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Apodaca v. Chodos1/31/2002
ch issue. (Id. at p. 1016.) A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion. (Ibid.) Among the factors the court should consider are the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, and the prospects for success. (Ibid.) A trial judge's perceptions on such matters, inherently factual in nature at least in part, must not be lightly disturbed. (Ibid.)
Mindful of the abuse of discretion standard of review and that the trial court's exercise of discretion is not to be lightly disturbed, we nevertheless conclude that the trial court abused its discretion in imposing sanctions on Chodos under the unique facts of this case. Chodos filed only a "qualified opposition," indicating that he would be willing to forego Kohn's deposition if Kohn assured him that he would not be a witness and had no information other than what his client had already revealed. However, Kohn never gave Chodos answers to his questions until the time of hearing on the motion, when the trial court asked Kohn directly and Kohn admitted that he had no intention of being a witness in this case.
Overwhelming evidence in this record thus reveals that the motion and the expenses incurred in bringing the motion could have been avoided if Kohn had simply responded to Chodos's earlier request for the assurance he sought, instead of waiting until they were before the court on the hearing on the motion. The fact that the trial court felt compelled to clarify the matter by asking Kohn directly whether he intended to be a witness in the case demonstrates that Chodos was not without substantial justification in making his qualified opposition and in seeking from Kohn the same assurance the trial court was able to elicit. The fact that Chodos was not able to meet all the Spectra-Physics requirements, and that his opposition to the motion on Spectra-Physics grounds was without merit, does not mean that the imposition of sanctions was mandatory. Where, as here, all the evidence and reasonable inferences therefrom indicate that Chodos did all he reasonably could to resolve the matter informally, and that Kohn easily could have avoided the pursuit of the motion for protective order, the circumstances are such as to make the imposition of sanctions against Chodos unjust.
DISPOSITION
The sanctions order against Chodos is reversed. Appellant to bear his own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
WOODS, J.
PERLUSS, J.
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