Perez v. Buckingham Property Management CA3

California Court of Appeal May 10, 2016 No. C078253Unpublished

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Holding. The court held that the trial court erred by imposing monetary sanctions without providing the parties with legally adequate notice or a sufficient opportunity to present written and oral opposition, violating both the Civil Discovery Act and due process.

Issues

Whether the trial court provided adequate notice and opportunity to be heard regarding a request for monetary sanctions.
Whether discovery sanctions may be properly imposed through an ex parte application without sufficient notice.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Adequate notice prior to imposition of sanctions is mandated not only by statute, but also by the due process clauses of both the state and federal Constitutions.”

“Discovery sanctions may not be ordered ex parte, and an order purporting to do so is void.”

“An attorney and his or her client are entitled to legally adequate notice of a request for sanctions and a legally adequate opportunity to present both evidence and argument (written and oral) in response to such a request.”

Filed 5/10/16 Perez v. Buckingham Property Management CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ----

JESUS PEREZ, C078253

Plaintiff and Appellant, (Super. Ct. No. 69026)

BUCKINGHAM PROPERTY MANAGEMENT, INC.,

Defendant and Respondent;

MICHAEL COGAN,

Objector and Appellant.

In this employment case, plaintiff Jesus Perez and his trial attorney, Michael Cogan, appeal from an order imposing $5,769.50 in sanctions on them in connection with a protective order quashing a deposition subpoena Cogan served on one of the attorneys

of record for defendant Buckingham Property Management, Inc. (Buckingham).1 Among other things, Perez and Cogan contend they did not receive adequate notice and opportunity to be heard on the issue of sanctions.2 We agree and therefore will reverse the sanctions order. To address the notice and opportunity to be heard argument, only limited procedural facts are necessary. Suffice it to say that Perez sued Buckingham for wrongful discharge and various Labor Code violations. Cogan represented Perez in the action. One of the attorneys who filed the answer to the complaint on behalf of Buckingham was Aimee Kircher. Trial was set to begin on January 20, 2015, and the discovery cutoff date was December 19, 2014. At a deposition in the matter on October 29, 2014, Cogan served a deposition subpoena on Kircher with the deposition set for December 3. The two attorneys exchanged various e-mails regarding the subject in the days that followed. Then, on November 6, attorney Brian Cuttone notified Cogan that his firm had been retained as special counsel for Buckingham to handle the deposition subpoena. Cuttone and Cogan corresponded by e-mail numerous times between November 6 and 13 on the subject of the subpoena. Cuttone took the position that Cogan needed to show “ ‘extremely good cause’ ” to depose Kircher and that he had not done so. Accordingly, on November 13 Cuttone informed Cogan that if he did not withdraw the subpoena by the following day, Cuttone would file an ex parte application for a protective order or an order shortening time, to be heard at 1:30 p.m. on November 19. Cuttone did not mention an intent to seek sanctions. Cogan did not withdraw the subpoena. Accordingly,

Perez v. Buckingham Property Management CA3

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JESUS PEREZ, C078253

BUCKINGHAM PROPERTY MANAGEMENT, INC.,

MICHAEL COGAN,

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