A recent news story underscored the perils of discovery “gamesmanship.” On December 28, 2017, Brad Racino reported for inewsource that the Court of Appeal, Fourth Appellate District, Division Two, reversed itself and ordered its November 28th opinion published. That decision upheld trial court issue sanctions — effectively, terminating sanctions — involving local lawyer, Cory Briggs, and his law firm.1 Briggs Law Corporation represented CREED-21 in a CEQA action challenging a proposed Wal-Mart in the City of Wildomar. The trial court held that Briggs’ client, CREED-21, had “willfully failed to obey” two court orders to produce a person most qualified (“PMQ”) for a deposition and pay $3,000 discovery sanctions.
An Issue of Standing
As the Court of Appeal opinion recited, the City and Wal-Mart’s lawyers had argued that CREED-21 lacked standing, contending it was a shell Briggs used to recovery attorney fees. Beginning in August 2015, they sought documents and a PMQ deposition to challenge CREED-21’s standing. They asserted that CREED-21 is registered at Briggs Law Corporation’s address; that it had no assets; and that in lawsuits in which money was awarded to CREED-21, the money was given to Briggs’ law firm. An earlier deposition evidenced that the law firm prepared all of CREED-21’s tax filings; that CREED-21 had no money or employees; and that Briggs Law Corporation fronted the money for any lawsuits CREED-21 filed and paid any fees it owed.
Attempt to Depose the PMQ
CREED-21 objected to initial notices of deposition, contending that no discovery was allowed in a mandamus proceeding, and that the deposition location was 75 miles from the PMQ’s residence, but it refused to disclose that address so another location could be found. Another round of deposition notices, but still no PMQ. A motion to compel followed.
On January 5, 2016, the trial court ruled CREED-21 had to produce its PMQ for deposition, and all requested documents, and awarded Wal-Mart $3,000 in discovery sanctions. The court reiterated that order with another on February 1: CREED-21 had to produce its witness by February 8.
As an aside, CREED-21’s lawyer had notified Wal-Mart by email that he intended to appear at oral argument and challenge the court’s tentative ruling; Riverside Superior Court’s Local Rule, however, required telephone notice. In response to the lawyer’s motion for relief — acknowledging he was unaware of the local rule — Wal-Mart argued that failure to check the local rules was professional incompetence, not a mistake justifying relief. The trial court agreed and denied the motion for relief.
The Order Remained
On February 4, the trial court denied an ex parte application to continue the deposition. On February 6, the Court of Appeal denied CREED-21’s petition for a writ of mandate for an immediate stay — as the February 8 deadline grew closer.
February 8 came and went. The deponent never appeared, with Briggs contending he was caring for an ill parent.
In ruling on Wal-Mart’s motion for money and issue sanctions, the trial court found the defendants had tried to work with CREED-21, but got nowhere and that CREED-21 had not shown good faith. Instead, CREED-21’s motion for relief attempted to push the deposition beyond the date when the defendants had to file opposition briefs. Even after the appellate court denied the writ petition, CREED-21 did not comply with the court’s orders, and, further, did not pay the $3,000 sanction.
“Adding that into the equation, as well, I see that there’s no sanction that is going to result in achieving what defense was attempting to achieve when they first noticed the deposition. Nothing has worked. Multiple orders have been made. Sanctions have been imposed. Nothing except further delay in the proceedings. And I don’t think at this point in light of the history, the defense should have to choose between getting this deposition and delaying the hearing on the merits.” So, the court imposed the issue sanction as to standing — the same as a terminating sanction — and entered a judgment dismissing the case.
The Court of Appeal
The appellate court acknowledged that CREED-21 initially refused discovery based on a legal challenge. But once the court rejected that challenge, it failed to comply with the trial court’s orders.
Since two court orders and money sanctions did nothing to convince CREED-21 to produce its PMQ for deposition, the trial court did not abuse its discretion in issuing terminating sanctions. In affirming the trial court, the Court of Appeal said, “Based on the entire record of the discovery abuse by counsel for CREED-21, the imposition of a terminating sanction did not constitute an arbitrary or capricious action.”
Initially, the Court of Appeal did not order its opinion to be published. Requests, however, from several parties and law firms that had dealt with Briggs in other litigation convinced the court to reverse itself. Its decision is now citable precedent. Lawyers quoted in the Racino article predict the decision will get extensive use in future Briggs litigation.
In addition, the State Bar Act, Business, Professions Code section 6103, makes willful disobedience of a court order a ground for suspension or disbarment; Business and Professions Code section 6068, subdivision (b) mandates that a lawyer maintain the respect due to the courts and judicial officers.
Did the conduct in this case create sufficient ill will that a party or lawyer will file a State Bar complaint? That is unknown, but the appellate court’s now published opinion would be an uncomfortable backdrop.
1 CREED-21 v. City of Wildomar (2017) _Cal.app.5th _, Case No. E066367 (Nov. 28, 2017).
**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**