Sanctions in the Case Management Conference and discovery

Sanctions lurk in the background of virtually every court appearance. The most common are with Case Management Conference procedures and discovery

2015 July

The prepared plaintiff’s lawyer appearing in a Los Angeles Superior Court Independent Calendar Department on a Case Management Conference (CMC) has the following thoughts going through her head: 

“I’ve got to get there on time because the judge takes the bench at 8:30 on the dot.

“All my documents are timely and correctly filed. 

“I have conformed copies of my filings to show the court in the event the originals are missing.

“I have given notice of the CMC to defense counsel.

“I know the case well enough to be able to comply with CRC3.722.

“I have met and conferred with opposing counsel in compliance with CRC 3.724.

It is submitted that this lawyer is well prepared and will have no difficulty at her hearing. The purpose of this article is to discuss some common ways attorneys subject themselves to sanctions in the IC (Independent Calendar) courts and how to avoid this.  Some may not know that sanctions lurk in the background of virtually every court appearance. The most common exposures are with Case Management Conference procedures and with discovery.

CMC Sanctions

Please note code 68608(b): “Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case. Judges are encouraged to impose sanctions to achieve the purposes of this act.”  (Trial Court Delay Reduction Act)

The CMC is the first formal meeting of counsel and court, and is governed by California Rules of Court sections 3.722 et seq. A thorough reading of these rules is a must so that appearing counsel can understand the reasoning behind these rules.

Reading these sections reveals immediately that CMCs are to be taken seriously and are not mere vehicles to obtain calendar dates. Therefore, violations of the rules relating to the CMC can be taken seriously by the judge, who him/ herself is mandated to “review the case comprehensively…” (Rule 3.722.) The judge does so in part by conferring with counsel who “must be familiar with the case; and must be prepared to discuss and commit to the party’s position on the issues listed in rules 3.724 and 3.727”. (Rule 3.722(c).) Two of the issues listed in 3.724 are: Identifying the facts and issues in the case that are not contested and may be the subject of stipulation (3) and Identifying the facts and issues in the case that are in dispute. (4)

Therefore, it is clear that the CMC is contemplated to be a joint effort between the Court and counsel to prepare the case on its journey toward trial. It should come as no surprise that a rule violation that frustrates the ability of the Court to do so may engender sanctions.

The legal basis for imposition of sanctions at the CMC is CRC 2.30. The violations that arise most often are:

1. Failure of plaintiff to give notice of CMC to an appearing defendant. This is ordered in the first paragraph of the notice of CMC (Form LACIV 132) sent to the plaintiff lawyer by the court. The lawyer should have a procedure in place that immediately gives notice to every newly appearing defendant. A judge will not be pleased when there is no defendant present at the CMC because no notice was given. If an OSC re Sanctions arises out of this, it will be on the basis of CCP 177.5, violation of the court order referred to above. No such order to give notice appears in the CRC, so the violation cannot be grounded in 2.30.
2. Failure to meet and confer. (Rule 3.724). Note that this is also ordered in the first paragraph of LACIV 132. The parameters of the meet and confer are set forth in 3.724 and 3.727.  This meet and confer process is a basic building block to a successful and productive CMC. Positions are discussed, documents may be exchanged, stipulations entered into, all making the discussion before the Court at the CMC more productive.  Many is the time counsel at the CMC are surprised by the position of, or various facts asserted by, opposing counsel before the Court that either were not discussed at the meet and confer or not disclosed because no meet and confer took place. 

Note that the rule requires the meet and confer to take place “no later than 30 days” (Rule 3.724) before the CMC. This is sometimes a physical impossibility due to entry into the case by appearance of the defendant within the 30 days prior to the CMC. The Court doesn’t wish to waste counsel and court time by having an appearance at the CMC that would be unproductive, so consider a stipulation to continue the CMC so that a meaningful meet and confer can take place.

3. Failure of the appearing attorney to be knowledgeable about the file. (Rule 3.722.) If a lawyer is sent merely to obtain dates, this may incur the ire of the judge, since the purpose of the CMC is being frustrated. It will from time to time happen that, because of an emergency, the scheduled attorney may not be able to appear and an uninformed substitute may be sent in her/his place. It is suggested that as soon as that emergency reveals itself, opposing counsel be contacted and a continued date be obtained, or if necessary, show up and explain to the Court the need for a continuance. Counsel may wish to reconsider the advisability of sending an “appearance attorney” to CMCs due to the fact-intensive discussion that may take place there.
4. Lack of timely filing of CMC Statement (CMCS). (Rule 3.725(a).) The CMCS must be filed no later than 15 days before the CMC. If a CMCS is not timely filed, it may not make it into the Court file and the Court will not have read it prior to the CMC. It is not productive to bring it to the hearing (unless it’s a conformed copy proving timely filing) as the Court may not have the time to read and consider it. An OSC for sanctions may issue.

A very much overlooked benefit to the Court is the filing of a JOINT CMCS. (Rule 3.725(b).) It is not mandatory, so failure to do so is never sanctionable. The Court appreciates the reduction in paper handling.

5. Filing an incomplete CMCS. (Rule 3.725(c).) The CMCS is a form to be completely filled out. It provides the judge with salient information regarding service, appearance, case facts, etc. In the event an incomplete CMCS is paired with an unprepared attorney, a sanctions issue may arise.
6. Be on time, but know your judge. Some judges may not take the bench exactly at 8:30, but others will. If you appear late, please don’t tell the judge who starts at 8:30 that other judges have not required you to be present at that time.  The safe practice is to be there at 8:30 no matter who you are appearing in front of. If you have more than one appearance, make sure you check in at all departments and advise the CA of your other department appearances.  Some courtrooms open their doors before 8:30 for this express purpose.

So, as it relates to CMCs, the best advice to avoid sanctions is: Be on time; be prepared; be on point.

Discovery sanctions

At all CMCs in Dept. 58, a Discovery Abuse Protocol is handed to appearing counsel. It is set forth in full as follows:

Discovery Abuse Protocol 

Dept. 58, Judge Rolf M. Treu

The Court finds that most discovery motions are either unnecessarily brought or unnecessarily opposed.

The Court understands that on occasion, due to the actions of a party, or because of a legitimate issue of fact or law, such a motion or opposition may be necessary. When a discovery motion is filed, the Court will carefully scrutinize it to see why it is being brought, why it is being opposed, and why the applicable mandatory meet and confer provisions of the Code of Civil Procedure have not resolved the issue.

The Court emphasizes meaningful meet and confer, and reminds counsel that the failure to meaningfully meet and confer is an independent basis for sanctions, irrespective of the merits, or lack thereof, of the motion.

The legislature of this state has authorized (indeed in certain circumstances mandated) sanctions for discovery abuse.  The Court will not hesitate to impose such sanctions in an appropriate case, for the express purpose of ameliorating the scourge of this unnecessary and wasteful expenditure of time and effort.

If all parties agree, the Court is available to counsel for an all-party telephone conference prior to the filing of a discovery motion to discuss resolution of the dispute. If, during a deposition, need is found to suspend it for the purpose of bringing a motion, and if all parties agree, counsel are encouraged to call Dept. 58 from the deposition venue and the Court will discuss with counsel resolution of the issue(s).

Unfortunately, many lawyers feel it necessary to use pages of generic “General Objections” prior to commencing their responses to discovery. These include every conceivable objection the fertile mind might conjure up. However, this practice is not authorized by the CCP, Rules of Court or Local Rules, is a complete waste of time and space, and may subject the objector to sanctions. (See discussion of Code Civ. Proc. § 2023.010, below). Of course, if the discovery modality may be objected to in its entirety for specific reason, i.e., propounded after discovery cutoff, then a specific general objection would lie.

In fact, objections that are permitted must be tailored to the discovery issue in question. 

With respect to interrogatories: “an objection to the particular interrogatory” (Code Civ. Proc. § 2030.210(a)(3).)

Regarding Request for Production:
“an objection to the particular demand for inspection, copying, testing or sampling.” (Code Civ. Proc. § 2031.210(a)(3).)

With respect to Requests for Admissions: “Each response shall answer the substance of the requested admission, or set forth an objection to the particular request” (Code Civ. Proc. § 2033.210(b).)

With depositions, objection to the Notice of Taking Deposition is taken under Code Civ. Proc. section 2025.410 and is restricted to violations of section 2025.210 et seq., generally dealing with the wording of the notice, the minimum time for sending notice and location of deposition. Note:  no objection lies for not clearing the date ahead of time with opposing counsel. If counsel cannot stipulate to a mutually agreeable date, then a motion for protective order must be brought under section 2025.420 and sanctions SHALL be imposed for unsuccessful making/opposing the motion unless substantial justification is shown or other extenuating circumstances exist. 

In the discovery context, counsel should be intimately familiar with Code Civ. Proc. sections 2023 et seq.  These are the basic sanctions sections dealing with all modalities of discovery. 

Section 2023.010 sets forth the “Conduct subject to sanctions.” It covers the misuse of the discovery process, to include:

• Unauthorized discovery
• Discovery causing unwarranted annoyance, burden and expense
• Failure to respond
• Unmeritorious objections (see discussion re general objections, above, and deposition instructions not to answer a question, below)
• Evasive responses
• Disobeying Court order to provide discovery
• Making/opposing motions to compel or limit discovery without substantial justification
• Failing to meet and confer on discovery disputes, where it is required by the applicable discovery motion section.

Note that section 2023.020 specifically authorizes sanctions for failure to meet and confer, irrespective of the outcome of the motion.

Every practitioner will have experienced the exasperation of having opposing counsel in a deposition instruct his/her client not to answer a question. Unless the instruction is used to assert privilege or work product, its use is fraught with peril for the instructing attorney. (See Code Civ. Proc. §§ 2025.460(a) and 2023.010(e).

Note Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006. The trial judge is quoted at 1011 as follows:

“So you’re the Mr. Wolfe that sat in the deposition and instructed the witness not to answer questions because you didn’t think they were relevant. Well, that’s not your role. You are ordered not to instruct the witness not to answer a question during any deposition in this case unless the matter is privileged. The proper procedure is to adjourn the deposition and move for protective order.  You don’t assume the role of judge and instruct the witness not to answer a question. That is a huge no-no.”

Sanctions of $2400 against the instructing attorney were awarded and affirmed by the Court of Appeal in that case.

Note the manner of suspending a deposition and seeking a protective order are found in sections 2025.470 and 2025.420 of the Code of Civil Procedure.

Conclusion

It is hoped that through the discussion of some common sanction-subject circumstances the reader has been made more aware of the pitfalls that may exist in litigation practice. No two judges are alike in their use of sanctions, so prudent practice dictates knowledge of the applicable law and compliance with the Rules of Court.