Tuttle
Tuttle v. Combined Insurance
Opinion
Dissenting Opinion
Kleinfeld, J.
dissenting.
I respectfully dissent.
The magistrate judge imposed separate sanctions on Michael Capíes, and on Combined Insurance. The theory of the sanction was that Capíes and Combined’s house counsel, Michael Hudson, pressured plaintiffs witness, Martha Detrick, to make herself unavailable for trial.
The case went to trial without Detrick, so one would expect plaintiffs counsel, who lost at trial, vigorously to support this sanction for chasing away his witness. That has not happened. The unsuccessful plaintiff has not filed a brief supporting the sanction on Capíes. Combined Insurance has not appealed.
The plaintiff, suing her employer, had arranged for a friend who was a fellow employee to fly to the trial location and testify for her. Capíes and Hudson, Combined’s house counsel, were angry and upset. They thought something tricky was going on. The sanction arises out of their interview with the witness on the eve of trial.
Capíes, like any conscientious lawyer, sought to interview the witness. Lawyers are supposed to interview witnesses before trial. We have frequently, in the criminal context, held that it is ineffective assistance of counsel to fail to interview a…
Lead Opinion
*621 MEMORANDUM **
I.
Michael Capíes, Combined Insurance’s attorney, appeals the district court’s order sanctioning him $5000 for violating California State Bar Rules of Professional Conduct Rule 5-310 by causing a person to leave the jurisdiction of the court and become unavailable as a witness.
II.
We review a district court’s imposition of sanctions for an abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 55 , 111 S.Ct. 2123 , 115 L.Ed.2d 27 (1991); In re Keegan Management Co., 78 F.3d 431 , 436 (9th Cir.1996). We will reverse a district court’s factual findings as to whether an attorney acted recklessly or in bad faith only if they are clearly erroneous. Pacific Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1117 (9th Cir. 2000). “So long as the district court’s view of the evidence is plausible in light of the record viewed in its entirety, it cannot be clearly erroneous, even if the reviewing court would have weighed the evidence differently had it sat as the trier of fact.” S.E.C. v. Rubera, 350 F.3d 1084, 1093-94 (9th Cir.2003).