Andrews v. Superior Court

Opinion

EPSTEIN, Acting P. J.

The issue in this case is whether a trial court may order counsel to pay both sanctions and his client’s share of a discovery referee’s fees under Code of Civil Procedure section 128.

1

We conclude that it cannot.

Factual and Procedural Summary

Petitioner Joseph Andrews represented Irena Wegricht in her action for breach of an insurance contract and of the implied covenant of good faith and fair dealing in the underlying action,

Wegricht

v.

Underwriters at Lloyd’s, London

(Super. Ct. L.A. County, No. BC202512). A motion to compel discovery was brought by Ms. Wegricht in the underlying action. The court referred this motion to Robert W. Thomas, retired judge, as discovery referee. The referee made findings, and in response to submissions by the parties, made a second set of findings.

The parties appeared before the trial court for a hearing on defendant’s motion for summary judgment in the underlying action. The court granted the motion, and, sua sponte, without prior notice to the parties, took up Ms. Wegricht’s objections to the referee’s findings and recommendations on the motion to compel. At the conclusion of the hearing, the trial court awarded discovery sanctions against petitioner individually pursuant to sections 2031, subdivision (a)(1) and 2023, subdivisions (a)(8) and (b)(1), in the amount of $2,275.

[781]

The court fixed the discovery referee’s fees at $4,200 and ordered plaintiff to pay $3,500 and defendants to pay $700. It also ordered petitioner to pay his client’s share of the referee’s fees: “Further—although the question is not clearly answered either by the statutory law or the case law—the court has carefully considered whether it has power to order that Mr. Andrews pay the plaintiff’s portion of the discovery referee’s fee. The court has decided that it does have that power, in part under the authority conferred on the court by Code of Civil Procedure section 128, subdivision (A), paragraphs 4 and 5. The court has also considered whether the better exercise of its discretion to employ that power is to employ it in this situation, under all the circumstances, or to refrain from employing it. The court has decided that the wiser exercise of its discretion is to order that Mr. Andrews pay the plaintiff’s portion of the discovery referee’s fee. Accordingly, the court so orders.”