Key Decisions

September 2012 – Trial Court Found A Plaintiff Was Not Entitled To Certain Discovery

(filed under: Key Decisions Archive | September 26, 2012)

Even Though The Trial Court Found A Plaintiff Was Not Entitled To Certain Discovery, The Plaintiff Was Substantially Justified In Moving To Compel

Diepenbrock v. Brown
(Cal. Ct. of App., 1st Dist.), filed July 31, 2012


Claire Diepenbrock sued Kyle Brown and others for serious personal injuries she suffered when struck on her bicycle by a car driven by Kyle Brown. She did not, however, sue Derek Brown, Kyle’s husband. After Kyle pleaded guilty in separate criminal proceedings to the felony of driving under the influence of a prescription medication, the trial court permitted Diepenbrock to amend her complaint to add a claim for attorney fees under Code of Civil Procedure section 1021.4. The trial court also granted Diepenbrock’s motion for discovery relative to Kyle’s financial condition.

Diepenbrock noticed Derek’s deposition and requested production of, among other things, documents relating to the Browns’ financial condition. Derek appeared at the deposition and answered some questions. However, the deposition was adjourned after the attorneys could not reach an agreement regarding the scope and applicability of the marital privilege. Derek asserted the marital privilege and refused to answer such questions as whether the vehicle involved in the accident was purchased with community assets, whether he had any concerns about his wife driving because of her existing medical conditions, and whether he ever discussed with his wife that she was abusing prescription medication.

Diepenbrock filed a motion to compel Derek to answer the disputed questions. In response, Derek sought a protective order precluding his further examination on the ground that the information is protected by the marital privilege. Both motions sought sanctions against the opposing party.

The trial court granted Derek’s request for a protective order and entered an order awarding sanctions against Diepenbrock and her attorney in favor of Derek Brown and his attorney.


The Court of Appeals reversed the sanction award.

The court first held that although an order or judgment imposing sanctions in an amount of $5,000 or less is ordinarily not appealable until entry of a final judgment, the one before it was appealable as a final judgment on a collateral matter. The court reasoned that the order finally resolved all issues between Diepenbrock and her attorney on the one hand and Derek and his attorney on the other.

The court then turned to the question of sanctions. The answer turned on whether Diepenbrock was “substantially justified” in making a motion to compel and opposing Derek’s motion for a protective order.

“Substantial justification” as used in the discovery statutes means a justification that is “well-grounded in both law and fact.”

The court found that the law regarding implied waiver of the marital privilege when one spouse is suing or being sued and community assets are at stake was unsettled and Diepenbrock and her attorney’s argument was based on available authority. As a result Diepenbrock’s position was not unreasonable. Even though the trial court rejected Diepenbrock’s position, she did not act without substantial justification.


Although the court ruled on the propriety of sanctions, it did so based only on the fact that Diepenbrock’s motion was well-grounded in both law and fact. The court did not consider whether the trial court erred in denying Diepenbrock’s motion to compel as that issue was not properly before it.