Aboytes v FCA, San Mateo County Superior Court Case Number 18-CIV-00789.


From the San Mateo online court records it is Lawzilla's understanding the following occurred:

Attorney David Barry of The Barry Law Firm represents the plaintiff in a lemon law auto case.




David Barry, Esq., filed a declaration under penalty of perjury with the court stating he is the attorney primarily responsible for the case, and that he is familiar with all the activities in the case.




The defendant claimed it had attempted to schedule plaintiff's deposition for about seven months.

It alleged attorney David Barry had employed a "delay and stonewall tactic" in order to run up his legal fees and "extort settlements".

Defendant asked to stop this tactic "by assessing sanctions to Plaintiff's attorneys."




Defendant submitted a chronology of events showing three times it was claimed the Barry Law Firm ignored or was non-responsive in attempts to schedule the deposition.




In opposition, attorney Barry submitted a declaration omitting reference to defendant's chronology of meet and confer attempts before filing a motion.

Instead, his declaration said after the motion was filed his office then made attempts to set the deposition.




Attorney David Barry also made a legal argument that defendant's motion should be denied because there was no separate statement as required by California Rule of Court 3.1345.




In reply, defendant's lawyer called Barry's actions "outrageous".

He opined that in 30 years of practicing Barry's opposition brief was one of the most "audacious and flippant" oppositions he had read.




The judge then reviewed the situation and issued an order.

First, the court said the motion to compel plaintiff's deposition was granted and ordered plaintiff to appear for testimony within 14 days.

Then the judge said attorney Barry had cited a statute in his opposition that was inapplicable because it dealt with interrogatories and not depositions.

The judge ruled plaintiff did "not cooperate" in getting the deposition done until after the motion to compel was filed.

The court noted defendant offered to withdraw the motion to compel if a deposition date was agreed to, but Barry's law firm failed to follow-up on the offer.

The judge said Rule of Court 3.1345 does not apply to a motion to compel a deposition and Barry had failed to cite any pertinent part of the rule.

Finally, the granted granted defendant's requested sanctions of $2060.

Lawzilla had a few concerns from reading the order and briefs.

Barry's omission in his declaration of a rebuttal to defendant's claimed attempts to schedule the deposition seemed glaring and an admission of a problem likely to lead to sanctions.

Facing sanctions, it then seemed inexplicable from what we read in the court order as to why David Barry and his firm would not take up defendant's offer to withdraw the motion and set the deposition. It also did not appear to us that claimed emails in Barry's declaration were actually provided.

Finally, and perhaps most importantly, what is up with citing laws that do not apply?

Twice the judge referred to legal arguments David Barry was making and noting either the law was inapplicable or did not state what Barry claimed it did.

To us, that goes to attorney competence.



Bottom line: lawyers always seem to claim they are awesome, aggressive, efficient, successful, etc. We find it interesting to read what is actually happening in a case.

Is the attorney aggressive or non-responsive?

Is the attorney making good legal arguments?

Is the attorney winning sanctions? Or getting sanctioned?

This is just one case and one motion, but probably something we would ask attorney David Barry to be frank about if considering hiring his law firm.

David Barry was admitted to the California Bar in 2002. Bar Number 219230.

The Barry Law Firm
11845 West Olympic Boulevard Suite 1270
Los Angeles, California 90064-

Law School: Pepperdine University

Sanctions are Recoverable as a Judgment - Analysis of the little known fact that sanctions awarded in a lawsuit can be enforced as their own separate judgment. Surprise someone by putting a lien on their bank account, home, wages, etc.