Judge Mark A. Young, Case Number: 21STCV38979, Date: 2024-03-01 Tentative Ruling

Judge: Mark A. Young, Case: 21STCV38979, Date: 2024-03-01 Tentative Ruling

Case Number: 21STCV38979 Hearing Date: March 12, 2024 Dept: M

CASE NO.: 21STCV38979

MOTION: Motion for Sanctions

HEARING DATE: 3/12/2024

Legal Standard

Misuse of the discovery process is conduct subject to sanctions. (CCP § 2023.010.) A “misuse of the discovery process” includes, among other things, failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Id.) Possible sanctions include a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (CCP § 2023.030(a).)

Analysis

Plaintiff’s evidentiary objections are OVERRULED.

Plaintiff Daniela Cohen moves for an order requiring Defendant Richard Jordan Frye and his counsel of record—Natalie Keshishian, Chantalle Zakarian, Robyn S. Hosmer, and Law Offices of Robyn S. Hosmer— to pay, jointly and severally, the sum of $7,611.50 in attorney’s fees and costs, for scheduling and then refusing to proceed with the deposition of Paul Frye.

Plaintiff provides that on August 30, 2023, counsel electronically served notice of unavailability which included the date of September 15, 2023. (Moghadam Decl. ¶ 3; Ex. A.) An hour later, the defense gave notice of deposition for “PAUL FRYE”, scheduling it for 9/15/23 (a Friday) at 10 am. (Moghadam Decl. ¶ 4; Ex. B.) On September 14, 2023, Defendant’s court reporter confirmed the deposition of “PAUL FRYE.” (Id., Ex. D.) On September 14, 2023, Plaintiff’s counsel made a remote appearance while “on the road.” (Id., ¶ 8.) Defense counsel arrived 10 minutes late. (Id., ¶ 9.) After waiting another 15 minutes, Plaintiff’s counsel requested to proceed with the deposition, and asked for the whereabout of Mr. Frye. (Id.) Defense counsel cancelled the deposition in response. (Id.) Defense counsel refused to let Plaintiff’s counsel make a record with the court reporter. (Id.) On September 18, 2023, the court reporter indicated that her licensing authority had ruled that Plaintiff’s counsel should have been given an opportunity to go on the record and allowed counsel to make a record. (See Id., Ex. E.)

Defendant argues that counsel refused to proceed with the deposition because the notice had a clerical error. Defendant intended to depose Plaintiff, not Paul Frye. Defendant explains that this would have been the sixth notice for Plaintiff’s deposition. (See Keshishian Decl., Exs. 2-8.) Defendant asserts that the August 30, 2023, notice was properly served, except for the clerical error. Defendant also contends that Plaintiff was aware of this error because the August 30, 2023, email notice stated “Please find the Amended Deposition Notice of Plaintiff continued to September 15, 2023”, that the notice was an “AMENDED NOTICE” of taking deposition as opposed to a new notice, and that counsel was apparently aware of the issue based on his behavior at the deposition. (Id., ¶¶5-7.)

Here, the Court does not find serious discovery abuse by Defendant. The record suggests that Defendant’s notice was a mistake and that Plaintiff’s counsel was likely aware of this mistake. Of course, Plaintiff’s counsel was not under any obligation to inform Defendant of this apparent error. Further, defense counsel improperly refused to make a record of the issue at the deposition, wasting counsel and the court reporter’s time. Ultimately, defense counsel’s negligence in issuing the notice was the cause of this dispute. Defense counsel noticed a deposition, failed to produce their own witness, and then refused to go forward with the deposition at all, even to make a brief record. Thus, some monetary sanctions are justified.

Plaintiff requests $7,611.50 in sanctions for a claimed 15.5 hours of work related to this dispute. However, the claimed amount of time spent on this issue is unreasonable. Reviewing the entirety of the record, and considering the severity of the conduct, the Court concludes that a reasonable sanction in this matter would be $1,064.00, inclusive of costs, for fees incurred due to the mis-noticed deposition. Accordingly, the motion is GRANTED. Sanctions are imposed only against Defendant’s counsel of record, Natalie Keshishian. Sanctions are to be paid to Plaintiff’s counsel of record within 30 days.