Judge: Elaine W. Mandel, Case: 21SMCV00399, Date: 2023-02-28 Tentative Ruling

Case Number: 21SMCV00399    Hearing Date: February 28, 2023    Dept: P

Tentative Ruling

Albinali v. Calvert et al., Case No. 21SMCV00399

Hearing Date February 28, 2023

Defendant Calvert’s Motion for Order Dismissing Action and Imposing Monetary Sanctions (UNOPPOSED)

On December 15, 2022 the court issued a minute order stating plaintiff Albinali had failed to appear for her court-ordered deposition. Albinali was ordered to appear by December 23, 2022 and pay $7,000 in sanctions. The order stated the court would consider terminating sanctions if Albinali again failed to comply. Defendant Calvert moves for terminating sanctions, as Albinali failed to appear.

A court may order sanctions, up to and including terminating sanctions, for disobeying a discovery order. Cal. Code of Civ. Proc. §§ 2023.010, 2023.030. Terminating sanctions are meant to be remedial, not punitive, and should generally not be imposed unless lesser sanctions fail to induce compliance. Lopez v. Watchtower Bible & Tract. Soc. Of New York, Inc. (2015) 246 CA4th 566, 604.

On November 7, 2022 the court granted defendant Calvert’s motion to compel plaintiff’s deposition within 20 days. 11/7/22 minute order. Plaintiff failed to agree upon a date within that time. Calvert moved ex parte for terminating sanctions, resulting in the 12/15/22 order detailed above. Plaintiff has not complied or disputed that allegation. Lesser sanctions—including monetary sanctions and a specific warning in the prior minute order – have been insufficient to induce plaintiff’s compliance. Therefore, terminating sanctions are warranted.

Calvert also seeks sanctions of $56,070, the alleged amount of costs and fees incurred attempting to compel the deposition. While monetary sanctions are justified, the amount sought is not reasonable. Attorney Totino’s declaration in support of the sanctions request, indicates excessive time was spent on various tasks. Associate attorney Stackhouse spent 27.7 hours researching and preparing a motion to compel the deposition testimony and a subsequent reply brief, and 16.5 hours researching and drafting the instant motion. Both are excessive. Per the declaration, Pierre Weiner, a senior partner, spent several hours reviewing papers. The declaration does not explain why review by a senior partner, at $1,260/hour, is reasonable or necessary.

The following is requested

• August 2022 Status report re: plaintiff's failure to complete her deposition (4.8 Totino hours at $1,084.5) – 3 hours is reasonable.
• September 2022 Motion to Compel Further Deposition testimony and reply (9.9 Totino hours, 27.7 Stackhouse hours at $571.50, 5 Brockway hours at $378, 2.3 Weiner -- senior partner -- hours at $1,260.) – over 40 hours on this project is blatantly unreasonable. The court awards 10 hours for Stackhouse’s motion preparation; 4 hours for the reply, plus 4 hours of Totino’s time for review
• October 2022 opposition to plaintiff's ex parte (1.9 Totino hours, 1.2 Weiner hours) – 2 hours total is reasonable
• October 2022 status conference statement (.7 hours) – this amount is reasonable
• January 2023 final status conference prep. and attendance (2.5 Totino hours) – this amount is reasonable
• Time spent on the instant motion (2 Totino hours, 16.5 Stackhouse hours) – 18.5 hours is not reasonable; the court will award 10 hours of Stackhouse’s time; 2 hours of Totino time

The court GRANTS the motion for terminating sanctions. Calvert may submit an order reflecting the fee amounts above.