Summary
The California Court of Appeal affirmed an order requiring third-party witness Kenneth Madick to pay monetary sanctions arising from conduct during a remote deposition in a marital dissolution proceeding. Following the California Supreme Court’s decision in City of Los Angeles v. PricewaterhouseCoopers, LLP, the court held that Code of Civil Procedure sections 2023.010 and 2023.030 independently authorize sanctions for an unusual form of discovery abuse not addressed by a specific sanctions provision. The court concluded that refusing to appear visibly on camera while physically present with the deponent reasonably supported an implied finding of discovery abuse.
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Practice areas
Questions Presented
- Whether Code of Civil Procedure sections 2023.010 and 2023.030 independently authorize monetary sanctions for an unusual form of discovery abuse not already addressed by a method-specific sanctions provision.
- Whether refusing to appear visibly on camera while physically present with a deponent, under circumstances permitting surreptitious coaching, constituted a misuse of the discovery process warranting sanctions.
- Whether the trial court's failure to expressly find that sections 2023.010 and 2023.030 authorized sanctions required reversal of the sanctions order.
Holdings
- A trial court may invoke its independent authority under Code of Civil Procedure sections 2023.010 and 2023.030 to impose monetary sanctions for an unusual form or pattern of discovery abuse not already addressed by a relevant method-specific sanctions provision.
- Refusing to appear visibly on camera while physically present with a deponent, where the refusal prevented opposing counsel from determining whether the attorney was coaching the deponent, may constitute an unusual form of discovery abuse warranting monetary sanctions.
- The absence of an express finding that sections 2023.010 and 2023.030 authorized sanctions does not require reversal when the record supports an implied finding and the appellant has not provided a record demonstrating error.
Key quotations
“In sum, PwC holds a trial court “may invoke its independent authority to impose sanctions under sections 2023.010 and 2023.030 only when confronted with an unusual form of discovery abuse, or a pattern of abuse, not already addressed by a relevant sanctions provision.”” (at 74)
“Contrary to Madick’s contention, the rule cannot reasonably be read as a blanket authorization for a deponent’s attorney to participate by audio-only means while physically present with his client under circumstances where the attorney could surreptitiously coach the deponent outside opposing counsel’s view.” (at 10)
“Coaching a deponent is, of course, a misuse of the discovery process as defined in section 2023.010 that authorizes the imposition of sanctions under section 2023.030.” (at 11)
Factual background
During Shawn Agnone's marital dissolution proceeding, Frank Agnone disclosed that he had placed thousands of dollars in sports bets with third-party witness Kenneth Madick. Shawn served Madick with a deposition subpoena requiring a remote deposition using a webcam, and Madick's attorney appeared in the same room as Madick but refused repeated requests to turn on his webcam or sit where he could be seen. Shawn's counsel observed Madick looking upward toward the attorney before answering and terminated the deposition because he could not determine whether the attorney was coaching Madick. After the dissolution action settled, the trial court awarded Shawn $9,981 in sanctions against Madick.
Procedural history
Shawn Agnone subpoenaed Madick for a remote deposition and document production in her marital dissolution action. After Madick's attorney refused to appear visibly on camera during the deposition, Shawn moved to compel compliance and sought sanctions. Shawn later withdrew the motion to compel after settling the dissolution action with Frank Agnone but maintained her sanctions request. The superior court imposed $9,981 in sanctions against Madick alone. The Court of Appeal initially concluded that Code of Civil Procedure sections 2023.010 and 2023.030 did not independently authorize the sanctions, but the Supreme Court granted review, decided the related issue in PwC, and transferred the matter for reconsideration. On reconsideration, the Court of Appeal affirmed.