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Tucker v. Pacific Bell Mobile Services

July 29, 2010

DIANE TUCKER ET AL., PLAINTIFFS AND APPELLANTS,
v.
PACIFIC BELL MOBILE SERVICES ET AL., DEFENDANTS AND RESPONDENTS.



(San Mateo County Super. Ct. No. CIV436164), Steven L. Dylina, Judge.

The opinion of the court was delivered by: Jones, P.J.

CERTIFIED FOR PUBLICATION

In this proposed class action, plaintiffs allege defendant cell phone providers, Pacific Bell Mobile Services and Cingular Wireless LLC (collectively defendants) violated the Unfair Competition Law (Bus. & Prof., § 17200 et seq.) by selling "'bucket plans'" without informing consumers how the length of each telephone call would be calculated.*fn1

In early 2009, defendants deposed plaintiff Julia Knapp. During the deposition, plaintiffs' counsel, J. David Franklin, wrote on a legal pad and showed it to Knapp. Franklin also instructed Knapp not to answer questions related to her standing to bring the action and refused to permit defense counsel to question Knapp about the notes on the legal pad. After the deposition, Franklin threw away the notes. Defendants moved for sanctions against plaintiffs and Franklin.

The trial court granted the motion in part and imposed monetary sanctions in the amount of $7,500 pursuant to Code of Civil Procedure section 2030.030.*fn2 The court determined Franklin had coached Knapp on the "very critical issue [of] standing" and therefore abused the discovery process during the deposition. The court's order stated: "Defendants' motion is granted as to Defendants' request that they be awarded their costs in the amount of $7,500.00 incurred in: (1) further deposing Plaintiff Julie Knapp as to her review of Mr. Franklin's notebook and any questions that Mr. Franklin instructed her not to answer that were not subject to any privilege; and (2) bringing this motion pursuant to Section 2023.030(a)...."*fn3

Plaintiffs appeal. They contend: (1) the motion was "not properly brought;" (2) defense counsel committed misconduct and made "false representations" to "influence the court to grant [the] motion for sanctions;" (3) Franklin properly instructed Knapp not to answer on the basis of the attorney-client privilege; (4) Franklin did not knowingly destroy evidence; and (5) the court erred in awarding sanctions "for the purpose of re-deposing" Knapp.

We conclude the court did not have the authority to award sanctions for "further deposing Plaintiff Julie Knapp" because defendants had not "incurred" those expenses within the meaning of section 2023.030, subdivision (a). Accordingly, we reverse the portion of the court's order that awards monetary sanctions related to anticipated costs of a future deposition. In all other respects, we affirm the sanction award.*fn4

FACTUAL AND PROCEDURAL BACKGROUND

In the operative fourth amended complaint, plaintiffs Knapp, Angela Rel, and Monica Zoe Hodge alleged, on behalf of a class of similarly situated people, that defendants violated the Unfair Competition Law by "making false and deceptive representations in the promotion, marketing and sale of airtime minutes to their subscribers and prospective subscribers[.]" Among other things, plaintiffs claimed defendants sold "bucket plans" without disclosing "that the number of airtime minutes actually available as conversation minutes... are 25% less than what is represented to subscribers and potential subscribers." Plaintiffs sought damages, restitution, and injunctive relief.

Knapp's Deposition

Defendants deposed Knapp in January 2009. The parties stipulated that Knapp's deposition could be used in the Orange County action and in the case pending in San Mateo Superior Court. Plaintiffs' counsel, Franklin, sat next to Knapp during the deposition. Defendants' attorney, Michael Stortz, began the deposition by asking Knapp questions about her standing under Proposition 64 in the Orange County action. She answered those questions. When Stortz started to question Knapp about the allegations in the San Mateo complaint, the following exchange occurred:

"Q: Okay. And I'm going to go through the same general set of questions that we had on the complaint in the other action [the Orange County action].... [L]et me ask you: You look like you're reviewing Mr. Franklin's notepad, and I want to focus your attention that if you need to review his notepad, by all means you should feel free. Is that fair? I - I am entitled to get your testimony -

A: Yes.

Q: - without any, you know, suggestion from your counsel. Is that clear?

A: Uh-huh.

Q: Okay. So I'd ask you to direct your attention to me. I mean, am I misstating? Were you looking at Mr. Franklin's notepad?

A: Yeah. Just for a second.

Q: What were you reading there?

Mr. Franklin: This is privileged information. Do not answer that. Attorney-client privilege.

Mr. Stortz: Well -

Mr. Franklin: Don't answer the question.

By Mr. Stortz:

Q: Were you reading something off of Mr. Franklin's notepad?

A: I'm not supposed to answer the question.

By Mr. Stortz:

Q: Were you reading something off of Mr. Franklin's notepad?

Mr. Franklin: Don't answer the question.

Q: Are you going to follow your counsel's instruction not to answer the question?

A: Yes.

Q: Okay. Do you think it's appropriate for you to be reading something off of Mr. Franklin's notepad?

Mr. Franklin: It's not up to her to determine that. Don't answer that question either. That's a ridiculous question.

Q: Are you going to follow your counsel's instruction not to answer?

A: Yes.

Q: Okay. You understand that I'm entitled to your testimony here today -

A: Yes.

Q: - without any testimony that is provided by your counsel, correct?

Mr. Franklin: Don't answer that question either. ...


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