Judge Mark C. Kim, Case 20LBCV00201 2022-08-25 Tentative Ruling

Judge: Mark C. Kim, Case: 20LBCV00201, Date: 2022-08-25 Tentative Ruling

Case Number: 20LBCV00201 Hearing Date: August 25, 2022 Dept: S27

1. Background

On April 15, 2020 Plaintiffs, Kamran Ghadimi, M.D. (“Dr. Ghadimi”) and Advanced Pain Treatment Medical Center (“APTMC”) (“Plaintiffs”) filed this action. The operative pleading is the Third Amended Complaint, which asserts causes of action for (1) breach of contract and (2) common counts against Defendant Eileen Talbott (“Defendant”).

Defendant moves the Court for monetary sanctions against Plaintiffs and Plaintiffs’ attorney for their failure to justify the cancellations of Defendant’s deposition, which Plaintiffs and Plaintiffs’ attorney had noticed.

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2. Deposition Sanctions

a. Legal Standard

“If the party giving notice of a deposition fails to attend or proceed with it, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party, or the attorney for that party, or both, and in favor of any party attending in person or by attorney, 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., § 2025.430.)

b. Discussion

Defendant represents that Plaintiffs and their attorney noticed Defendant’s deposition on two occasions, and, on each of those two occasions, they canceled Defendant’s deposition without substantial justification.

The first deposition was noticed to take place on March 10, 2022. (Alberts Decl., ¶ 2.) On March 8, 2022, Plaintiffs’ counsel notified Defendant’s counsel that they could no longer take Defendant’s deposition and requested further available dates. (Id. at ¶ 3.) Following that cancelation, Plaintiffs amended the notice of deposition to take Defendant’s deposition on April 5, 2022 at 10:00 a.m. (Id.) On April 4, Plaintiffs responded to Defendant’s paralegal and confirmed that Defendant’s deposition was going forward. (Mot. Ex. 4.) On April 5, 2022 at 9:29 a.m. (31 minutes before the deposition was set to begin) Plaintiff’s counsel canceled the deposition “Due to an unforeseen emergency.” (Alberts Decl., ¶ 4.) Thereafter, Defendant requested from Plaintiffs her daily wage because she was forced to take off work to attend a canceled deposition. Defendant seeks to recover for the work to prepare the instant Motion, the fees incurred to prepare Defendant for the first and second noticed depositions, and Defendant’s daily wage and her travel expenses. (Mot. p. 6 ; Talbott Decl., ¶¶ 7-8)

Plaintiffs represent that there is substantial justification not to impose sanctions. Plaintiffs represent that Courtney Ung was the original attorney handling this matter up until March of 2022. Then Christoffer Gaddini (“Mr. Gaddini”) took over this matter. (Gaddini Decl., ¶ 2.) Mr. Gaddini represents that he was trying to get up to speed on Ms. Ung’s large case load, and that he was not informed of Dr. Ghadimi’s requirement to attend every proceeding for this case. (Id. at ¶ 3.) Mr. Gaddini became aware of this policy on the date of Defendant’s deposition. (Id.) Despite Mr. Gaddini’s best efforts to coordinate with Dr. Ghadimi, he was unable to arrange for Dr. Ghadimi’s attendance, and was forced to cancel Defendant’s deposition.

The Court finds that Defendant has presented sufficient evidence to show that sanctions against Plaintiff’s attorney are proper. Here, Plaintiff’s counsel (through his assistant) emailed Defendant’s counsel stating that he had to cancel the deposition due to an “unforeseen emergency.” While in that email Plaintiff’s counsel represented that the deposition was cancelled due to an unforeseen emergency, the evidence provided reveals that it was actually due to Plaintiff’s counsel’s ignorance of his client’s requirements. Plaintiff sent an email stating that there was an unforeseen emergency, but there is no evidence that an unforeseen emergency existed.

Defendant’s counsel declaration fails to state the time spent working on the Motion and preparing Defendant for deposition. The court finds that on their face the fees sought by Defendant appear to be proper, but the Court cannot award the fees sought without Defendant’s counsel’s attesting to his rate, the time spent preparing Defendant, and the time spent working on this Motion. Accordingly, the Court CONTINUES the instant Motion to allow Defendant’s counsel to submit an amended declaration. No further briefing will be allowed.

Thus, Defendant’s Motion is CONTINUED. Defendant’s counsel is ordered to provide an amended declaration.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.