2012-00128969-CU-BT

Altergy Systems vs. Terry Carlone

Nature of Proceeding:  Motion for Sanctions

Filed By: Thomas, David A.

Plaintiff and Cross-defendant Altergy Systems’ Motion for Sanctions against Defendant
and Cross-complainant Terry Carlone is DENIED in its entirety.

Altergy moves for an order (1) dismissing Carlone’s operative cross-complaint; (2)
precluding Carlone from introducing Amy Tucker as a witness or relying on her
deposition testimony in this action; (3) for a jury instruction describing Carlone’s theft of
the water glass used by Eric Mettler during Amy Tucker’s deposition and (4) for
payment of Altergy’s fees and costs in connection with this motion.              The motion is made on the grounds of Carlone’s asserted wrongful behavior during
Tucker’s deposition on October 30, 2013, conducted at the office of cross-defendant
Mettler’s counsel.  At the deposition of Tucker, the parties Carlone, Mettler and
Franklin were also present.  During a break in Tucker’s deposition, after the other
parties and their counsel had left the deposition room, Carlone was observed by the
receptionist. Carlone walked around the table, took an empty water glass that Mettler
had been using, placed it in a plastic baggie that he had brought with him, and then put
the bagged glass into his duffel bag. The office receptionist informed counsel for
Altergy and Mettler. When confronted, Carlone returned the glass, but refused to
answer any questions about his behavior, and departed the deposition.

Moving party Altergy now accuses Carlone of theft and of providing a perjurious
explanation of the water glass incident at Carlone’s deposition three weeks later.
Altergy accused Carlone of intent to fabricate false evidence against moving parties.
However, moving party has failed to establish any link between the Carlone’s unusual
behavior or his explanations for that behavior, and any issue relevant to in this
litigation.

The Court declines to exercise its inherent power to impose sanctions dismissing the
cross-complaint, or issue or evidentiary sanctions based on mere speculation alone.

Sanctions related to the trial of the matter (precluding Carlone from introducing Amy
Tucker as a witness or relying on her deposition testimony in this action or for a jury
instruction describing Carlone’s theft of the water glass used by Eric Mettler during
Amy Tucker’s deposition) are left for later determination by the trial judge.

The request for imposition of at least $22,630 in attorneys’ fees and costs in
connection with bringing this motion is also denied.  The facts here are clearly
distinguishable from  Tucker v. Pacific Bell Mobile Services (2010) 186 Cal. App. 4th
1548, 1558, relied upon by moving party, as no showing has been made in this action
that Carlone “obstructed basic discovery”  in the deposition here.  No statute
supporting any violation of C.C.P., sec. 2023.030 has been cited in support an award
of attorneys’ fees.  The Calif. courts have held that the absent legislative action, the
trial court lacks inherent power to impose monetary sanctions, as it would undermine
the adversary system. Bauguess v. Paine (1978) 22 Cal. 3d 626, 638-639.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.