising disobedience. It is not enough that the attorney’s actions were in some way improper and contributed to” the misuse of the discovery process. (Corns v. Miller (1986) 181 Cal.App.3d 195, 200 (Corns).) The burden of proving that no such advice was given rested with Pettigrew. (Id. at pp. 200-201.) We review a trial court’s discovery sanctions order under the deferential abuse of discretion standard. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) It is an abuse of discretion to impose sanctions against counsel if the evidence shows she is blameless. (Weinkauf v. Superior Court of Tuolumne County (1966) 64 Cal.2d 662, 665.)
All further section references are to the Code of Civil Procedure.
The court in Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256 (Ghanooni) applied these principles to reverse a sanctions order against a personal injury plaintiff’s lawyer based on the client’s failure to appear for a properly noticed physical examination by a physician selected by the defendant. The court held that sanctions against the client were proper because the client’s fear of harm from x-ray exposure was unwarranted. Unrebutted declarations from counsel, along with letters from plaintiff’s lawyer to the client, showed that plaintiff’s lawyer tried to convince the client to submit to the examination. As a result, there was no evidence to support the sanctions order against the lawyer. (Id. at p. 261.)
The Ghanooni court did not describe the contents of those letters and declarations.
Just as in Ghanooni, we see no evidence in the record that Pettigrew advised Scarola not to appear for the deposition. It is undisputed that Pettigrew had an uncooperative and uncommunicative client, a fact acknowledged by both Dedicated and the trial court. The transcript from the aborted deposition session shows Pettigrew protesting several times that she had urged and advised Scarola to attend the deposition, and she stated the same thing in her opposition declaration. Pettigrew was later relieved as Scarola’s counsel based on a declaration stating that Scarola refused to cooperate with Pettigrew or follow her advice about preparing Scarola’s case. Nothing in the record contradicts this evidence.
Dedicated contends sanctions were warranted because Pettigrew advised Scarola to insist on having the deposition taken in New York even though Pettigrew and Scarola both signed Scarola’s interrogatory responses listing only a Los Angeles residence, and Pettigrew admitted she did not know Scarola’s New York address. Assuming for the sake of argument only that Pettigrew’s insistence on holding the deposition in New York was unjustified, Dedicated’s remedy was not to go ahead with the deposition in New York and then later contest its validity in order to recover Watson’s travel expenses. Instead, its only recourse was to promptly seek a protective order that the deposition either be held in Los Angeles, or that Scarola pay Watson’s fees and expenses for travelling to New York. (§ 2019.030, subds. (a), (b); Snyder v. Superior Court (1970) 9 Cal.App.3d 579, 586 [interpreting former § 2019, subd. (b), the statutory predecessor of § 2019.030].) By agreeing to hold the deposition in New York, Dedicated waived as an issue the propriety of that locale.
Pettigrew gave Dedicated the option of deposing Scarola when she next returned to Los Angeles, or of deposing her in New York by way of videoconference. We also note that Watson set the July 10 deposition date without knowing whether Scarola was available on that day, and was told by Pettigrew that she was waiting to hear from Scarola whether Scarola could attend on that date.
As Pettigrew points out, Scarola’s dual residence in New York should not have been too big a surprise, because Pace and Robbins alleged in their complaint that Scarola improperly changed Dedicated’s address to an address of Scarola’s in New York, and was wrongfully having client funds “sent to [Scarola’s] New York address.”
Dedicated also contends that the sanctions were warranted by Pettigrew’s other conduct: (1) her failure to tell Watson that Scarola would not appear for the July 10 deposition; (2) her failure to do more than merely forward the deposition notice to Scarola; (3) waiting too long to hear back from Scarola about Scarola’s ability to appear on July 10; (4) her failure to alert Watson that she was having problems with Scarola; and (5) her failure to seek a protective order to stop Watson from flying to New York. We disagree.
Although section 2023.010 lists several types of conduct that constitute misuse of the discovery process, the statute also provides that misuse of the discovery process is not limited to the enumerated acts. We therefore assume for the sake of argument that a lawyer who knew his client would not appear for a scheduled deposition, and failed to notify opposing counsel of that fact, is subject to discovery sanctions.
As to the first of these contentions, under Watson’s version of events, Pettigrew told him Scarola could not make it, and asked about rescheduling. When Watson told Pettigrew he would not reschedule, she said “thank you” and ended their conversation. We believe it is unreasonable to interpret that conversation as a statement that Scarola would attend the deposition in light of Watson’s refusal to reschedule. Pettigrew told Watson that Scarola could not be there, which is tantamount to saying she would not be there. Pettigrew’s response of “thank you” to Watson’s refusal to reschedule cannot be construed as anything other than a mild display of sarcasm and frustration. Nor is there any evidence to contradict Pettigrew’s assertion that Scarola did not tell Pettigrew that Scarola could not attend until July 7, and that Pettigrew contacted Watson right after learning that.
Scarola’s failure to notify Pettigrew until July 7 is consistent with Scarola’s apparent failures to cooperate and communicate with Pettigrew.
As to the second and third contentions, as previously discussed, it is undisputed that Pettigrew did more than just forward the deposition notice to Scarola. She urged and advised Scarola to attend the deposition, but Scarola was uncooperative and uncommunicative with Pettigrew.
As to the fourth, we are aware of no obligation to inform opposing counsel of a client control problem. Doing so under most circumstances would most likely breach a lawyer’s ethical duty to keep confidential any communications with a client. Furthermore, we cannot say from this record that the extent of the problem was fully apparent to Pettigrew before the deposition debacle.
As to the fifth, we have already discussed that Dedicated should have moved for a protective order immediately upon learning that Scarola claimed she lived in New York and wanted to be deposed there. We do not see how, either procedurally or practically, Pettigrew could have moved for a protective order to stop Watson from travelling to New York the next morning.
In short, although sanctions were warranted against Scarola, there is no evidence that Pettigrew committed or advised any misuse of the discovery process.
DISPOSITION
The order imposing discovery sanctions as to Pettigrew is reversed. Pettigrew shall recover her appellate costs.
WE CONCUR: BIGELOW, P. J., GRIMES, J.