Judge Mark A. Young, Case 19STCV19756 2022-09-13 Tentative Ruling

Judge: Mark A. Young, Case: 19STCV19756, Date: 2022-09-13 Tentative Ruling

Case Number: 19STCV19756 Hearing Date: September 13, 2022 Dept: M

TENTATIVE RULING

On August 11, 2022, the Court issued its final ruling denying Plaintiff’s motion for reconsideration and motion for a new trial. As part of that order, the Court set an OSC re sanctions against counsel Nancy Doumanian pursuant to Code of Civil Procedure § 128.5. The basis for the Section 128.5 OSC hearing was that Ms. Doumanian misrepresented to the Court the late discovery of the admission agreement (hereinafter, the “Agreement”) from North Los Angeles Regional Center (“NLARC”) to Plaintiff regarding JC’s placement. As stated in the order, “the Court can only conclude from this showing that Plaintiff’s counsel intends to deceive the Court in an effort to manufacture allegedly new or different facts.” (8/11/22 Minute Order.) The Court further found that:

NLACRC’s opposition to this motion sets out the falsity of Plaintiff’s counsel’s representations regarding when this document was received by counsel. As such, the Court will set an OSC re imposition of monetary sanctions against Plaintiff’s counsel, Nancy Doumanian, pursuant to Code of Civil Procedure section 128.5 for actions or tactics made in bad faith and that are frivolous. The hearing date on the OSC will be September 13, 2022 at 8:30 a.m. Any opposition shall be due by September 2, 2022.

(Id.) Plaintiff filed an opposition to the OSC along with a supporting declaration on September 2, 2022. Defendant filed a response on September 9, 2022. The Court incorporates its August 11, 2022, minute order into this ruling, as it lays out the factual findings leading to this OSC. A brief recap, however, is still in order.

In Ms. Doumanian’s declaration in support of her Motion for Reconsideration, Ms. Doumanian stated under penalty of perjury that when she initially received Defendant’s production: “Declarant looked through and reviewed these 2,900 pages of records and found no contract, no admission agreement, no service agreement and no other written contractual agreement between the North Los Angeles County Regional Center and People’s Care/Hargis Home (where plaintiff worked and where he was attacked by JC in the incident that forms the basis of this lawsuit). Defendant North Los Angeles County Regional Center never produced, either in its written discovery responses or other informally, any contract, admission agreement, service agreement or other written contractual agreement that it entered into with People’s Care/Hargis home for assessment, placement, and services to JC.” (Doumanian Dec., Mtn. Reconsideration, p. 5:22-6:2 (emphasis added).)

Ms. Doumanian further stated that, after the summary judgment hearing: “Declarant also again reviewed all of the defendant Regional Center’s discovery responses and again confirmed that no contract and no written agreement between these two entities had ever been produced in discovery or otherwise identified by the defendant Regional Center. Declarant then reached out to counsel for Peoples Care/Hargis Home in the related civil action (in which a stay had been stipulated to between the parties there pending the outcome of this matter) and obtained a copy of a contract pursuant to the Stipulation and Protective Order in place and was surprised to learn that such a contract existed. It would strongly appear that defendant Regional Center suppressed evidence in discovery by not producing this in discovery in the pending case, although it was specifically requested in discovery in this matter.” (Doumanian Dec., Mtn. Reconsideration, p. 7:11-20.)

In her declaration submitted in response to the Court’s OSC, Ms. Doumanian states that when she initially received Defendant’s production: “I reviewed the 2900 pages of records voluntarily submitted by counsel for the defendant regional center. I found a three-page document starting at pages 25, 26 and 27 titled ‘Admission Agreement Licensed and Vendorized Residential Facility,’ a copy of which is attached hereto. This was the only document that appeared to be a contract that was called for in the plaintiff’s document demands.” (Doumanian Dec., p. 5:22-26 (emphasis added).) Ms. Doumanian then states that, after the MSJ hearing “Declarant received a 10-page document [from People’s Care] with the cover sheet titled ‘Admission Agreement Licensed and Vendorized Residential Facility’ that had attachments . . .. When declarant compared this 10-page contract documents from People’s Care to the 3-page contract documents from the 2900 pages from the regional center, declarant noted that there appeared to be 7 pages missing from the contract documents I received from the defendant regional center . . .. Relying on this reasonable belief that declarant had not received a complete copy of the contract documents given these extra 7 pages, declarant filed a motion for reconsideration and a motion for new trial arguing that declarant had failed to produce all contract documents in discovery.” (Doumanian Dec., pp. 6:18-7:6 (emphasis added).)

As NLARC argues, Ms. Doumanian has confirmed that her July 17, 2022, declaration contains false statements. Ms. Doumanian had the Agreement before she filed her motions, and even compared the Agreement that NLARC produced to the subsequent production and determined they were the same. The additional pages referenced by Ms. Doumanian were irrelevant to the motion for summary judgment and the motions for new trial/reconsideration. The Court further agrees that Ms. Doumanian also continues to misrepresent the nature of her motions for new trial and reconsideration, stating that they were based upon NLARC’s failure to produce all contract documents as opposed to the actual basis – which was any contract documents. (Doumanian Dec., pp. 6:18-7:6.) Ms. Doumanian also misrepresents in her opposition that the Admission Agreement Rate Page allows the regional center to remove the resident from its facility when the resident exhibits dangerous behavior. (Opp. p. 7.) This statement is incorrect. The resident can be removed when the resident is in immediate danger to his/her health and safety. There is no basis for Ms. Doumanian’s argument to the contrary, and once again, there appears to be an intent to mislead the Court.

For these reasons, the Court concludes that Ms. Doumanian’s representations in her declarations submitted in support of her motions for new trial and reconsideration were knowingly false, or made with reckless disregard for the truth, and were intended to mislead the Court. Sanctions are appropriate pursuant to Code of Civil Procedure section 128.5 based upon legal positions that were made in bad faith and were frivolous.

Counsel Doumanian is ordered to pay NLARC counsel’s attorney’s fees for her willful and bad faith violation of section 128.5. Those fees will encompass both oppositions to Plaintiff’s motions for new trial and reconsideration ($4,300), and this OSC hearing.