Wednesday, July 18, 2018
Discovery Sanctions Reversed, Supporting Papers Untimely—Court of Appeal
By a MetNews Staff Writer
A law firm’s challenge to the discovery sanctions awarded against it was successful yesterday when the Court of Appeal for this district held that even though the notice of a motion to compel had been served within the 60-day statutory period the motion was untimely because the supporting papers were not served until much later.
Justice Victoria G. Chaney wrote the published opinion for Div. One, which reverses the award of $7,200 ordered by Los Angeles Superior Court Judge Nancy L. Newman against Resch Polster & Berger (“RPB”), a law firm in Los Angeles which represented the underlying plaintiff for a portion of discovery. In it, she clarifies the proper construction of several Code of Civil Procedure sections relating to the timing of motions.
The defendants, Isaac Blumberg, Eytan Ribner, and the Beverly Hills company Blumberg Ribner, Inc. (referred to collectively by Chaney as “BRI”), served the notice of motion to compel after a deposition taken by the plaintiff. The notice was served within the 60-day period required by §2025.480(b), but the supporting papers were not served until 15 days before the hearing on the motion was scheduled.
“BRI requested $40,000 in sanctions and did not alert RPB to that amount until 15 court days before the sanctions hearing,” Chaney explained. “RPB received no notice of its exposure until it could take no mitigating action or even substantively oppose BRI’s motion.”
Timing of Motion
She noted that §1005.5 provides that a motion is “made upon the due service and filing of the notice of motion,” but rejected the defendants’ contention that notice alone suffices. She pointed to §1010, which states:
“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based. If any such paper has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice.”
Chaney explained that this language clearly requires both notice and supporting papers to be served within the statutory timeframe. She pointed out that “the plain language of section 1010” does not “allow for BRI’s interpretation that a notice of motion and motion alluding to other papers but not attaching them somehow satisfies section 1005.5.”
The defendants argued that such an interpretation of §1010 would conflict with §1005(b). That section says:
“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”
“We disagree with BRI; we see no conflict between sections 1005 and 1010 in the context of section 2025.480, subdivision (b). Section 2025.480’s requirement that a motion to compel ‘shall be made no later than 60 days after the completion of the record of the deposition’ is section 1005’s ‘otherwise . . . specifically provided by law,’ and neither statute excuses compliance with section 1010.”
Having held that both the notice of motion and the supporting papers must all be served and filed within the 60-day period, Chaney declined to entertain the defendants’ argument that RPB had not been prejudiced by their service of the papers 15 days before the hearing instead of 16.
The case is Weinstein v. Blumberg, B282267.
Michael C. Baum, Andrew V. Jablon and Stacey N. Knox of Resch Polster & Berger argued for their firm. The defendants were represented by Ellen K. Wolf and Scott R. Antoine of Wolf Group L.A.
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