Blumenthal v. Superior Court

Opinion

WHITE, P. J.

This petition presents the question of whether discovery sanctions under Code of Civil Procedure section 2034, subdivision (d) may be ordered against an attorney where the moving papers seek sanctions only against his clients. We have concluded that the $1,000 award against petitioner must be annulled because petitioner was not given notice and a reasonable opportunity to defend against the sanction.

On August 28, 1979, after petitioner’s client failed to appear for a deposition scheduled for the previous day, real parties in interest, the plaintiffs below, noticed a motion for sanctions. Their notice stated an intention to move the court for an order striking the answers of the defendants and/or rendering a judgment by default against the defendants and/or ordering the defendants to compensate plaintiffs in the sum of $2,500 for attorney’s fees and expenses. No mention was made of sanctions against counsel.

Hearing on the motion was removed from calendar when the parties arranged a settlement of the lawsuit, but default in payments by the defendants resulted in renewal of the motion. Neither real parties’ letter of November 29, 1979, nor their supplemental memorandum in support of the motion for sanctions, mentioned an intention to seek an award against counsel. In fact, the November 29, 1979, letter closed with the

[319]

statements: “Mr. Blumenthal,

your clients

appear to have a very cynical contempt for the legal process. It is my sincere hope that we can disabuse

them

of that notion.” (Italics added.)

Defendants did not appear for the December 4, 1979, hearing on the motion, and petitioner did not represent them at the hearing. The court ordered default entered against the defendants and ordered petitioner to pay $1,000 in sanctions to plaintiffs and their counsel, “forthwith.” After having been served with an order to show cause re contempt for failing to pay the $1,000, petitioner filed this petition to annul the sanction. We stayed the contempt proceedings.