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Apodaca v. Chodos1/31/2002
, who declared that his review of the case "and subsequent inquiry and investigation has determined that the facts of this case require [Apodaca] to amend her pleadings to add causes of action" and to name "further and additional defendants." Hearing on the motion to amend the complaint was set for May 3.
On March 26, 2001, Chodos noticed the deposition of attorney Leonard Kohn for a date in April 2001; the notice requested Kohn to produce, among other documents, any writings or materials he reviewed in making the inquiry and investigation to which he referred in his declaration in support of the motion to amend the complaint.
On March 28, 2001, Kohn wrote a "meet and confer" letter to Chodos, claiming that the purpose of noticing his deposition was to intimidate and harass him, and the information he sought about the case was available from other sources other than his deposition. Kohn asked Chodos to withdraw the notice for his deposition and stated that Chodos's failure to do so would require him to file a motion for protective order and sanctions. Chodos responded to Kohn's letter by a letter of his own, stating that he was entitled to cross-examine Kohn on the statement in his declaration that he had conducted an inquiry and investigation, and was entitled to know what facts Kohn discovered about Chodos's alleged involvement in the assault and battery. Chodos wrote that unless the court issued a protective order, he intended to proceed with Kohn's deposition.
On April 13, 2001, plaintiff filed motion for protective order and sanctions, which was set for hearing on May 17, 2001.
On May 1, 2001, Chodos filed a "qualified opposition" to Kohn's motion to quash deposition. Chodos admitted therein that between the time he noticed Kohn's deposition and May 1, Apodaca's deposition had been taken and "it is no longer as urgent to Mr. Chodos to take Mr. Kohn's deposition -- unless he persists in proffering testimony . . . ." Chodos also stated that "If Mr. Kohn is not going to be a witness and has no information more than his client has already revealed, he should swear an affidavit to that effect and Mr. Chodos will withdraw the subpoena."
Plaintiff filed a reply to Chodos's "qualified opposition," which did not provide the assurances sought by Chodos. At the hearing on the motion for protective order, the court elicited from Kohn an admission that he had no intention of being a witness in this case. The court granted the motion, quashed the notice of deposition, and awarded plaintiff sanctions against Chodos in the amount of $1,023, pursuant to Code of Civil Procedure sections 2025, subdivision (j)(3), and 2023, subdivision (a)(4) ; the court found that Chodos did not act with substantial justification in that he made no showing as to two of the three criteria for taking the deposition of a party's attorney under Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487.
Chodos filed timely notice of appeal, seeking review only of the imposition of the monetary sanctions.
DISCUSSION
"`Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.'" (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-1013.) The Discovery Act requires that, prior to the initiation of a motion, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of ea
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