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Discovery Sanctions Against Attorney After Withdrawal Were Warranted—C.A.
Lack of Civility, Pervasive Discovery Misuse Justified Order, Bedsworth Says
By Kimber Cooley, Staff Writer
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DOUGLAS P. VANDERPOOL attorney |
Div. Three of the Fourth District Court of Appeal has held that discovery sanctions were appropriately issued against an attorney who repeatedly responded to interrogatories and production requests with mostly boilerplate objections—even after agreeing to provide further substantive responses—despite the fact that the attorney had withdrawn as counsel of record a month before the motion requesting sanctions was filed.
Acting Presiding Justice William W. Bedsworth authored the opinion, filed Thursday, affirming an order by Orange Superior Court Judge Theodore R. Howard granting sanctions. Justices Thomas M. Goethals and Joanne Motoike joined in the opinion.
In addition to the discovery violations, Bedsworth was concerned over the behavior of Douglas P. Vanderpool, the principal attorney for the sanctioned law firm, and said:
“[T]he lack of civility, throwing even more sand into the gears, coupled with the blatant and pervasive substantive discovery misuse could only have confirmed to the referee and to the court that monetary sanctions…were warranted in this case.”
Appealing the award of $10,000 in discovery sanctions was the Vanderpool Law Firm (“VLF”), located in Seal Beach. VLF and Vanderpool defended John Bauche, BoundlessRise, LLC and Skyward Investments, LLC in a lawsuit brought by the Irvine-based medical technology company Masimo Corporation.
Masimo sued after Bauche was indicted in federal court for embezzling nearly $1 million from Masimo while employed by the company through funneling company funds to the defendant companies, both of which were companies Bauche controlled.
A discovery referee was former Orange Superior Court Presiding Judge James P. Gray, now retired. In his written recommendations for sanctions, Gray said:
“It is widely held that if only boilerplate objections are provided, especially when they lack merit as is the situation here, and substantive responses are not provided, as is also the situation here, sanctions are virtually always awarded.”
Gray found that VPL could not avoid sanctions by “substitute[ing] out of the case 38 days before the renewed motion” and took the firm to task for inappropriate behavior, saying:
“Appended to [VPL’s] Opposition…was a copy of a letter ostensibly sent recently by some members of Congress to the United States Office of Management and Budget complaining about some alleged political contributions made by [Joe] Kiani, who is plaintiff’s Chief Executive Officer. This attempt inappropriately to prejudice discovery referee and the Court with irrelevant allegations of misconduct is shameful, and cannot be tolerated!”
Discovery Misuse
Bedsworth pointed to Code of Civil Procedure §2023.030 as the governing law for discovery sanctions and said:
“[S]ection 2023.010 identifies two instances of repeated misuse of the discovery process in evidence here: ‘Making, without substantial justification, an unmeritorious objection to discovery’ (…subd. (e)) and ‘Making an evasive response to discovery’ (…subd. (f)).”
The jurist noted that, in response to the first interrogatories and document production requests sent by Masimo, VPL only offered ineffective general objections, saying:
“The individual responses, repeated for each interrogatory and request for production, consisted only of objections – lack of standing, the pending criminal matter, violation of Bauche’s First and Fifth Amendment rights, an existing arbitration agreement, and Bauche’s opinion that the matter should be consolidated with another case.”
He continued:
“Bauche refused to state the date and place of his birth, his current residence address, his educational history, whether he could read and write English, and whether he had a driver’s license on these grounds. He refused to produce any documents relating to his own communications with Massimo or relating to procuring services for Massimo. In fact, he refused to answer any interrogatories or to agree to produce any documents at all on these grounds.”
After agreeing, during a conference with Gray, to provide further discovery responses, Buche provided some substantive responses—such as revealing his date and place of birth and his ability to read and write English—but then reverted to responding with objections only, adding even more boilerplate grounds.
Bedsworth opined:
“Unquestionably [VPL] engaged in discovery misuse when it supplied the initial responses to the interrogatories and to the document production requests and when it supplied the supplemental responses, especially after representing to the discovery referee that it would ‘promptly’ provide ‘further responses.’ The referee undoubtedly assumed these would be substantive responses, not a repetition of what had occasioned the discovery motion in the first place.”
Counsel of Record
Rejecting VPL’s attempt to avoid sanctions by pointing out that the firm had withdrawn as counsel before the motion was filed, Bedsworth said:
“[T]he statutory language authorizing monetary sanctions for discovery misuse does not limit their imposition to counsel of record. ‘Any attorney’ advising that conduct can be liable for monetary sanctions.”
Finding VPL responsible for the discovery abuses, he wrote:
“[VPL] indisputably advised defendants to stonewall Masimo’s discovery efforts not once but twice, the second time after promising to provide substantive answers….[VPL]’s precipitate exit from its representation of…Bauche did not insulate it from these sanctions for its prior discovery misuse. Bauche’s insistence that he would ‘stick with the objections’ even after [VPL] ceased to represent him showed that the discovery misuse it had initiated was perpetuated beyond the date of substitution.”
Lack of Civility
Bedsworth noted that his court “has in the past had occasion to deplore the lack of civility that has flourished in the legal profession in recent decades,” and commented:
“Evidently [VPL]’s principal attorney, Douglas Vanderpool, did not get the memo….After being served with the moving papers for the motion to compel, Douglas Vanderpool began an email to Ellison with the subject line ‘You are joking right?’ The body of the email continued in the same vein: ‘In 30 years of practice this may be the stupidest thing I’ve ever seen. Robert is this really why you went to law school? Quit sending us paper. you know we are out of the case so just knock it off and get a life. Otherwise we’re going to be requesting sanctions against your firm for even bothering us with this nonsense.’”
Bedsworth remarked:
“Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports.”
Bauche’s criminal case was dismissed in December 2021 upon his completion of a federal diversion program.
The case is Masimo Corporation v. The Vanderpool Law Firm, Inc., 2024 S.O.S. 1520.
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