A Findings of Fact, Award & Order dated October 22, 2021 concluded that Terri Scott suffered 100% permanent disability as a result of injuries caused by her employment as a peace officer by the City of Los Angeles. On November 15, 2021 the City of Los Angeles filed a Petition for Reconsideration of that Order.
While the case was pending at the Reconsideration Unit, on December 30, 2021, the City of Los Angeles filed a motion and a DOR to quash the deposition of Bryant Yip, deputy city attorney, scheduled for January 7. Yip alleged “bad faith, frivolous and harassing actions and tactics in setting deposition of opposing counsel” and conditioning “withdrawal of the [deposition] subpoena on withdrawal of defendant’s petition for reconsideration.”
Reconsideration of the 100% award was denied on January 12, 2022.
On January 10, 2022, Ms. Falter, an attorney for officer Scott, filed her petition for sanction essentially accusing Mr. Yip of making false material statements in his petition for reconsideration. Ms. Falter averred that Mr. Yip “[wa]s lying threw [sic] his teeth” with the “nten[tion] to disenfranchise a dedicated and decorated police officer from her rightful workers’ compensation benefits under the law.”
On January 18, 2022, the WCJ issued his notice of intention to impose sanctions and costs against applicant’s attorneys Asvar Law, PC, Christopher Asvar and Theresia Falter. On February 8, Falter filed a verified declaration objecting to imposition of sanctions for various reasons.
On February 11, 2022 the WCJ ordered applicant’s attorneys, Asvar Law, Christopher Asvar and Theresia Falterthem to jointly and severally pay (1) sanctions to the general fund of $1,500.00; and (2) costs to defendant of $6,800.00.
Applicant attorneys petition for reconsideration of this sanction order was granted, and the matter remanded to further develop the record in the WCAB panel decision of Terri Scott v City of Los Angeles – ADJ9671636 (June, 2022).
Applicant’s attorneys argue that they are entitled to depose defendant’s attorney and to a determination of the merits of their petition against defendant’s attorney before the WCJ may determine this issue of whether sanctions should be imposed against them.
Ordinarily a party may take the deposition of any person. (Code Civ. Proc. § 2025.010). However, “[d]epositions of opposing counsel are presumptively improper, severely restricted, and require “extremely” good cause – a high standard.” (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.)
The WCAB panel noted that the “circumstances under which opposing counsel may be deposed are limited to where (1) no other means exist to obtain the information than to depose the opposing counsel; (2) the information sought is relevant and not privileged; and (3) the information is crucial to the preparation of the case. (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1496; Carehouse, supra, 143 Cal.App.4th at p. 1563.).”
The panel went on to note that “the pleadings posture in this case is that defendant’s attorney sought sanctions against applicant’s attorneys before applicant’s attorneys made any attempt, much less a successful one, to establish their alleged entitlement to depose him.”
“But since the merits of applicant’s disability claim as well as defendant’s petition for reconsideration of the findings thereon have been determined in applicant’s favor, we are unable to discern what, if any, issue pending in applicant’s case could be ripe for discovery, much less how defendant’s attorney could be in possession of information crucial to the issue which would only be discoverable through deposition.“
Thus the panel “conclude[d] applicant’s attorneys’ argument that that they should be allowed to depose defendant’s attorney and have their sanctions petition determined before sanctions may be imposed against them lack merit.“
However, instead of issuing the NOI and determining the sanctions issue based upon applicant’s attorneys’ written response, the WCAB panel said that “the WCJ should have obtained a pretrial conference statement from the parties on the sanctions issues, held a pretrial conference at which the specific issues and stipulations on the petitions could be framed, and held a hearing thereon”.
“Because the NOI’s allegations originated with defendant’s attorney and concerned conduct outside of court which the WCJ did not observe, it did not fully apprise applicant’s attorneys of the evidence against them or provide a meaningful opportunity for them to offer evidence against sanctions”. (See also, e.g., Cal. Code Regs., tit. 8, former § 10561(a)(b) now § 10421(a)(b); see also Cal. Code Regs., tit. 8, former § 10349 now § 10832 (authorizing the WCJ to imposes sanctions and costs on the court’s own motion through the notice of intention procedure) [Emphasis added.].)
Accordingly, the WCAB granted reconsideration and rescinded the Order, and the matter was returned to the trial level for further proceedings consistent with this decision.