Newsletter – January 2020
In Dalessandro v. Mitchell, No. B293472 (Ct. App. Dec. 17, 2019), the Court of Appeal affirmed the trial court’s denial of a creditor and his attorney’s attempts to compel a debtor to produce documents, affirming discovery sanctions against the attorney in the process. While the dispute between the parties was contentious, the simple failure to affix postage to discovery requests (among other issues) doomed the creditor’s arguments.
Facts of the Case
James Dalessandro and his attorney Paul Levine made attempts to collect on a judgment owed to Dalessandro by Eric Mitchell. As part of their efforts, Dalessandro requested that Mitchell produce various documents. When Mitchell failed to respond to the request, Dalessandro filed a motion to compel production with the court.
The trial court denied Dalessandro’s motion and ordered Levine to pay about $3,500 in sanctions to Mitchell because he failed to comply with discovery rules and procedures. For example, Levine did not affix postage to the requests for production of documents which is required under Code of Civil Procedure Section 684.120. Moreover, the court found that the proof of service asserting the discovery requests had been properly mailed and Levine’s declaration in support of the motion to compel were false. Both Levine and Dalessandro appealed.
Deficient Document Requests Warranted Denial of the Motion to Compel and Discovery Sanctions
First, the Court of Appeal made the point in its opinion that the parties were “approaching frivolity, but [had] not yet crossed into that territory” due to unnecessary filings during the briefing process. The opinion discussed whether Dalessandro even has standing to file an appeal. Due to a split in case law authority, some courts have found that orders denying motions to compel document production are appealable, while others have not. While the Court agreed that the order was not appealable, it decided to consider the issues raised in Dalessandro’s case regardless; most likely as an instructive tool for practitioners engaged in “hard ball” discovery tactics.
Further, the Court of Appeal agreed with the trial court that Mitchell did not have to respond to the requests for production of documents because of the lack of postage for the purportedly sent requests. “Mitchell was not required to respond to a demand that was not served.” This absence of postage made service of the requests improper under the Code. Also, there is no requirement under the California Discovery Act that Mitchell’s counsel “meet and confer” with Levine to alert the lawyer to the deficiencies in the written discovery. Section 2031.3300 does not require the trial court to make a finding of “lack of substantial justification” to impose discovery sanctions.
Moreover, despite Dalessandro’s protests, the California Discovery Act did not require that Mitchell file a separate motion to obtain discovery sanctions. Requesting sanctions as part of the opposition is a sufficient vehicle for the court to award sanctions to the responding party. .
Finally, the Court of Appeal rejected the moving party’s argument that Mitchell could not recover attorneys’ fees because he was unrepresented during the hearing on Dalessandro’s motion to compel. In fact, the record showed that he was represented by counsel during part of the case and only sought to recover attorneys’ fees for that work.
The California Discovery Act has strict requirements for service of discovery. Signing a false proof of service asserting that the written discovery was properly mailed (with postage) was a huge error. Proof of service need to be accurate. Before filing a discovery motion, the moving party must double check the discovery requests at issue to make sure they are procedurally correct. This motion failed for the want of a single stamp.