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Court of Appeal:
Lawyer Was Properly Sanctioned for Shunning Webcam
Egerton Says Refusal to Be Seen During Questioning of Client in Deposition Via Zoom, Giving Impression of His Coaching Client on How to Answer, Constitutes Discovery Abuse and, Under Recent Case Law, May Be Penalized
By a MetNews Staff Writer
Div. Three of the Court of Appeal for this district held yesterday that a Los Angeles Superior Court judge properly imposed a $9,981sanction on a Sherman Oaks attorney who, during a deposition via Zoom, declined to turn his webcam on despite the expressed suspicion of the opposing counsel that he was coaching his client, who was on camera, on how to answer.
The attorney is Jeff Katofsky of a three-lawyer civil law firm. The penalty was imposed by Judge Steve Cochran who presided over a marital-dissolution case in which Katofsky’s client was a third-party witness.
Justice Anne H. Egerton wrote the opinion. She also authored Div. Three’s Jan. 23, 2024 decision which reached a contrary result.
The California Supreme Court granted review and, after it rendered its Aug. 22, 2024 decision in City of Los Angeles v. PricewaterhouseCoopers, LLP (“PwC”), sent the case back to Div. Three for a fresh look, in light of that case.
There, the state’s high court, reversing a determination by Div. Five of this district’s Court of Appeal, held that Los Angeles Superior Court Judge Elihu M. Berle properly imposed a $2.5 million sanction on the City of Los Angeles in connection with the Department of Water and Power overbilling scandal.
Two CCP Sections
That case concerned—as the one before Div. Three did—the interplay between two Code of Civil Procedure provisions.
Sec. 2023.030 provides that “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court” may, after due notice is given—“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.” Sec. 2023.011 sets forth various types of abuses.”
Justice Leondra Kruger wrote for a unanimous court:
“The central question before us is whether the trial court had the authority to issue the order under the general provisions of the Civil Discovery Act concerning discovery sanctions, Code of Civil Procedure sections 2023.010 and 2023.030. The Court of Appeal in this case answered no. Bucking the long-prevailing understanding of these provisions, the appellate court read the Civil Discovery Act as conferring authority to sanction the misuse of certain discovery methods, such as depositions or interrogatories, but as conferring *5* no general authority to sanction other kinds of discovery misconduct, including the pattern of discovery abuse at issue here.
“We now conclude the prevailing understanding of the Civil Discovery Act was, in fact, correct: Under the general sanctions provisions of the Civil Discovery Act, Code of Civil Procedure sections 2023.010 and 2023.030, the trial court had the authority to impose monetary sanctions for the City’s pattern of discovery abuse. The court was not limited to imposing sanctions for each individual violation of the rules governing depositions or other methods of discovery.”
Katofsky’s Arguments
On appeal, following the remand Katofsky argued that PricewaterhouseCoopers does not apply because that case dealt with particularly egregious misconduct and, besides, he did nothing wrong because he was under no duty to be on camera during the deposition of his client, Kenneth Madick.
Egerton disagreed, saying:
“[A]lthough the misconduct in PwC was extreme, our high court’s reasoning did not turn on the underlying facts of the case….On the contrary, PwC holds a trial court may invoke its independent authority to impose monetary sanctions under the statutes whenever ‘confronted with an unusual form, of discovery abuse, or a pattern of abuse, not already addressed by a relevant sanctions provision.’ (…italics added.) This statutory construction, the court explained, follows from the fact that one of the Civil Discovery Act’s ‘central purposes’ was to ‘fill those gaps’ in ‘the preexisting scheme of statutory sanctions’ so as ‘to give courts the tools necessary to respond to those abuses to ensure that civil discovery can serve its central truth-seeking function.’…This gap-filling purpose would not be meaningfully achieved if the PwC holding was limited to only ‘extreme circumstances,’ as Madick urges.”
‘Gamesmanship’ Alleged
The justice rejected the contention that Katofsky committed no discovery abuse. She noted that the plaintiff in the marital-dissolution action, Shawn Agnone, who had subpoenaed Mednick to be deposed as to dealings with her husband, sought sanctions based on “gamesmanship” on the part of Katofsky and his client.
Egerton wrote:
“The record shows Shawn’s counsel repeatedly asked Katofsky to make himself visible on camera, explaining to Katofsky that counsel could not go forward with the deposition because, ‘every time that I ask a question, your client is looking upward to you for feedback.’ Katofsky confirmed his computer was equipped with a webcam—as required under the subpoena and deposition notice that Madick acknowledged without objection—but he refused to turn on the webcam without any justification other than, ‘I don’t need to have my webcam on.’ Based on this record, we have no trouble concluding the trial court reasonably exercised its discretion to impose sanctions for this ‘unusual form of discovery abuse’ that plainly frustrated the deposition’s ‘truth-seeking function.’ ”
The case is Agnone v. Agnone, B321252.
Katofsky was in pro per on appeal, as well as being represented by Santa Monica attorney Michael Leff. David P. Pruett of the Long Beach firm of Carroll, Kelly, Trotter & Franzen acted for Shawn Agnone.
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