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Apodaca v. Chodos1/31/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Rafael Chodos (Chodos), a lawyer, appeals from a May 17, 2001, order imposing on him discovery sanctions in the amount of $1,023, for opposing a motion for protective order and to quash deposition.
We agree with appellant that the trial court abused its discretion in concluding under the instant factual and procedural posture that Chodos's opposition was without substantial justification and warranted sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Mariane Apodaca (Apodaca) had a child support order issued in her favor against Lloyd Forcellini (Forcellini); a wage garnishment order had also been issued as to Forcellini's wages from his employment at Las Palmas Productions. Apodaca was apparently not receiving the garnishment checks in a timely manner, so on May 3, 2000, her lawyer contacted Rafael Chodos, the lawyer for Las Palmas. Apodaca's lawyer asked that Chodos arrange with Las Palmas for Apodaca personally to pick up her check that day. Chodos told Apodaca's lawyer that she could pick up her check later that day. Apodaca's lawyer told Chodos that Forcellini had threatened Apodaca with violence and was being assisted in his harassment of her by Las Palmas's bookkeeper, Glenn Sarte (Sarte).
According to Keith Alexander (Alexander), a Las Palmas's employee working in the reception area, Apodaca was waiting at the front desk in the lobby at Las Palmas for her check when Forcellini's current girlfriend, Iveta Kovarik (Kovarik), came up to her and said something which precipitated a physical altercation between the two women. Alexander allegedly called Forcellini to the scene, who then became embroiled in the physical altercation with his past and present girlfriends. When it was over, Apodaca sustained physical injuries.
In August 2000, Apodaca filed a complaint for damages for assault and battery against Forcellini, Sarte, Alexander, and Las Palmas Productions. Kovarik was named as a defendant but never served. Chodos represented Las Palmas, Sarte, and Alexander. The latter defendants noticed Apodaca's deposition for a date in October 2000; after several new dates were negotiated, Apodaca failed to appear at her deposition scheduled for December 5. Defendants made a motion to compel her appearance at deposition, which motion was granted. In January 2000, Apodaca substituted in new counsel to represent her. When Apodaca failed to appear at her court-ordered deposition, set for February 12, 2001, defendants filed a motion for monetary and terminating sanctions. Finding that terminating sanctions were not warranted at that time, the court again ordered Apodaca to appear for her deposition and awarded defendants sanctions against her for $1,175. Apodaca was deposed on March 30, 2001.
Meanwhile, a trial date was set for July 10, 2001. On March 2, 2001, plaintiff filed amendments to her complaint naming Chodos and his professional corporation as Doe defendants. On March 23, 2001, plaintiff filed a motion for leave to file a first amended complaint, adding new defendants and causes of action. Plaintiff asserted against Chodos, alleged to be an employee and agent of Las Palmas, causes of action for battery, assault, negligence, and intentional and negligent infliction of emotional distress. The motion was supported by the declaration of Apodaca's attorney, Leonard Kohn
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