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Court of Appeal:
Discovery Sanction Against Deponent Barred Once Motion to Compel Was Withdrawn
Contrary First District Opinion Is Repudiated
By a MetNews Staff Writer
The Court of Appeal for this district has reversed an order to a third-party witness to pay the deposing party $9,981 in attorney fees based on conduct of the witness’s attorney at a deposition via Zoom, holding that the court had no power to impose a sanction once the underlying action was settled and the motion to compel had been withdrawn.
Justice Anne H. Egerton authored the opinion, filed Tuesday. Although it rejects a contrary conclusion reached by Div. One of the First District Court of Appeal in its 2014 opinion in Evilsizor v. Sweeney, Egerton’s opinion was not certified for publication.
The sanction was imposed on Kenneth Madick, who appeared for his deposition via his computer’s webcam on Nov. 16, 2021. His Sherman Oaks attorney, Jeffrey Katofsky, was in the room but declined to appear on camera.
Attorney Alfred Movsesyan, of the Glendale firm of Boyamian Law, Inc., representing the deposing party, Shawn Agnone, protested:
“Mr. Katofsky, you are sitting in the same room as your client. I cannot tell if you are making any visual signs or anything to your client, or whether he is looking at you, and you are telling him to answer one way or another.”
Katofsky insisted that he wasn’t, and was not obliged to appear on camera.
Motion to Compel
Agnone’s lawyer called off the deposition, after some testimony had been given, and then made a motion to compel Madick and Katofsky to appear for a further deposition, with both being on camera, seeking attorney fees as a sanction, citing various statutes. The motion to compel was withdrawn after Agnone and her ex-husband settled their dispute, but Agnone nonetheless pressed her request for attorney fees from Madick and Katofsky, jointly and severally.
Los Angeles Superior Court Judge Steve Cochran on March 17, 2022 denied the motion to compel. The minute order reflects this:
“The Court orders Kenneth Madick to pay to the Petitioner’s counsel the amount of $9,981.00 in sanctions no later than April 29, 2022.”
No statutory basis for the order was cited by Cochran; no statement was provided as to why he was holding Madick vicariously liable for his attorney’s conduct; and the judge did not explain why Katofsky was obliged to appear on camera.
No Statutory Authority
Egerton found that no statute cited by Agnone authorized Cochran’s ruling.
She made note of Code of Civil Procedure §1987.1(a) which provides that “[i]f a subpoena requires the attendance of a witness… at the taking of a deposition,” the court can require or excuse compliance. Egerton also considered §1987.2(a) which says:
“[I]n making an order pursuant to motion made…under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”
The jurist wrote:
“Madick argues Shawn’s withdrawal of her motion to compel precluded the trial court from ‘making an order pursuant to motion made...under Section 1987.1’…and, hence, divested the court of authority to award sanctions under section 1987.2. We are compelled to agree.
“The plain language of section 1987.2, subdivision (a) unambiguously conditions the award of sanctions on a party making a motion under section 1987.1 and the court ‘making an order pursuant to’ that motion….As Madick correctly emphasizes, when a party makes a motion to compel compliance with a subpoena, section 1987.1 specifies only two orders that may be made pursuant to the motion: the court may either make an order ‘directing compliance with [the subpoena] upon those terms or conditions as the court shall declare’ or it may deny the requested relief and make an order ‘to protect the person [subject to the subpoena] from unreasonable or oppressive demands.’…Due to Shawn’s withdrawal of her motion to compel, the trial court entered neither order. It therefore had no discretion to award sanctions under the plain language of section 1987.2, subdivision (a).”
First District Decision
In Evilsizor, decided on Oct. 28, 2014, the appeals court upheld a sanction pursuant to §1987.2 imposed on a man who had withdrawn his motion to quash a subpoena. Presiding Justice Jim Humes said that the appellant “argues that the award was unauthorized under section 1987.2, subdivision (a) because” the subpoenaing party “did not prevail on the underlying motion to quash,” and declared:
“We are not persuaded.”
He put forth the view that a motion is “made” not only when it is filed but when it is maintained and that because the motion to quash was not withdrawn promptly upon it becoming clear that it was meritless, sanctions were appropriate.
Flaw Asserted
Egerton said that Humes’s opinion “affirmed the award without considering the statutory language requiring ‘an order pursuant to motion made...under Section 1987.1.’ ” She remarked:
“Evilsizor gives us no reason to ignore what is plainly required by the statutory text.”
She added that Agnone “does not address the statutory language requiring the court to make an order under section 1987.1 as a condition to awarding sanctions under section 1987.2, subdivision (a)” and merely “selectively quotes a practice guide in flatly declaring” that “the mootness of the discovery issue ‘does not eliminate the right to sanctions.’ ”
The case is Agnone v. Agnone, B321252.
Katofsky was joined by Michael Leff of his firm in representing Madick. David P. Pruett of the Long Beach firm of Carroll, Kelly, Trotter & Franzen acted for Agnone.
Agnone’s ex-husband, Emmy award-winning Hollywood producer Frank Charles Agnone II, did not participate in the appeal.
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