Tuesday, October 24, 2017
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C.A. Affirms Discovery Sanction Based on Rudeness at Confab
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed a $12,600 discovery sanction imposed on a defendant based on its attorneys at Norton Rose Fulbright resisting discovery in light of what they viewed as the current state of the law, with the decisive factor in the affirmance being what the appeals court viewed as nastiness of the firm’s attorney at a meet-and-confer session.
Justice Laurence D. Rubin of Div. Eight wrote the opinion, which came in a Private Attorneys General Act (“PAGA”) case, intended as a class action, alleging labor law violations on the part of a janitorial services company. The unpublished opinion supports a decision of then-Los Angeles Superior Court Judge Soussan Bruguera (since retired), who said in her minute order:
“For reasons stated in moving papers and articulated by counsel at oral argument, the Court rules…Plaintiff’s Requests for Sanctions are granted, as Defendant failed to provide substantial justification for refusing to provide full and complete responses to Plaintiff’s discovery requests.”
Unidentified Lawyer
Rubin considered not so much the refusal to provide discovery responses as he did Bruguera’s comments at oral argument concerning the failure of an unspecified Norton Rose attorney to engage meaningfully at a court-ordered meet-and-confer session and, instead, insulting and patronizing opposing counsel. The lawyers at trial, as well as on appeal, are Robert M. Dawson and Spencer Persson.
“Our review of the record reveals that the trial court’s decision to impose sanctions appears to be based primarily on defendant’s failure to engage meaningfully in the meet and confer process.” Rubin wrote. “The failure to meet and confer in a reasonable manner and in good faith constitutes a discovery abuse warranting sanctions….
“At the hearing on the motions to compel, the trial court made the point repeatedly that defense counsel was uncivil during the in-person meet and confer proceedings. The court stated that it was ‘so concerned’ about defense counsel’s behavior during the meet and confer, and that defense counsel wasn’t ‘very nice to anybody at the meet and confer.’ The court indicated that the incivility was uncalled for.”
Theory Termed ‘Idiotic’
Rubin quoted the Norton Rose lawyer as telling plaintiff’s attorney that a theory of hers was “idiotic.”
He recited:
“When plaintiff’s counsel asked for legal grounds for withholding training manuals, defense counsel responded condescendingly: ‘Okay. I’ll repeat myself because obviously you forgot what I said the last time.’ At times, defense counsel became patronizing with comments like, ‘You’re with me again? Okay.’ When plaintiff’s counsel tried to clarify defendant’s objections as to each discovery request, defense counsel told her: ‘Repeating the same question over and over again is not a clarification. It’s a waste of time amongst intelligent people.’ Defense counsel also stated: ‘The good thing is we have a court reporter, and if you don’t remember it, the record will.’ ”
The plaintiff’s lawyer made reference to the prospect of protecting the defendant’s current and past employees through a “Belaire-West notice.” That had reference to a 2007 Court of Appeal opinion providing for an opt-out notice being sent to potential plaintiffs in class actions who, if they disavowed a desire to be involved, would prevent their private information from being disclosed.
Rubin quoted the Norton Rose as saying:
“You’re seriously asking me now whether we would be willing to do a Belaire notice?...I’m sorry that I was unclear. Let me try to be clear. Now, if there’s something you don’t understand about what I’m saying, tell me so I can try to clarify for you. The Belaire notice procedure does not apply to PAGA. Do you understand what I’m saying now, or do I need to clarify it further?”
Chaney’s Opinion
Dawson was relying on Court of Appeal’s May 15, 2015 decision in People v. Williams authored by Justice Victoria Chaney of this district’s Div. One. She wrote:
“Petitioner’s proposed procedure, which contemplates jumping into extensive statewide discovery based only on the bare allegations of one local individual having no knowledge of respondent’s statewide practices would be a classic use of discovery tools to wage litigation rather than facilitate it. We conclude bare allegations unsupported by any reason to believe a defendant’s conduct extends statewide furnishes no good cause for statewide discovery.”
The California Supreme Court on Aug. 19, 2015, granted review in Williams, and the attorneys met and conferred on Nov. 16, 2015.
The California Supreme Court on July 13, 2017, reversed the Chaney’s decision, holding that plaintiffs in PAGA cases have broad discovery rights.
Purpose of Citation
“We understand defendant’s citation on appeal to Williams I as intending to demonstrate its good faith in opposing discovery but not to support the merits of its position,” Rubin said.
He was puzzled, however, by repeated references to the unprecedential order by Los Angeles Superior Court Judge Barbara Ann Meiers in an unrelated case.
Rubin said that the Court of Appeal’s opinion in Williams, aside from lacking precedential value once review was granted, “does not go as far as defendant suggests,” inasmuch as some discovery was permitted.
He noted that Bruguera found only one of several discovery requests to be overly broad.
The jurist counseled:
“We understand the law in this area was unsettled during the discovery process. But that is precisely why the meet and confer process was so important to an orderly resolution of plaintiff’s discovery demands during that very period. When the law is settled, perhaps there is less need for protracted meet and confer proceedings since by definition, the law more decisively supports the position of one party or the other. Moreover, it is the obligation of a party refusing discovery to have some positive legal basis, not just a vacuum, for its position.”
The case is Hall v. Cushfield Maintenance West Corp., B272137.
Attorneys on appeal were Edwin Aiwazian, Arby Aiwazian and Elizabeth M.R. Parker of Lawyers for Justice for Hall and Robert M. Dawson and Spencer Persson for Cushfield.
In response to a request for comment, Edwin Aiwazian said:
“Objection: The Opinion Speaks for Itself. Other than our objection to your question, we have no comment.”
Dawson did not respond to a request for comment.
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