Judge Kerry Bensinger, Case Number: 21STCV22340, Date: 2023-12-13 Tentative Ruling

This is a wrongful termination action. On August 7, 2023, Plaintiff, John Cadusale, filed these motions to compel Defendants, Alameda Restaurant LLC, Noypitz Bar & Grill LLC, Lauro Calonzo, and Wokcano Cerritos, LLC, to provide responses to Plaintiff’s Request for Production of Documents, Set One. Plaintiff seeks sanctions against Defendants.

If a party to whom inspection demands were directed fails to serve a timely response, the propounding party may move for an order to compel responses without objections.¿ (Code Civ. Proc., § 2031.300, subd. (b).)¿ Failure to timely serve responses waives objections to the requests.¿ (Code Civ. Proc., § 2031.300, subd. (a).)¿¿¿¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to inspection demands, the court “shall impose a monetary sanction . . . unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).) In the context of a motion to deem requests for admission admitted, it is mandatory that the court impose monetary sanctions on the party or attorney, or both, whose failure to serve a timely response to the request necessitated the motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).)

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)

As a threshold matter, Plaintiff argues Defendants have not served verified responses or produced any documents responsive to the production demands. However, Defendants attach to the Oppositions verified responses to Plaintiff’s discovery. The proofs of service show that the responses were served on May 28, 2023. In his Reply, Plaintiff attaches meet and confer letters which confirms that Plaintiff received responses. In the meet and confer letters, Plaintiff takes issue with Defendants’ responses, describing them in part as unverified. However, based on the evidence before the Court, Defendants served verified responses on May 28, 2023. To the extent Plaintiff takes issue with the responses, his recourse is to file a motion to compel a further response. (See Code Civ. Proc., § 2031.310, subd. (b).)

The motions to compel responses to Requests for Production of Documents, Set One, is Denied.

Kerry Bensinger

Judge of the Superior Court

On June 15, 2021, Plaintiff John Cadusale (“Cadusale”) filed the instant action against Defendants, Alameda Restaurant LLC, Noypitz Bar & Grill LLC, Lauro Calonzo (“Calonzo”), and Wokcano Cerritos, LLC. Plaintiff worked as a waiter and server for Defendants prior to bringing this action for wrongful termination.

On June 26, 2023, Calonzo filed a Cross-Complaint against Cadusale and his counsel, Ronald Yoosefian (“Yoosefian”), alleging causes of action of (1) Civil Extortion, (2) Fraud, (3) Breach of Settlement Agreement, (4) Malicious Prosecution, (5) Abuse of Process, (6) Intentional Infliction of Emotional Distress, (7) Negligence, (8) Cal. Rules of Professional Conduct [3-200] Violation, (9) Business and Prof. Code Violation, and (10) RICO/Hobbs Act Violation. The Eighth and Ninth Causes of Action are asserted against Yoosefian only. All other causes of action are asserted against Cadusale. Calonzo is represented by counsel. However, Calonzo filed the Cross-Complaint in pro per.

Cadusale and Yoosefian each filed an anti-SLAPP motion to strike the Cross-Complaint. Cadusale’s motion targeted all causes of action asserted against him. On October 31, 2023, the Court issued a ruling granting Cadusale’s anti-SLAPP motion. As such, the Cross-Complaint was dismissed with prejudice as to Cadusale. Cadusale sought recovery of attorney’s fees. However, because Cadusale’s counsel[2] did not seek a specific amount nor list his hourly rate and the time expended on the motion, the Court directed Cadusale to move for attorney’s fees in a later filed motion.

On November 15, 2023, judgment was entered in favor of Cadusale as to Calonzo’s Cross-Complaint. On the same day, Cadusale filed this motion for attorney’s fees.

A prevailing defendant on an anti-SLAPP motion is entitled to recover their attorney’s fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1).) Cadusale, as the prevailing cross-defendant, requests attorney’s fees of $9,000.00 for 15 hours of legal services at $600 per hour plus $94.29 in court costs. (Motion for Attorney’s Fees, p. 3:1-10; Mosesi Decl., ¶¶¿16-18.) Whether the fees requested are reasonable is analyzed using the lodestar approach, which calculates the number of hours reasonably spent on the case multiplied by a reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

Attorney Henrik Mosesi (“Mr. Mosesi”) requests a $600 hourly rate, a figure he bases “on my twenty six years of legal experience practicing civil litigation in California.” (Mosesi Decl., ¶ 18.) Based on the Court’s own knowledge of and familiarity with rates in the relevant community, it finds that a $600 rate is reasonable for an attorney of Mr. Mosesi’s experience working on the present matter.

Calonzo’s counsel argues the fee should be reduced for lack of adequate justification.

The Court has also reviewed the 15 hours requested. (Mosesi Decl., ¶ 16 [15 hours for “conducting legal research on CCP 425.16 and litigation privilege; preparing the verified answer; drafting the special motion to strike along with the supporting documents: drafting a short reply to the opposition which I was never served outlining the late nature and improper nature of the opposition, appearing remotely for the hearing on my client’s motion.”].) The Court finds that the hours requested are not reasonable. The issues were not novel or complicated. Given these circumstances, the Court will reduce the hours requested to 12.

Calonzo’s counsel next argues that the fee should be reduced in equity because Calonzo filed the Cross-Complaint in pro per. If Cadusale had met and conferred with Calonzo prior to filing the anti-SLAPP motion and explained the defects with the Cross-Complaint, Calonzo would have withdrawn the pleading. However, Calonzo’s counsel concedes there is no requirement to meet and confer prior to the filing of an anti-SLAPP motion.

Calonzo has also filed an opposition to this motion in pro per. He argues, in part, that this motion is premature because two of his causes of action—the Eighth and Ninth Causes of Action asserted against Mr. Yoosepian—survive. This argument lacks merit. All causes of action against Cadusale were struck. That was the purpose of Cadusale’s anti-SLAPP motion. That Calonzo’s causes of action against Mr. Yoosepian may survive is not a proper basis to reduce or otherwise deny the fees incurred for the preparation of Cadusale’s anti-SLAPP motion.

Accordingly, the Court awards Cadusale the sum of $7,294.29 in attorney’s fees, i.e., 12 hours reasonably spent on the case times $600 per hour plus $94.29 in costs.

Plaintiff/Cross-Defendant John Cadusale’s Motion for Order Awarding Attorney’s Fees and Costs Under C.C.P. § 425.16(c)(1) is GRANTED in the amount of $7,294.29.

Kerry Bensinger

Judge of the Superior Court

[1] Because the Oppositions are nearly identical, the Court considers them together.

[2] Casudale engaged other counsel, Henrik Mosesian Mosesi, to prepare and argue the anti-SLAPP motion.

[3] Because the Oppositions are nearly identical, the Court considers them together.