Rogers v. Rogers CA2/8 ( 2015 )

Filed 3/16/15 Rogers v. Rogers CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
REX ROGERS, B254021
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. KP015122)
v.
KATHEE ROGERS,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County,
Lesley C. Green, Judge. Affirmed.
The Ryan Law Firm and Kelly F. Ryan for Plaintiff and Appellant.
Law Offices of Doonan & Doonan and D. Scott Doonan for Defendant and
Respondent.
___________________________________
Rex Rogers appeals from an order imposing $6,583 in sanctions against him for
failing to appear at his noticed deposition. (Code of Civ. Proc., § 904.1, subd. (a)(12).)1
Because the trial court did not abuse its discretion when it imposed the monetary
sanction, we affirm the order.
FACTS
Mack Ray Rogers2 established a trust on October 14, 1999. He died on
February 10, 2012, and his wife, Kathee, became successor trustee upon his death. This
appeal involves an acrimonious lawsuit3 between Rex, Mack’s son from a previous
marriage, and Kathee regarding certain amendments made to Mack’s trust prior to his
death. During the course of discovery, the trial court imposed a $6,583 monetary
sanction against Rex for his failure to appear for a noticed deposition in his home state of
Florida. The events leading up to the sanction are lengthy, involving many letters
between the attorneys for the parties about the deposition as well as other discovery
disputes. As a result, we only provide a summary of the relevant events below.
Beginning in September 2013, Kathee’s attorney, D. Scott Doonan, attempted to
meet and confer with Rex’s attorney, Noah Green, to set a date for Rex’s deposition.
1 Under Code of Civil Procedure section 904.1, subdivision (a)(12), an appeal may
be taken from an order directing payment of monetary sanctions by a party or an attorney
for a party if the amount exceeds $5,000.
All further section references are to the Code of Civil Procedure unless otherwise
specified.
2 For ease of reference, we will refer to the family members by their first names.
3 The squabbling between the parties has extended to this appeal by Kathee’s
motion for sanctions against Rex and his counsel for filing a frivolous appeal and
violating appellate rules requiring a full summary of facts. (§ 907; Cal. Rules of Court,
rule 8.276(a)(1), (4).) Rex’s briefing is far from exemplary and lacks a complete
statement of the facts, presenting only those facts favorable to him. However, we decline
to find his appeal is sufficiently egregious as to warrant sanctions. (In re Marriage of
Flaherty (1982) 31 Cal.3d 637, 651 [“the punishment should be used most sparingly to
deter only the most egregious conduct”].) Kathee’s motion is denied.
2
Doonan initially hoped to take Rex’s deposition in California, where his office was
located and where this matter was being litigated. However, Green informed him that
Rex, who lived in Florida, would be unwilling to travel to California for his deposition.
Further, Green indicated he was reluctant to proceed with a deposition without first
receiving the trust accounting ordered by the trial court. He believed that after a review
of the accounting, the parties could “meet and confer to determine whether or not the case
is ripe for settlement/mediation, or if further depositions and discovery are necessary.”
Doonan disagreed, contending his right to take Rex’s deposition was “mutually exclusive
to the filing of the trust accounting” and refused to delay the deposition. Having failed to
obtain a date from Green by September 26, 2013, Doonan noticed Rex’s deposition in
Florida for November 5, 2013.
During the course of communications regarding other discovery issues, however,
Green continued to state that he was “in the process of obtaining dates for the deposition
of my client.” The first account and report of trust was filed on October 11, 2013. Two
weeks prior to the noticed deposition, on October 23, 2013, Doonan warned Green he had
already booked his flight to Florida and would move to compel Rex’s appearance at the
deposition. Despite this, Green continued to offer alternate dates for Rex’s deposition,
suggesting his client would be willing to fly to California if Kathee’s deposition could be
taken the day following Rex’s. On October 28, 2013, Kathee’s ex parte motion to
compel Rex’s appearance at his deposition and seeking monetary sanctions of $6,235 was
denied on the grounds the noticed deposition had not yet occurred.
Not surprisingly, Rex failed to appear for the noticed deposition on November 5,
2013. On November 7, 2013, however, Green offered to conduct back-to-back
depositions of Rex and Kathee in California later that month. Doonan refused because
the dates offered for Kathee’s deposition conflicted with his schedule, about which he
had earlier informed Green, and Kathee would be recovering from oral surgery at that
time. On November 15, 2013, Doonan filed a noticed motion to compel deposition,
seeking $17,470.54 in monetary sanctions. The trial court granted Kathee’s motion to
compel Rex’s deposition on December 17, 2013, and issued monetary sanctions of
3
$6,583.00. It noted, “on a number of occasions, [Green] made having Mr. Rogers appear
for his deposition contingent upon an accounting or something else. [¶] That’s not the
way discovery works . . . . [¶] . . . [¶] Now, I would certainly expect the parties to work
that out in terms of dates, but he [Doonan] offered many times to give you [Green] dates,
to pick dates. You didn’t do that, so he finally just picked one. You wouldn’t commit
whether your client was available. So, ultimately, the Friday before he got on an
airplane, you called, or somehow notified him that your client was not available. That
was unacceptable.” A motion filed by Green to compel Kathee’s deposition was heard
the same day and was also granted. However, monetary sanctions were denied. Rex
timely appealed.
DISCUSSION
A trial court is authorized to impose monetary sanctions for the misuse of the
discovery process, including the willful failure to appear at a deposition and the failure to
confer in a reasonable and good faith attempt to informally resolve discovery disputes.
(§§ 2023.010, subd. (d), 2023.030, subd. (a).) Section 2025.410, subdivision (d) requires
the trial court to impose a monetary sanction under section 2023.010 in favor of the party
who noticed the deposition and against the deponent “unless it finds that the one subject
to the sanction acted with substantial justification or that other circumstances make the
imposition of the sanction unjust.”
“We review discovery orders for an abuse of discretion. [Citation.] Sanction
orders are ‘subject to reversal only for arbitrary, capricious or whimsical action.’
[Citations.]” (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008)
163 Cal.App.4th 1093, 1102; see Britts v. Superior Court (2006) 145 Cal.App.4th 1112,
1123 [“abuse of discretion standard of review ordinarily applies . . . to review of an order
imposing discovery sanctions for discovery misuse”].) To the extent the trial court’s
ruling is based upon factual determinations, they must be supported by substantial
evidence. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430.) “A reviewing
court must therefore first determine whether substantial evidence supports the factual
4
basis on which the trial court acted, and then determine whether the orders made by the
trial court were an abuse of discretion in light of those facts.” (Ibid.)
Rex contends substantial evidence does not support the trial court’s finding that
“[Doonan] tried and tried to get dates and that Mr. Green kept putting him off.” Even if
we accept this was the only factual finding upon which the trial court relied to impose the
monetary sanction, there is no merit to this contention. The record clearly showed that
Green conditioned setting a date for Rex’s deposition first on receiving the accounting
and then, on conducting back-to-back depositions with Kathee. It was not until two
weeks prior to the noticed deposition that Green offered a firm date on which to conduct
Rex’s deposition. Prior to that, he merely offered vague promises of conferring with his
client on the location and date of the deposition.
For the same reason, we also reject Rex’s contention that he was substantially
justified in “attempting to move the location of the deposition to California and giving his
client an opportunity to be present for the respondent’s deposition without having to
make two trips across country.” This argument would have more substance if Rex’s
attempts to reschedule the location and date of his deposition had occurred prior to the
noticed deposition and prior to Doonan booking his flight. Instead, the record shows that
Doonan only noticed the deposition to take place in Florida after he was informed Rex
would not appear in California for his deposition. The suggestion that the parties conduct
back-to-back depositions of Rex and Kathee in California was made late in the process —
after Doonan had booked his flight and only two weeks before the deposition. Moreover,
Rex’s right to attend Kathee’s deposition, if he has one, is separate and apart from his
obligation to appear at a noticed deposition.
These facts differ markedly from those in Leko v. Cornerstone Building Inspection
Service (2001) 86 Cal.App.4th 1109, the case relied upon by Rex. There, the deposition
was not calendared by the deponent’s counsel due to a mistake or miscommunication.
Once she realized the mistake, the deponents’ counsel notified opposing counsel that
neither she nor her clients were available on the noticed date, but offered to arrange an
alternative date. The offer was rejected and opposing counsel filed a motion to compel
5
instead. He was sanctioned for failing to make a reasonable attempt to resolve the
discovery issue informally. Here, there was no mistake or miscommunication that
resulted in Rex’s failure to appear at the noticed deposition. Further, Green’s offer of
alternate dates was not reasonable, coming too late in the process. In short, the record
amply supports the trial court’s ruling. There was no abuse of discretion.
DISPOSITION
The December 17, 2013 order imposing discovery sanctions is affirmed. Kathee is
to recover her costs on appeal.
RUBIN, ACTING P.J.
WE CONCUR:
FLIER, J.
GRIMES, J.
6