Judge Lon F. Hurwitz, Case 20-01140853 2023-05-12 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 20-01140853, Date: 2023-05-12 Tentative Ruling

1. Motion for Approval of Class Settlement

2. Order to Show Cause

Motion for Preliminary Approval

This Motion was originally filed on 3/10/21.

On 8/12/22, at the SIXTH Hearing on this Motion, Judge Sanders Denied this Motion based upon the inability of Plaintiff’s Counsel (Mr. Mahoney) to comply with 5 previous Court Orders to correct the moving papers in this matter. There was no indication in Judge sanders ruling as to whether or not said Denial was with or without prejudice.

On 12/13/22, Mr. Mahoney filed a “Notice of Renewed Motion and Renewed Motion For Preliminary Approval of Class Action Settlement” [ROA 118], in which he filed the same papers which had been filed in connection with the sixth Hearing heard on 8/12/22, and in which Judge Sanders Denied the Motion [ROA 105] based upon those papers being defective with respect to the Court’s prior Orders for correction and compliance with the Court’s rules. As such, this Court determined that such filing may have been a frivolous filing within the meaning of CCP Section 128.5; and 177.5 to the extent that this new filing may have been a continuation of Counsel’s failure to abide by Court Orders regarding the contents and format of the “Renewed” Motion.

On 4/7/23, which was, in essence, the 7th hearing on the motion for preliminary approval, the Court continued the hearing to give Counsel one final opportunity to comply with numerous court orders. The 4/7/23 Minute Order set forth six examples of Counsel’s refusal to comply with the Court’s orders. The Court specifically stated that the six examples were not intended to be exhaustive, but illustrative of prior issues Counsel has failed to address. In granting Counsel one final continuance, the Court directed Counsel to the six previous rulings regarding what needed to be amended, added, changed, augmented and/or explained. (See, ROA 132.) The Court also set an OSC re: Sanctions for Failure of Plaintiff’s Counsel to comply with previous Court Orders and the filing of a frivolous Motion. (Ibid.) pursuant to CCP Sections 128.5 and 177.5.

In response, Counsel filed a supplemental declaration which only addressed the specific non-exhaustive examples listed by the Court in the 4/7/23 Minute Order. (ROA 136).

The OSC re Sanctions is also set for this day. Plaintiff’s Counsel has also submitted a declaration re OSC stating that the repeated failure to comply with Court Orders was unintentional. (ROA 138).

ANALYSIS:

Plaintiffs’ Counsel has failed to bookmark any of the exhibits to his supplemental declaration, which totals 101 pages. [ROA 136]. Pursuant to the section titled, “BOOKMARKS” located under “Other Information About This Department,” on this Department’s Tentative Ruling page, “The court requires strict compliance with CRC, Rule 3.1110 (f) (4) which requires electronic exhibits to include electronic bookmarks with the links to the first page of each exhibit, and with bookmarked titles that identify the exhibit number or letter and briefly describe the exhibit. CRC, Rule 3.1110 (f) (4).”

Additionally, despite the Court’s indication in its 4/7/23 ruling that the 6 examples of Counsel’s failure to comply were not exhaustive, but illustrative only [See Item 7 of the Court’s Minute Order of 4/07/23, ROA 132], Counsel has addressed only said 6 examples in this 8^th attempt to comply.

RULING

This being Counsel’s 8^th unsuccessful attempt at compliance with the Court’s requirements, and the Court’s previous indication that today’s Hearing would constitute the last opportunity to comply with the Court’s prior Orders [See Minute Order of 4/07/23], the Court now rules as follows:

The Motion For Preliminary Approval IS DENIED WITH PREJUDICE.

Order to Show Cause

In response to the Court’s Order To Show Cause re Sanctions pursuant to CCP Sections 177.5 and 128.5, Counsel has filed the Declaration of Kevin Mahoney, dated April 20, 2023, in which Counsel declares:

“6. I respectfully request the Court discharge the Order to Show Cause hearing and not impose any sanctions for a failure to comply with previous Court orders and the filing of a frivolous motion because Plaintiff has continuously sought to address issues raised by the Court regarding this settlement, worked with Defendant’s counsel facilitate settlement terms the Court will approve, and any failure to comply with prior orders was unintentional.

7. As I did not purposefully or intentionally disregard the Court’s Order, I believe no conduct was done to warrant the imposition of sanctions….”

Initially, Counsel appears to believe that a lack of intent in violating Court Orders, or diligently working with opposing counsel to resolve the case, somehow satisfies the Court’s Order To Show Cause why Sanctions should not be imposed. To suppose that a negligent (as opposed to intentional) failure to comply with Court Orders after repeated Court reminders of what needed to be done, and 8 attempts to comply, is somehow “excusable”, strains credulity and is, frankly, an insult to this Court’s intelligence.

Counsel has failed to present facts sufficient to explain his inability to comply with Court Orders after 8 attempts and 7 separate itemizations of what this Court required for this Motion to be considered. This failure is not only inadequate with respect to explaining Counsel’s conduct in this regard, but wholly inadequate with respect to the Court’s repeated expressed concerns regarding the burden placed on the Court’s already overworked research staff as a result of Counsel’s failure to comply.

This Court Finds that Attorney Kevin Mahoney has violated this Court’s Order issued 4/7/23 requiring electronic bookmarks for exhibits pursuant to CRC Section 3.1110(f)(4); and based upon said violation, Attorney Kevin Mahoney is hereby, sanctioned pursuant to CCP Section 177.5, in the sum of $950.00 (Nine Hundred Fifty Dollars) to be paid to the Superior Court of the State of California for the County of Orange no later than June 15, 2023. In assessing this sanction, the Court notes that there have been other numerous violations in this case by Mr. Mahoney regarding Court Orders; but as a first sanction, the Court chooses to impose a sanction which will not require Mr. Mahoney to report same to the State Bar as would be required by Business & Professions Code Section 6068(o)(3).

The Court wholly incorporates in this Finding and Order its Minute Orders of 9/29/20, 2/03/21, 7/16/21 (in which the Court set forth 16 separate problems and violations of the Court’s required procedures), 9/10/21 (in which the Court highlighted 7 areas that were not corrected and/or needed further explanation), 11/19/21 (in which the Court set forth 3 areas still needing augmentation/correction), 12/17/21 (in which the Court highlighted the 3 continuances needed to allow Counsel to address the Court’s concerns; the problem of Counsel filing the latest round of documents 3 days late; the Court’s concern regarding the burden placed upon the Court in having to repeatedly review Counsel’s paperwork and “…give directions to counsel concerning basic matters…”; directing counsel to review its 11/19/21 Minute Order and the authorities cited in order to make additional changes to the Settlement Agreement; and citing the need for removal of the individual release as being unnecessary and confusing), 4/01/22 (in which the Court noted that despite the Court’s identification of problems with both the Settlement Agreement and the Notice on 12/17/21, Counsel only revised the Notice); 8/12/22 (in which the Court again stated, in this 6^th Hearing on the subject Motion, that Counsel’s failure to provide redlining as required, or any summarization of changes, would require the Court to “hunt and peck” to figure out what changes were made or not made-something which the Court did not have the time to do, thereby resulting in Judge sanders denying the Motion), and 4/07/23 in which Counsel’s “Renewed Motion” filed 12/13/22 was heard and at which the Court noted that Counsel has “yet again” failed to comply with the Court’s Orders regarding the filing of a Motion For Preliminary Approval-separate and apart from the absence of any authority allowing a “Renewed Motion” or compliance with CCP Section 1008 re Reconsideration.

Finally, the Court, in making this Finding and Order, notes that 3 separate Research Attorneys and 2 Superior Court Complex Judges have determined over the course of 8 separate Hearings that Counsel is unable to follow the Court’s directives regarding a Motion For Preliminary Approval-thus resulting in the Denial of that Motion with Prejudice (after a prior Denial without Prejudice on 8/12/22 [ROA 105], and this Sanctions Order.

Clerk to give Notice.