Monday, December 12, 2016
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C.A.: Can’t Sanction Lawyer for Advising Client Not to Answer Questions at Debtor Examination
By a MetNews Staff Writer
Sanctions may not be imposed on an attorney for advising his or her client not to answer specific questions at a judgment debtor examination, the Fourth District Court of Appeal said Friday.
The decision came in Smith Bros. Construction v. T.S. Stone and Title, D069212. Presiding Justice Judith McConnell of Div. One wrote the opinion, which was not certified for publication.
It relieves attorney William K. Brewer of a $5,070 sanction imposed by San Diego Superior Court Judge Joan M. Lewis. A sanction in a like amount imposed on the judgment debtor was not a subject of the appeal.
The sanction was sought under Code of Civil Procedure §2023.030, which says, at the start:
“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:
“(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney s fees, incurred by anyone as a result of that conduct.”
McConnell wrote:
“Section 2023.030 is part of the Civil Discovery Act (Act) (§ 2016.010 et seq.). The Act applies to discovery aiding the enforcement of a money judgment only to the extent provided in sections 708.010 through 708.030. (§2016.070.) These sections provide for discovery through written interrogatories (§708.020 subd. (a)) and inspection demands (§708.030, subd. (a)). These sections do not address judgment debtor examinations. Therefore, the Act and its associated remedies do not apply to judgment debtor examinations and the court had no authority under the Act to sanction Brewer for his conduct at [the] judgment debtor examination.”
In appealing, Brewer expressed uncertainty as to whether the sanction was imposed under §2013.030 or §708.170. McConnell said it could not have been imposed under the latter section because a sanction was only sought under the former.
She advised in a footnote, however:
“We nonetheless note section 708.170 authorizes sanctions against a person required to appear at a judgment debtor examination, but not against the person’s attorney.”
Brewer represented himself and Meyers Fozi and Neal S. Meyers acted for the judgment creditor.
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