Panel Upholds Sanctions for Asking Prohibited Question

Tuesday, May 24, 2011

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Panel Upholds Sanctions for Asking Prohibited Question

By a MetNews Staff Writer

The Fourth District Court of Appeal yesterday upheld monetary sanctions against a Santa Ana attorney for willfully violating a trial court ruling that counsel should not inquire into a particular area.

Div. Three concluded that Orange Superior Court Judge Glenda Sanders did not abuse her discretion in ordering the $1,500 penalty imposed on Daniel J. Callahan of Callahan & Blaine.

In her opinion for the appellate court, Justice Eileen C. Moore noted that Sanders had ruled, during an unrecorded sidebar conference, Callahan could not inquire of a witness why an employee of the defendant had sought to exclude a restrictive covenant from his labor agreement.

According to the trial transcript, Callahan proceeded to question the witness why the covenant was not in the employee’s agreement, and after obtaining a response, asked:

“Why did Mr. Greiling not want it in? Did he tell you?”

Sanders admonished Callahan in open court, outside the presence of the jury, that “I specifically and categorically instructed you not to ask the question, why did Mr. Greiling not want the restrictive covenant in his contract.”

Callahan apologized, then asserted:

“I must say, when I left that side bar it was fairly obvious I was not totally certain on what your ruling was.”

Sanders asked the two other lawyers appearing on the matter—one of them Callahan’s cocounsel—if they had understood her order. After they both responded in the affirmative and Sanders remarked to Callahan that:

“You are apparently the only one that didn’t understand plain English.”

He responded:

“Apparently not.”

Sanders eventually issued an order to show cause why sanctions should not be ordered, and following a hearing imposed $1,500 in sanctions pursuant to Code of Civil Procedure Sec. 177.5.

Moore concluded that under the circumstances presented in the record, Sanders’ decision was justified.

She explained:

“Clearly, when Callahan asked the question ‘Why didn’t Mr. Greiling not want it in?’ he violated the court’s order ‘not to ask the question, why did Mr. Greiling not want the restrictive covenant in his contract.’ That he added the words “did he tell you?” does not in any way diminish his violation.”

The justice also emphasized that it “is incumbent upon counsel to request clarification when the court issues an order counsel does not understand,” although it was “obvious from the record, the trial judge did not believe Callahan…since three of the four persons present understood the court’s order.”

Moore reasoned Callahan deliberately “opted to venture into the forbidden area and take his chances that an apology would cure a knowing violation of a court order.”

Joined by Justices Kathleen O’Leary and Richard M. Aronson, Moore went on to brush aside Callahan’s claims that Sanders was biased against him.

“We have combed the record and find nothing but well-reasoned, articulate, legally sound and courteous rulings from the court,” she said.

The case is Scott C. Moody, Inc. v. Starr Surgical Company, G043230.