Judge: Michelle C. Kim, Case: BC597357, Date: 2023-10-17 Tentative Ruling

Case Number: BC597357    Hearing Date: October 17, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.          Background

Plaintiff, a minor, by and through his guardian ad litem, Blakeley Robles (“Plaintiff”), filed this action against Defendant, Mohammadreza Yazdi, D.D.S (“Defendant”).

This action is post-arbitration. An order for appearance and examination has been pending for well over one year. Plaintiff now moves for an order to award attorney’s fees as monetary sanctions. Defendant opposes the motion, and Plaintiff filed a reply.

II.         Legal Standard

CCP § 491.160 provides:

(a)    If an order requiring a person to appear for an examination was served by a sheriff, marshal, a person specially appointed by the court in the order, or a registered process server, and the person fails to appear:

(1)    The court may do either of the following:

(A)   Pursuant to a warrant, have the person brought before the court to answer for the failure to appear and may punish the person for contempt.

(B)   Issue a warrant for the arrest of the person who failed to appear as required by the court order, pursuant to Section 1993.

(2)    If the person’s failure to appear is without good cause, the plaintiff shall be awarded reasonable attorney’s fees incurred in the examination proceeding.

(b)    A person who willfully makes an improper service of an order for an examination which subsequently results in the arrest pursuant to subdivision (a) of the person who fails to appear is guilty of a misdemeanor.

An application for an order for appearance and examination was served on the judgment debtor on May 25, 2022 for appearance on June 8, 2022. On June 8, 2022 the judgment debtor failed to appear and a bench warrant was issued and held to June 14, 2022. On June 14, 2022, the judgment debtor appeared for a debtors exam. The exam was continued and the bench warrant was held to August 2, 2022. On August 2, 2022, the hearing was once again continued to August 31, 2022. On August 31, 2022, the hearing was once again continued due to defense counsel illness. On October 13, 2022, the judgment debtor appeared and the hearing was once again continued for the judgment debtor to bring in the subpoenaed documents. On December 1, 2022, the judgment debtor failed to appear and a bench warrant was held until January 18, 2022. On January 18, 2023, the judgment debtor appeared again, again without the required documents. The parties stipulated that both the bench warrant and SDT remained in full force and effect. The matter was continued to April 18, 2023 and the judgment debtor was order to appear without further notice, order or subpoena. On April 18, 2023 the judgment debtor failed to appear and the Court ordered the judgment debtor to produce the documents in their entirety by April 24, 2023. On April 24, 2023, the judgment debtor failed to appear and the Court once again ordered the judgment debtor to appear on April 28, 2023 with the subpoenaed documents. On April 28, 2023, the judgment debtor appeared. The Court issued an Order to Provide Tax Returns of Mohammadreza Yazdi. There was no compliance date noted on the order. The parties stipulated to appear once more on August 1, 2023. On August 1, 2023, the court set an OSC Re: contempt for failure to comply with the April 28, 2023 order. The Court issued a bench warrant for the judgment debtor on September 1, 2023 in the amount of $25,000. On September 21, 2023, the Court set a trial setting conference for the OSC RE: Contempt.

            Although the judgment debtor has appeared 3 times for examination, each time the examination was frustrated by the judgment debtor’s lack of full compliance with the Order for Appearance and Examination. The Court continued the hearing multiple times in order to allow for completion of the examination. Because the examination remains incomplete, and because the Court has given the judgment debtor many opportunities to complete the examination, the Court finds that the judgment debtor’s failure to appear is without good cause. Defense counsel offers no explanation for the failure to appear, only stating that the issue “should be the subject of testimony at the future live-witness hearing.” However, defense counsel provides no citation or authority to suggest that a finding of lack of good cause under this particular statute requires live witness testimony. There is no evidence of good cause before the Court, and based on the record before the Court, there is ample evidence based on the sheer number of missed court dates to support a finding of lack of good cause shown. Therefore, the Court will award attorney fees.

The examination proceedings at which the judgment debtor failed to appear are: June 8, 2022, December 1, 2022, April 18, 2023, April 24, 2023, and August 1, 2023. The Court will award 1 hour for each examination proceeding at Plaintiff’s counsel’s reasonable rate. The Court has considered the multiplier factors and will not apply a multiplier, although the Court recognizes plaintiff’s counsel’s efforts in this case. Therefore, the Court awards a total of $2,750 (5 hours X $550/hour). The judgment debtor is ordered to pay this amount to Plaintiff’s counsel by and through the judgment debtor’s attorney of record within twenty (20) days.

            The Court finds that none of the other statutes relied on by Plaintiff support an award of sanctions, as they are not applicable to the current factual scenario.

            Moving party to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@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. 

Dated this 16^th day of October 2023