C.A. Affirms Discovery Sanction Imposed on Actress Amber Heard

Friday, December 14, 2018

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C.A. Affirms Discovery Sanction Imposed on Actress Amber Heard

By a MetNews Staff Writer

Above is a poster promoting the movie, “London Fields.” The Court of Appeal has held that actress Amber Heard, star of the film, was appropriately sanctioned for refusing to appear at a deposition, rejecting her contention that she could not have been guilty of such a refusal because no specific date had been set following cancellation of a deposition based on her unavailability. The appeals court said her lawyer dodged requests for a re-setting.

The Court of Appeal for this district has affirmed a $6,850 discovery sanction imposed on actress Amber Heard for an unreasonable refusal to make herself available for a deposition in an action against her by the producers of the universally-panned mystery thriller “London Fields,” released Oct. 26.

Nicola Six Limited, which owns the rights to the film, on Nov. 21, 2016 sued Heard—who stars as clairvoyant femme fatale Nicola Six in the adaptation of the 1989 novel of the same name—for allegedly breaching her contract by failing to promote the movie at the 2015 Toronto International Film Festival where the film was scheduled to premier on Sept. 18, 2015.

That premier was cancelled in light of rookie director Mathew Cullen having filed a Los Angeles Superior Court lawsuit against the company on Sept. 15 alleging that it denied him the right to make the final cut and failed to pay him. It was asserted in the complaint that the final version contained “incendiary imagery evoking 9/11 jumpers edited against pornography, as well as juxtaposing the holiest city in Islam against mind-control” which “[n]o cast or crew member” agreed to, nor did he or his production company.

The subsequent Los Angeles Superior Court complaint against Heard, which was not related with Cullen’s action, alleges that she was Cullen’s co-conspirator in sabotaging the film.

Agreement to Reschedule

During discovery, the plaintiff noticed Heard’s deposition for May 4, 2017. The actress’s attorney explained that Heard was in Australia filming a picture, and the parties agreed to take the May deposition off calendar and reschedule.

Despite repeated attempts to secure an agreed-upon date, the plaintiff was unable to gain opposing counsel’s cooperation. It eventually sought an order to compel the deposition, which Los Angeles Superior Court Judge Lisa H. Cole granted on Dec. 1, 2017.

Cole ordered the sanctions a month later, finding that “Heard was uncooperative and refused to sit for deposition or unreasonably obstructed attempts to depose her.”

Siegel’s Opinion

The Court of Appeal’s affirmance came Wednesday in an unpublished opinion by this district’s Div. Five, authored by Los Angeles Superior Court Judge Laura Seigle, sitting on assignment. She rejected Heard’s argument that because the May deposition was taken off calendar, there was no deposition that had been set, hence no deposition at which Heard refused to appear.

Seigle wrote:

“Plaintiff did not withdraw its deposition notice. To accommodate Heard, plaintiff agreed to take off the May 4, 2017, date and reschedule for another time. The record reveals substantial evidence that Heard then refused without justification to provide dates when she would appear for a deposition and ignored plaintiff’s attempts to reschedule the deposition….By refusing to provide dates or respond to plaintiff’s attempts to identify available dates, Heard failed to appear for a deposition after being properly served with a deposition notice, necessitating a motion to compel before she finally offered dates.”

Meet and Confer

Nicola Six Limited argued that Cole should not have heard the motion to compel a deposition because its lawyer failed to meet and confer with Heard’s attorney before the motion was filed.

Code Civil Procedure §2025.450 provides that a motion to compel attendance at a deposition “shall be accompanied by a meet and confer declaration under Section 2016.040.” That section says:

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

Siegel said the record does not support the plaintiff’s position that the attorneys did not meet and confer, reciting:

“On May 24, 2017, June 29, 2017, July 31, 2017, and August 28, 2017, plaintiff’s counsel asked Heard’s counsel for available deposition dates with no meaningful response.”

The case is Nicola Six Limited v. Heard, B288209.

Eric M. George, Keith J. Wesley and Jeffrey C. Berman of Browne George Ross in Century City represented Heard; there was no appearance by the plaintiff.

Related Events

The parties settled the underlying lawsuit and it was dismissed on Sept. 26.

“London Fields” has a zero-percent “fresh” rating on the Rotten Tomatoes website. The Los Angeles Times called it “aggressively awful.”

Various lawsuits have been filed in connection with the film, including one in which Heard complained in 2017 that nude scenes, using a double, were ascribed to her character, though such an imputation to her was not contemplated by her contract. That action was settled in September.

Cullen’s action and the cross-complaint against him are pending before Los Angeles Superior Court Judge Bobbi Tillmon.