Friday, February 17, 2017

Sanctionable, But Not Contempt.

Van v. Language Line Servs., Inc., No. H041459 (D6 Feb. 1, 2017)

Plaintiff in an employment case filed an ex parte application to stay her deposition, which the court denied. She continued to object after the denial. And when the noticed date came around, she didn’t show. Defendant served some more noticed. Same objections.

Defendant ultimately moved to compel, for sanctions, and for an order of contempt. It argued that the no-show was in defiance of the order denying the ex parte to stay the depo. Plaintiff opposed and filed her own motion to quash.

The trial court issued a $1,050 sanction for the original ex parte, finding it without substantial justification. It then held her in contempt for violating the order denying the ex parte, ruling that she had no basis to continue to object after it was denied. The court awarded $7,700 as a contempt sanction. The court kicked the motion to compel out to coincide with plaintiff’s motion to quash. Plaintiff then voluntarily dismissed, and defendant was awarded costs.

There’s a threshold appealability issue, because, while a sanctions order over $5,000 is appealable, contempt orders are reviewable only by writ. Since the discovery sanctions were under the threshold, Plaintiffs path to the Court of Appeal was by way of writ. But Plaintiff filed only a notice of appeal. Given the stigma of contempt, however, the court declines to punish Plaintiff for her lawyer’s mistake and construes the appeal to be a writ, at least as to the contempt order.

On the merits, contempt only lies from a courts order that a party do or not to do something. A mere denial of relief in a motion brought by the alleged contemnor doesn’t really cut it. Clearly, by no-showing at her depo after her request for a stay was denied, Plaintiff opened herself up to regular old discovery sanctions under Code of Civil Procedure § 2025.450(g)(1). But since the denial didn’t order her to appear, there was no basis to hold her in contempt.

Reversed.

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