Judge: Kerry Bensinger, Case: 20STCV22439, Date: 2023-02-21 Tentative Ruling

Case Number: 20STCV22439    Hearing Date: February 21, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On June 15, 2020, Connor Birnholz (“Plaintiff”) filed this action against Bret Whettam (“Defendant”) for injuries sustained during a motor vehicle collision.

The parties stipulated to continue the trial on December 2, 2022, and on January 5, 2023, the Court granted the coninuance.

Trial is presently set for September 21, 2023.

On December 30, 2022, Defendant filed the instant motion for monetary and issue sanctions due to Plaintiff’s repeated failure to appear for his stipulated independent medical examinations with an orthopedist.

On January 13, 2023, Plaintiff filed his opposition.

On January 19, 2023, Defendant filed his reply.

On January 27, 2023, this matter came for a hearing, and the Court denied the request for issue sanctions and instructed Defendant to file a supplemental declaration to support his claim for monetary sanctions.

On February 2, 2023, Defendant filed a supplement declaration as directed by the Court.

II.          LEGAL STANDARD

Code of Civil Procedure § 2023.030 provides for the imposition of certain sanctions where a party engages in conduct constituting the misuse of the discovery process.  Among those sanctions the Court may issue are monetary sanctions (subd. (a)), issue sanctions designating certain facts as established (subd. (b)), and evidentiary sanctions limiting matters that may be introduced as evidence (subd. (c)). Code of Civil Procedure § 2023.010, subd. (g) makes “disobeying a court order to provide discovery” a misuse of the discovery process, and Code of Civil Procedure § 2032.410 further provides authority to the Court to make an order requiring a person that fails to submit to a physical or mental examination to make any further orders that are just and impose additional sanctions up to and including terminating sanctions. 

The imposition of specific sanctions typically depends on the severity of the party’s transgression.  “The trial court cannot impose sanctions for misuse of the discovery process as a punishment.”  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) Rather, any given sanction must be “tailor[ed] to the harm caused by the withheld discovery.”  (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 36 (superseded by statute on other grounds).)  This is because “the purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.”  (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.)

Code Civ. Proc. §2023.030, subd. (c) & (d) authorizes the Court to impose terminating or evidentiary sanction due to a party’s misuse of the discovery process.  “A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to trial, thus implicating due process rights.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal. App. 4th 566, 604, review denied (July 27, 2016).) “Discovery sanctions should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.”  (Doppes, supra, 174 Cal. App. 4th at 992.)

III.        DISCUSSION

Here, Defendant argues that Plaintiff stipulated to two separate independent medical examinations on March 3, 2022. (Motion at pg. 3; Cosgrove Decl. ¶ 4, Exh. 1.) Plaintiff has attended a neurological independent medical examination, but Defendant claims that Plaintiff has failed twice to appear for his stipulated and noticed orthopedic independent medical examination. (Motion at pg. 3; Cosgrove Decl. ¶ 5.) Because of this repeated failure, Defendant requested the court to impose monetary and issue sanctions against Plaintiff. (Motion at pp. 6-7.)  

At the initial hearing, the Court denied the request for issue sanctions.  The Court continued the matter to allow Defense counsel to submit a declaration, that was previously missing, justifying monetary sanctions.  The matter is before the Court to determine the issue of monetary sanctions.

Monetary Sanctions

Defendant requests monetary sanctions against Plaintiff and his counsel in the amount of $5,135 in legal fees plus costs in the amount of $2,160 for a total of $7,295.

Upon review of the notice of motion, sanctions against Plaintiff’s counsel are precluded because Defendant failed to include in its notice the request for sanctions against opposing counsel.  The notice of motion must expressly state that sanctions are sought against opposing party’s counsel.  (See Blumenthal v. Sup.Ct. (Corey) (1980) 103 Cal.App.3d 317, 320.)  The notice given here stated: “Notice is hereby given that on January 27, 2023, at 1:30 P.M., or as soon thereafter as the Court may hear the Motion, in the Department 27 of above-titled Court, located at 312 N. Spring St., Los Angeles, CA 90012, pursuant to California Code of Civil Procedure §§ 2023.010, et seq.; and 2032.410, Defendant, BRET WHETTAM will, and hereby does, move the Court for an Order imposing on Plaintiff CONNOR BIRNHOLZ both monetary and issue sanctions.”  (Notice of Motion, filed 12/20/22.)  

In his moving papers, Defendant claims the following expenses and fees: (1) $500 in drafting and serving the first and second Notice of Independent Medical Examination ($250 x 2) (Cosgrove Decl. ¶ 10); (2) $600 for Plaintiff’s failure to appear at his orthopedic independent medical examination, which required Defendant the examining doctor for his time (Cosgrove Decl. ¶ 9, Exh. 2); (3) $1,500 for Plaintiff’s second failure to appear at his orthopedic independent medical examination (Cosgrove Decl. ¶ 11, Exh. 3); and (5) $3,500 in legal fees for drafting and filing the instant motion as well as for reviewing Plaintiff’s opposition, drafting a reply, and arguing the motion. (Cosgrove Decl. ¶ 12.) Defendant also seeks $60.00 for the filing fee associated with the motion.

With respect to the costs, the Court finds monetary sanctions for the costs Defendant incurred due to Plaintiff’s failure to appear at both IME’s warranted. (See Cosgrove Decl., Exhs. 1-3.)  Therefore, the request of $2,220.00 for costs is reasonable ($600 + $1500 + 60 = $2,160)[1].

With respect to legal fees, the Court finds the amount excessive. The initial request submitted was an estimated amount of $3,500.  Counsel’s supplemental filing seeks of 20.3 hours at a rate of $250 per hour for $5,135.00. (Cosgrove Suppl. Decl. ¶¶ 2-3.)

Plaintiff’s counsel properly points out that Defendant did not prevail on its argument for issue sanctions.  However, dividing the amounts by issue is not only difficult but as presented in counsel’s declaration impossible.  Putting that point aside, the amounts claimed are not reasonable.  For instance, counsel (Cosgrove) claims to have spent 12.6 hours preparing the instant motion, which included reviewing case law and documents. (Cosgrove Suppl. Decl. ¶ 2(a)-(b).)  He also claims to have spent 1.9 hours reviewing and analyzing the opposition and 4.3 hours in drafting the reply. (Cosgrove Suppl. Decl. ¶ 2(c)-(d).)  Upon review of the motion and the reply, this is not an overly complicated discovery matter warranting 18.8 hours (two full days of research and writing at 9 hours per day).  A reduction in monetary sanctions is appropriate under the circumstances.  

The Court reduces Defendant’s request for monetary sanctions as it pertains to attorney fees to $2,000.00, consisting of an hourly rate of $250 for the following activities: 5 hours for preparing the motion, 1.5 hours for preparing the reply, and 1.5 hours spent attending the hearing.  The Court finds counsel’s hourly rate at $250 reasonable.  Adding the initial $500 for drafting and serving the first and second notice, the total amount of legal fees is: $2,500.00.   

Accordingly, the Court grants Defendant’s motion for monetary sanctions against Plaintiff in the reduced amount of $4,660.00 ($2,500 in legal fees and $2,160 in costs.).

IV.         CONCLUSION

Based on the foregoing, the Court DENIES Defendant’s request for issue sanctions and GRANTS Defendant’s request for monetary sanctions against Plaintiff in the reduced amount of $4,660.00. Plaintiff is ordered to tender payment to Defendant’s attorney of record within 30 days of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

        Dated this 21st day of February 2023