Slemaker v. Woolley

Opinion

ORTEGA, J. Introduction

This is a purported appeal from an order of the superior court imposing sanctions on counsel for improperly suspending the deposition of a witness. We hold that the order is not separately appealable and dismiss the appeal.

Factual and Procedural History

On January 15, 1988, plaintiffs C. M. Slemaker and Roberta Slemaker served notice by telecopy to defendants’ counsel of depositions of two witnesses. The depositions were both noticed for January 25, 1988. Defense counsel claimed that since Monday January 18 was a holiday (Martin Luther King, Jr.’s, birthday) he was unaware of the notice until January 19.

Mr. Zimmerman, representing defendants John Woolley and Joan Woolley, attempted to reschedule the depositions, claiming that one of the defendants wanted to be present but couldn’t do so on such short notice. Mr. Denis, counsel for plaintiffs, refused to reschedule the depositions but later [1379]cancelled the first of the two. Mr. Zimmerman appeared for the second one and immediately suspended it invoking Code of Civil Procedure section 2025, subdivision (n).1 At this point the situation was overtaken by schoolyard protocol. Mr. Denis claims that Mr. Zimmerman threatened the court reporter and got her so upset she lost her train of thought. Mr. Zimmerman claims Mr. Denis accosted him out in the hallway and physically shoved him around causing him to leave without an exhibit he was waiting for. Not willing to resolve the discovery dispute between themselves like professionals, they each ran to an already overburdened superior court for relief.

After patiently listening to both counsel carry on, the trial court imposed $1,000 sanctions on Mr. Zimmerman’s firm. And, predictably, here came the appeal. While both counsel have expended prodigious energy in preparing their briefs, neither addressed the threshold question of whether the order is appealable until invited to do so by this court.

Contentions

Appellant contends: section 2025, subdivision (n) allows a party to suspend a deposition that is being taken in bad faith and seek a protective order; the notice of the deposition was defective and attempting to take the deposition nonetheless is bad faith; and even if that position is incorrect, sanctions should not have been imposed because counsel was acting in good faith under color of a statute.