Judge: Lee S. Arian, Case: 21STCV43511, Date: 2024-02-06 Tentative Ruling

Case Number: 21STCV43511    Hearing Date: April 8, 2024    Dept: 27

Hon. Lee S. Arian

Department 27

Tentative Ruling

Hearing Date:                4/8/2024 at 1:30 p.m.

Case No./Name:          21STCV43511 LEONARDA GUADALUPE DUENEZ AGUILAR vs CITY OF SIGNAL HILL

Motion:                              MOTION FOR SANCTIONS

Moving Party:                 Plaintiff

Responding Party:      Defendant City of Signal Hill

Notice:                                Sufficient

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Ruling:                               MOTION FOR SANCTIONS IS DENIED

Background

On November 29, 2021, Plaintiff filed the present slip and fall case. In February 2022, Thomas Bekele became the new Person Most Knowledgeable (PMK) for Defendant City of Signal Hill. On August 1, 2023, Plaintiff deposed Bekele as the PMK. In October 2023, Defendant allegedly discovered numerous documents in the previous PMK’s desk, of which they were previously unaware. On October 3, 2023, Defendant filed a motion for leave to conduct a second PMK deposition. The motion was denied. On January 2, 2024, Plaintiff moved the Court to impose monetary sanctions against Defendant's counsel, John Barber, for filing the motion for leave to conduct a second PMK deposition, arguing that the motion was frivolous and not made in good faith. Barber opposes the motion arguing that Defendant did not locate the documents in the previous PMK’s old desk until after the PMK deposition was taken and sought to conduct a second PMK deposition to inquire about the newly found documents.

Legal Standard

CCP section 128.7(b) provides that by signing and filing a pleading, an attorney “is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) [i]t is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[;] (2) [t]he claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law[;] (3) [t]he allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery[;] (4) [t]he denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” (Code Civ. Proc., § 128.7(b).) CCP section 128.7 authorizes the court to impose appropriate sanctions upon attorneys or parties that have violated subsection (b). (Id., § 128.7(c).)

A claim can be factually frivolous or legally frivolous. (See Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) “A claim is factually frivolous if it is ‘not well grounded in fact’ and it is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’” (Id.) “In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable.” (Id.) “A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’” (Id.) Furthermore, “the fact that a plaintiff fails to provide a sufficient showing prevail in a motion is not, in itself, enough to warrant the imposition of sanctions.” (Peake, supra, 227 Cal.App.4th at 448.)

Analysis

Defendant's motion for leave to take a subsequent deposition was not legally frivolous as the Court may grant leave for a subsequent deposition upon showing good cause. (Code Civ. Proc. § 2025.610(b)). Section 2025.610 does not prohibit taking a subsequent deposition of an individual who was previously deposed in their capacity as a designee under section 2025.230 to testify on behalf of an organization. There is a legal basis for Defendant to request the subsequent deposition. Whether or not Defendant has presented enough evidence for a showing of good cause is a separate matter.

Defendant's counsel, John Barber, demonstrated through his email and declaration that he acted in good faith. First, he instructed the City to conduct searches for documents responsive to Plaintiff's discovery requests on multiple occasions. These searches occurred during a period of transition for the City's person most qualified (PMK). In December 2021, Deborah Mestaz, the former PMK, retired due to failing health and subsequently passed away in November 2022. in February 2022, Thomas Bekele became the new PMK, but he was unaware of the full extent of Mestaz’s files. Email between Barber and the Bekele showed that Barber was only made aware of the documents at issue after Bekele discovered them in Mestaz's old desk and file cabinets after the deposition. Evidence presented by Barber showed that he was diligent in requesting the City to search for responsive documents and he lacked prior knowledge of the documents at issue until their discovery after the deposition.

The burden of proof rests with Plaintiff, as the moving party, to demonstrate that Defendant's counsel acted in bad faith. To meet this burden under the circumstances of the present case, Plaintiff must show that Counsel Barber was aware of the documents' existence and deliberately withheld them prior to the deposition. However, Plaintiff has failed to present sufficient evidence to substantiate this claim. Furthermore, Barber produced email correspondences showing that it is unlikely that he intentionally withheld documents. Thus, the present motion is DENIED.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave