Judge: Mitchell L. Beckloff, Case: 19STCP05134, Date: 2024-02-28 Tentative Ruling

Case Number: 19STCP05134    Hearing Date: February 28, 2024    Dept: 86

FANGARY v. CITY OF HERMOSA BEACH

Case No. 19STCP05134

Hearing Date: February 28, 2024

                             ORDER DENYING PETITION FOR WRIT OF MANDATE

                             ORDER SETTING AMOUNT OF DISCOVERY SANCTIONS

PETITION FOR WRIT OF MANDATE

Petitioner, Dina Fangary, seeks an order from this court finding Respondents, the City of Hermosa Beach, Mary Campbell and Stacey Armato (collectively, Respondents), violated Government Code section 54963 (Section 54963). Petitioner also seeks permanent injunctive relief against Respondents “directing them to refrain from further violations of . . . Government Code section 54963.” (Third Amended Petition [TAP] ¶ 124.)[1] Respondents oppose the TAP.

Petitioner’s request for judicial notice (RJN) of Exhibits A through I is granted.

Petitioner filed a reply brief consisting of 22 pages thereby violating California Rules of Court, Rule 3.1113, subdivision (d).[2] Petitioner did not seek permission to file an oversized reply brief. Accordingly, the court has considered only the following pages of Petitioner’s reply brief: 1:1 through 3:13, 5:4 through 12:17. (The break from 3:13 through 5:4 represents material irrelevant to any reply arguments.)

The TAP is denied.

The Underlying Dispute and Factual Background

Respondent Campbell and Respondent Armato are councilmembers with the City of Hermosa Beach City Council. (First Amended Petition [FAP], ¶¶ 24, 25.)

After conflicted and extensive law and motion practice, a single cause of action remains to be resolved at trial. The fourth cause of action alleges Respondents violated Section 54963. Specifically, the fourth cause of action alleges:

Plaintiff hereby alleges that Mayor Campbell and Councilmember Armato willfully and recklessly violated California Government Code section 54963, which prohibits disclosure of confidential information that has been acquired by being present in a closed session. California Government Code section 54963 specifically prohibits disclosure of such confidential information, and defines confidential information as “a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session under this chapter.” Mayor Campbell and Councilmember Armato violated this requirement during the December 4, 2019 Special City Council Meeting by disclosing information regarding performance evaluation of the City Manager, a matter that only took place in closed sessions and not during publicly noticed meetings. Therefore, to the extend Councilmember Armato and Councilmember Campbell disclosed during City Council public meetings any information they acquired regarding the City Manager’s performance evaluation that occurred in closed session, such disclosures constituted a violation of California Government Code section 54963. (FAP, ¶ 134.)

The City Council held closed session meetings on April 9, April 23 and October 10, 2019. (RJN, Ex. A, pp. 7, 18, 30.)[3] The meeting agenda for each meeting reflects a public employee performance evaluation for a public employee, the City Manager,[4] pursuant to Government Code section 54957 will be discussed. (Ibid.)

The City Council conducted a meeting on December 4, 2019. (RJN, Ex. C [p. 526], Ex. E [p. 581 - partial uncertified transcript].) Petitioner argues Respondents violated Section 54963 during the December 4, 2019 meeting “by disclosing information regarding performance evaluation of the city manager, a matter that only took place in closed sessions and not during publicly noticed meetings.” (Opening Brief 1:10-12.) “[F]ormer councilmembers Campbell and Armato, . . . willfully and recklessly violated [Section 54963], by disclosing in a public meeting Confidential Information they acquired by being present in these closed session meetings.” (Opening Brief 2:2-5.) Further, according to Petitioner, Respondent City “took no action to remedy the situation or ensure that it does not happen again.” (Opening Brief 2:7-8.)

Petitioner asserts:

There are numerous statements made during the December 4, 2019 [City Council] meeting regarding the city manager performance and/or interactions with a councilmember, all of which are Confidential Information. See RJN Exhibit E, E-067:2-098-17. All such statements cannot be listed in this brief due to page limitations.[5] (Opening Brief 8:7-10.)

Petitioner reports the confidential information disclosed during the December 4, 2019 meeting “referred to employment issue for Suja Lowenthal.” (Opening Brief 3:4.) Petitioner alleges the following statements made by Respondent Campbell and Respondent Armato at the December 4, 2019 meeting violated Section 54963.[6]

Statements by Councilmember Armato:

“ ‘. . . the council unanimously agreed to hire a facilitator.’ See RJN Exhibit E, E079:16-17; and

‘We were relieved to hear that . .’ Id. at E-080:2-3.”

Statements by Councilmember Campbell:

“ ‘And the fact that I made my motion primarily based on the fact that there was a broken-down, complete breakdown between councilmember Fangary and our City Manager.[’] Id. at E-089:16-19;

‘And that the Council decided there was a severe enough disfunction, behind the scenes, that was impacting us . . . .’ Id. at E-091:20-23;

‘And if we have a serious issue that is getting in the way, on a very routine basis . . . .’ Id. at E-093:2-4; and

‘So what I meant in my quote in the press release, is yeah, essentially, Council Member Fangary has not been working or communicating with the City Manager.’ Id. at E95:10-13.”

Applicable Law

Section 54963, subdivision (a) provides:

A person may not disclose confidential information that has been acquired by being present in a closed session authorized by Section 54956.7, 54956.8, 54956.86, 54956.87, 54956.9, 54957, 54957.6, 54957.8, or 54957.10 to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.

Section 54963 defines “confidential information” as “a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in a closed session under this chapter.” (§ 54963, subd. (b).)

Section 54963 also specifies “[d]isclosing information acquired by being present in a closed session under this chapter that is not confidential information” does not violate the statute. (Id. at subd. (e)(3).)

Analysis

“[A] party has the burden of proof as to each fact the existence or nonexistence of which is essential for the claim for relief . . . .” (Evid. Code, § 500.)

To demonstrate her claim Respondents violated Section 54963, subdivision (a), Petitioner argues the City Council, a legislative body, may “hear, discuss, deliberate, or take action” on matters at meetings open to the public or closed sessions when permitted by law. (Gov. Code, §§ 54952.2, subd. (a), 54953, subd. (a), 54954.2, subd. (a), 54954.5.) A legislative body may use a closed session “to consider the appointment, employment, evaluation or performance, discipline, or dismissal of a public employee . . . .” (Id. at § 54957, subd. (b)(1).)

The personnel exception to the open meeting laws should be narrowly construed. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1438.) Finally, the general purpose of the open meetings law is “to increase public awareness of issues bearing on the democratic process.”[7] (Ibid.)

Petitioner asserts “it [therefore] does not require a Brown Act genius to conclude” any action by the City Council—including discussions and deliberation—must have occurred at an open meeting or a closed session. (Opening Brief 2:20.) Petitioner advises the City Council’s agendas would provide the public with an understanding of the topics about which the City Council intended to take some action. (Opening Brief 2:24-3:2.)

Petitioner contends the confidential information disclosed to the public arose during the City Council’s closed sessions conducted on April 9, April 23 and October 10, 2019. She notes the closed session agenda items reflect the city manager’s job performance would be discussed. (RJN, Ex. A, pp. 7, 18, 30 [public employee performance evaluation].) As none of the City Council’s public meeting agendas reflect any discussion of the city manager, Suja Lowenthal, Petitioner deduces any City Council action concerning the city manager must have occurred in closed session. (Opening Brief 3:11-13 [“. . . a thorough review of the minutes of every CC public meeting during the relevant time period does not identify any CC meeting where the CC took a vote regarding city manager evaluation or performance issues, or discussed items regarding same”].)

Petitioner reports the personnel exception to open meetings requirements is “to protect employees from public embarrassment” and “permit free and candid discussions of personnel matters by a local government body.” (Opening Brief 10:6-8 [quoting Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87, 96.) Petitioner argues:

Rather than respecting the purpose of the personnel exception ‘to protect employees from public embarrassment’ and ‘permit free and candid discussions of personnel matters by a local government body’, consistent with the goal of the legislature when creating the personnel exception, on December 4, 2019, Respondents elected instead to engage in significant discussions regarding the city manager’s performance without concerns of protecting employees from public embarrassment. Such information was intended to be Confidential Information, consistent with the legislature’s intent in creating the personnel exception. As such, all said Confidential Information is prohibited from disclosure to the public. (Opening Brief 10:11-18.)

Instead of discussing the identified offending statements and whether Respondents violated Section 54963 by disclosing confidential information, Petitioner—as the court understands it—takes the position any information released from a legislative body’s closed session violates Section 54963.[8] (See, e.g., Opening Brief 6:25-27.) She reaches her legal conclusion based on the concept of the confidentiality and privacy of closed sessions generally. (Opening Brief 11:5-11 [press cannot attend closed session], 11:12-21 [alternate member of legislative body cannot attend closed session], 11:22-12:2 [mayor cannot attend closed session], 12:3-13 [staff cannot attend closed session], 12:14-13:9 [closed session minutes confidential].)

Petitioner’s position stops short. Her theory here ignores a significant exception to the law of closed meetings; Petitioner does not acknowledge that “[d]isclosing information acquired by being present in a closed session under [the opening meeting laws] that is not confidential” is expressly not a violation of Section 54963. (§ 54963, subd. (e)(3).) Petitioner does not demonstrate that any and/or all of the allegedly offending statements made by Respondent Campbell and/or Respondent Armato during the public session were protected under Section 54963 as confidential information. That is, she fails to meet her burden of proof on the TAP.

As noted earlier, confidential information for purposes of Section 54963 “means a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session . . . .” (§ 54963, subd. (b).) The closed session agendas from April 9, April 23 and October 10, 2019 reveal the “evaluation of performance” of “a public employee” served as the “basis” for the closed session meeting. (Gov. Code, § 54957, subd. (b)(1); § 54963, subd. (b).) Thus, to the extent the communications in those closed session meetings “related to” the evaluation of performance of a public employee (the city manager) they constitute confidential information under Section 54963.

Petitioner argues on December 4, 2019, Respondent Campbell and Respondent Armato revealed communications—confidential information—made in closed session on April 9, April 23, and/or October 10, 2019 when the City Council evaluated the performance of Suja Lowenthal, the City Manager. Context is important and critical here. Based on the transcript of the City Council meeting of December 4, 2019 and consideration of the entire discussion during that public meeting, the court finds Petitioner’s position unpersuasive. The statements do not relate to an evaluation of the city manager’s job performance—they concern the inability and unwillingness of Councilmember Fangary[9] to communicate with the city manager (except by email and text message) and the difficulty of doing the City’s business where a councilmember—someone who then desired to take office as mayor pro tem—is unwilling to speak directly with the city manager.[10] The statements do not reflect any suggestion by the City Council the city manager is at fault for Councilmember Fangary’s unwillingness to communicate with her except by email or text message.

The controversy here began when the City Council departed from its usual tradition of rotating the position of mayor pro tem between councilmembers and passed over Councilmember Fangary for the position. The City Council made that decision during a public meeting on November 21, 2019.

At the next public City Council meeting, on December 4, 2019, the City Council discussed an open meetings law demand to cure and correct pertaining to the November 21, 2019 City Council’s appointment of a mayor pro tem other than Councilmember Fangary. (RJN, Ex. E pp. 582, 585.) The demand letter alleged the City Council violated the opening meetings law “by by-passing the normal rotation procedure [for the appointment of a mayor pro tem] without advance notice or discussion.” (RJN, Ex. E p. 585.) According to the City, however, the agenda for the November 21, 2019 meeting “made it very clear that there would be consideration of the appointment of the Mayor and Mayor Pro Tem and that description was sufficient under the Brown Act.”[11] (RJN, Ex. E p. 586.)

In response to the demand to cure and correct letter, members of the City Council discussed the “unusual Council decision” (RJN, Ex. E p. 595) to appoint a mayor pro tem “outside of what’s customary in [the City Council’s] rotation order, typically.” (RJN, Ex. E p. 595.) The City Council “openly” discussed “the reasons [] and conditions and situation, that led up to that unusual Council decision.” (RJN, Ex. E p. 595.) The City Council’s discussion focused on certain councilmembers’ belief the City would be better served if Councilmember Fangary did not serve as mayor pro tem.

Respondent Campbell explained:

While Hermosa Beach, elected bodies and other cities have a practice of rotating [in] customary fashion, it’s not always the case. Aberrations do happen, as our City Attorney just clarified for us. And is actually been my understanding, that none of us up here is entitled to serve as Mayor or Mayor Pro Tem. As they—these are appointed positions and include a significant level of added leadership responsibility which has real impacts on this council body, as well as the overall governance process. . . . The Council’s decision to go in a different order for this rotation cycle, I believe, is in the best interest of the City as this time. (RJN, Ex. E pp. 595-596.)

At the December 4, 2019 meeting, members of the City Council, including Councilmember Fangary, as well as members of the public discussed the City Council’s November 21, 2019 decision to elect someone other than Councilmember Fangary as mayor pro tem in detail. During those discussions, a member of the public reported Councilmember Fangary “stopped talking to the city manager over an incident and that [Councilmember Fangary was] thinking about resigning from the City Council.” (RJN, Ex. E pp. 627-628.) The member of the public revealed he had “started hearing from other people [and] realized, this is general information out there in the world . . . .” (RJN, Ex. E p. 628.) In fact, the city manager told the commenting member of the public “she was willing to do most anything to resolve the problem and move forward.” (RJN, Ex. E p. 628.) The member of the public said he “came away thinking that [Councilmember Fangary] was the problem and [the city manager] was not the problem.” (RJN, Ex. E p. 628.)

Councilmember Fangary addressed the City Council on the issues raised during public comment. (RJN, Ex. E p. 639.) Councilmember Fangary discussed (what had been referred to as) the “dysfunctional dynamics of the situation” “relating to the dialogue with [the] city manager . . . [and his] perception that [he was] not welcome in city hall.” (RJN, Ex. E p. 639.) Accordingly, Councilmember Fangary elected to communicate with the city manager (and the City’s staff) “primarily by e-mail and text.” (RJN, Ex. E pp. 639-640.) Councilmember Fangary also explained he had been “communicating all the time” with the city manager and believed he was “doing [his] job.” (RJN, Ex. E pp. 640, 644.)

Councilmember Fangary raised the issue of the allegedly privileged nature of the City Council’s communications during closed session. (RJN, Ex. E p. 644.) He noted “basically, [] anything that’s done in closed session” is “privileged communications.” (RJN, Ex. E p. 644.) He stated: “We didn’t have a meeting to waive anything that happened in closed session. But the mayor decided in the press release to include privileged information from the closed session, but I can’t speak about it because it has not been waived.” (RJN, Ex. E p. 645.) Councilmember Fangary continued: “So just puts me in a little bit of a bind, that I have a pile of information—a press release that I disagree with, but in order for me to defend myself and – disagreement, I would have to express closed session information, which I am refusing to do until the counsel actually does, takes a vote for it.” (RJN, Ex. E p. 645.)

In response to Councilmember Fangary’s statements at the City Council meeting, Councilmember Massey provided his assessment and perception of the conflict between Councilmember Fangary, the city manager and other councilmembers. (RJN, Ex. E pp. 647-657.) Councilmember Massey indicated he could not support Councilmember Fangary’s appointment as mayor pro tem. (RJN, Ex. E p. 649.) He explained:

For the reasons stated in the City’s press release, and as been reported in recent news reports, of specific concern to me, Councilmember Fangary has been gratuitous combative, demeaning, and counter-productive in communications with the City Manager and her staff. ¶ That is conduct that need not be tolerated here, or in any other work place. To further characterize it, these are persistent communications at times, where, the effort is to win an argument, find fault, and express incredulity, rather than offer to support and find solutions.¶ As former Mayor Schmeltzer pointed out, it was common knowledge that Councilmember Fangary unilaterally ceased communications with the City Manager. All direct communications, outside of City Council meetings, and a handful of group communications. . . . ¶ That decision occurred when communications by Councilmember Fangary were challenged, in a particularly contentious exchange between him and the City Manager, over an issue Councilmember Fangary had raised about a perceived promise, that he would be able to park behind the Bart Street gates at City Hall, outside of City Hall meeting times. That’s what precipitated this. ¶ Rather than accept the explanation that adequate parking for public safety personnel and full-time city staff was paramount, Councilmember Fangary interpreted Councilmember’s not being able to park behind the gates of City Council meetings nights, as a lack of trust in him, and leaving Councilmembers to fend for themselves. None of the rest of us share those concerns.  And we all express concern about the way the exchange had been handled, and the decision to cease communications with the City Manager. ¶ In the wake of that, the Council offered and did establish a mediated dialogue between Councilmember Fangary and the City Manager to repair the relationship. Because we wanted him to succeed. . . . [T]he City Manager was willing to participate in that process. Councilmember Fangary did not participate in that process . . . . (RJN, Ex. E pp. 649-650.)

After considering context of the City Council’s discussion on December 4, 2019, the court finds each statement identified by Petitioner that was made during the meeting was not confidential and did not violate Section 54963. While the identified statements relate in a broad sense to the city manager and her ability to “direct an entire workforce to get everything done that needs to be done in the City” (RJN, Ex. E p. 671), the statements do not relate to her specific job performance akin to an employee evaluation—they address Councilmember Fangary and the City Council’s reasons he should not serve as mayor pro tem. That the statements included the city manager in a collateral way does not make them confidential statements related to a public employee’s job evaluation. The identified statements are not of the type that would subject the city manager to “public embarrassment.” (Fischer v. Los Angeles Unified School District, supra, 70 Cal.App.4th at 96.) This is especially true given that Councilmember Fangary’s unwillingness to communicate with the manager other than in writing was well known and, according to comment by at least one member of the public, openly discussed by the city manager.

Petitioner’s contention “Respondents elected . . . to engage in significant discussions regarding the city manager’s performance without concerns of protecting employees from public embarrassment[,]” mischaracterizes Respondents’ statements and ignores context. Nothing suggests the City Council considered the city manager at fault (or in dereliction of her job) for the way in which Councilmember Fangary elected to deal with her.[12] Moreover, the comments all explain why the councilmembers did not believe (and did not vote for) Councilmember Fangary on November 21, 2019 to serve as the City’s mayor pro tem.

For completeness, the court evaluates each identified statement for confidentiality and a violation of Section 54963.

·       Councilmember Armato’s statement: “. . . the council unanimously agreed to hire a facilitator.” (RJN, Ex. E p. 659.)

The entire statement by Respondent Armato provides: “In an attempt to help repair the relationship between [the city manager] and [Councilmember Fangary], the council unanimously agreed to hire a facilitator.” (RJN, Ex. E p. 659.) The comment does not address the city manager’s job performance. It relates to repairing the relationship between Councilmember Fangary and the city manager in an attempt to help Councilmember Fangary “succeed” in his work with the City. (RJN, Ex. E p. 650 [Councilmember Massey’s statement].) Nothing in the statement is evaluative of the city manager’s job performance, critical of the city manager or her job performance, or would subject the city manager to embarrassment given the context and a totality of the circumstances. Based on her statements to others, the city manager did not consider Councilmember Fangary’s unwillingness to speak to her confidential.

·       Councilmember Armato’s statement: “We were relieved to hear that . . . .” (RJN, Ex. E, p. 660.)

The entire statement by Respondent Armato provides: “Around the first part of July, [Councilmember Fangary] indicated to us that he, in fact, was not going to be resigning. We were relieved to hear that, we thought he was ready to come to the table to repair that damaged relationship.” (RJN, Ex. E, pp. 659-660.) The comment has nothing to do with the city manager’s job performance. The comment relates to the City Council being “relieved” Petitioner’s husband had decided not to resign. Moreover, Petitioner has not demonstrated her husband advised the City Council he would not be resigning during a closed session.

·       Councilmember Campbell’s statement: “And the fact that I made my motion primarily based on the fact that there was a broken-down, complete breakdown between councilmember Fangary and our City Manager.” (RJN, Ex. E p. 669.)

Respondent Campbell made the statement in the context of explaining a press release about the City’s change in rotation practice concerning the appointment of a mayor pro tem. (See Fangary Reply Decl., Ex. A [text of press release].) For the reasons discussed earlier, Councilmember Fangary’s issues with the city manager and his failure to communicate with her (other than by email or text message) is not disclosure of confidential information from a closed session thereby violating Section 54963.

·       Councilmember Campbell’s statement: “And that the Council decided there was a severe enough disfunction, behind the scenes, that was impacting us . . . .” (RJN, Ex. E p. 671.)

The entire statement by Respondent Campbell provides: “Not because I’ve taken criticism for the motion that I made at all. I feel devastated we are in this position. And that the Council decided there was a severe enough dysfunction, behind the scenes, that was impacting us, our City Manager, and all our city staff by extension—and don’t think they aren’t impacted. They know what’s going on.” (RJN, Ex. E p. 671.) Again, the statement relates to the reason the City Council passed over Councilmember Fangary for appointment as mayor pro tem. While Respondent Campbell’s statement references the city manager, the statement does not specifically relate to or evaluate her job performance. The statement addresses how Councilmember Fangary’s relationship with others impacts the City’s ability to do business.

·       Councilmember Campbell’s statement: “And if we have a serious issue that is getting in the way, on a very routine basis . . . .” (RJN, Ex. E p. 673.)

The entire statement by Respondent Campbell provides: “And if we have a serious issue that is getting in the way, on a very routine basis, and out ability to get our of our way and get the work of the city done, I find it a really pathetic waste of time, energy, attention, and money.” (RJN, Ex. E p. 673.) Like Respondent Campbell’s statement concerning “severe enough disfunction” discussed above, the statement addresses why it would not be in the best interests of the City, according to Respondent Campbell, to have Councilmember Fangary serve as mayor pro tem. The statement does not relate to the city manager’s job performance specifically.

·       Councilmember Campbell’s statement: “So what I meant in my quote in the press release, is yeah, essentially, Council Member Fangary has not been working or communicating with the City Manager.” (RJN, Ex. E p. 675.)

Like Respondent Campbell’s statement concerning “severe enough disfunction” and “we have a serious issue,” discussed above, the statement addresses why it would not be in the best interests of the City, according to Respondent Campbell, to have Councilmember Fangary serve as mayor pro tem. The statement does not relate to the city manager’s job performance specifically. On its face, the statement merely reflects Councilmember Fangary’s unwillingness to communicate with the city manager.

Because the court finds Petitioner has not met her burden of demonstrating Respondents disclosed confidential information from a closed session in violation of Section 54963, Petitioner is not entitled to relief. Therefore, the court need not address Respondents’ claim (1) Petitioner does not have standing to assert a violation of Section 54963; (2) the claim is moot; (3) the open meeting laws do not authorize this court to review the minutes from the City Council’s closed sessions; and (4) Petitioner failed to comply with Government Code section 54960.2, subdivision (a).

Based on the foregoing, the TAP is denied.

ORDER SETTING AMOUNT OF DISCOVERY SANCTIONS

On December 2, 2022, after a hearing on Respondents’ motion to compel, this court ordered Petitioner to sit for her deposition no later than December 23, 2022. (Order, December 2, 2022, p. 2.)

Despite the order, Petitioner did not sit for her deposition on or before December 23, 2022.

After a hearing on Respondents’ motion for terminating sanctions on March 8, 2023, the court ordered Petitioner to sit for her deposition on March 28, 2023 at Respondents’ counsel’s office. The court also found an award of monetary sanctions appropriate and deferred the decision on the amount of sanctions imposed until the date of trial.[13] The court found Petitioner misused the discovery process.

On October 2, 2023, after Petitioner’s request for additional time to file her opposition to Respondents’ request for discovery sanctions in the amount of $33,197.23, the court extended the time for Petitioner to file her opposition to October 31, 2023. (Minute Order October 2, 2023.) Petitioner did not file any opposition by that date or the date of trial.

On November 13, 2023, the day before the trial on the petition, Respondents filed a notice of non-opposition to their request for $33,197.23 as discovery sanctions.

On November 14, 2023, the morning of the trial, Petitioner served the court with an affidavit of actual prejudice under Code of Civil Procedure sections 170.1 and 170.3. The trial did not go forward.

Ultimately, the court reset trial for February 28, 2024.

On February 23, 2024—just three court days before trial—Petitioner filed her opposition brief to the amount of monetary sanctions sought by Respondents. Petitioner’s opposition brief is 115 days late. Petitioner did not seek leave of court to file a late opposition. Respondents have understandably objected to the court’s consideration of the late-filed opposition. Accordingly, on its own motion, the court strikes and does not consider Petitioner’s late-filed opposition.

Respondents explain their entitlement to $33,927.23 as and for discovery sanctions as follows:

As set forth in greater detail below, Respondents incurred a total of $31,927.23 in attempting to secure Petitioner’s deposition following the December Order, which efforts included corresponding extensively with Petitioner’s counsel, noticing and re-noticing Petitioner’s deposition, seeking ex parte relief in connection with Petitioner’s violation of the December Order, preparing for and taking a notice of non-appearance at Petitioner’s scheduled deposition, proceeding with the Motion, and drafting this brief. Respondents anticipate incurring an additional $1,270 in preparing for, and attending, the hearing on the amount of monetary sanctions. Accordingly, Respondents are entitled to a total of $33,197.23 as a result of Petitioner’s and her counsel’s grave misuse of the discovery process, including their willful violation of this Court’s December Order. (Brief in Support of Amount of Monetary Sanctions Previously Imposed filed September 13, 2023 [emphasis added].)

As a preliminary matter, Respondents’ request for $1,270 to prepare and attend the hearing on the amount of sanctions is unreasonable. The court struck Petitioner’s late-filed opposition brief. Respondents’ counsel’s appearance is tied to the trial on the petition. Respondents’ counsel is not required to make a separate appearance on the sanctions issue.

After reviewing the evidence and invoices, the court makes substantial reductions to the amount of sanctions requested.

As to December 2022 billings, the court finds the following reductions in attorneys’ fees sought warranted: 8.8 hours of the 11.4 claimed for services of Megan Garibaldi (MG), all of the hours claimed (.5) for services of Michael Jenkins (MJ), 12.5 of the 12.9 hours claimed for services of John Natalizio (JN), all of the hours claimed (.6) for services of Patrick Donegan (PD) and 1.2 hours of the 1.5 hours claimed for services of Nathalie Camarena (NC).

For MG, the court makes the following reductions: .5 hours on 12/2 for a deposition outline as preparing for a deposition is unrelated to Petitioner’s misuse of the discovery process; .7 hours on 12/5 for the same reason; 2.7 hours on 12/16 to review deposition questions as the discovery sought is unrelated to Petitioner’s misuse of the discovery process; .5 hours of the .8 hours sought on 12/19 as an unreasonable charge for taking a non-appearance certificate; 2.4 hours on 12/20 for services related to an unsuccessful and unnecessary ex parte application; .5 hours on 12/21 for overseeing service of the ex parte application as a wholly administrative expense for which an attorney’s services were unnecessary; and 1.5 hours on 12/22 to attend an unsuccessful and unnecessary ex parte application where the court did not call the matter and ruled from chambers that Respondents failed to make an affirmative, factual showing of irreparable harm. (The court also notes Respondent appeared virtually for at an ex parte hearing on 12/20 that Respondent did not properly place on calendar.)

For MJ, the court finds all time billed (.5 hours) was unnecessary and duplicative. See 12/2 (review deposition draft questions), 12/13 (confer about deposition), 12/19 (confer about no appearance at deposition) and 12/20 (services related to unsuccessful and unnecessary ex parte hearing).

For JN, the court makes the following reductions: 3.3 hours on 12/16 to prepare for Petitioner’s deposition as such services are unrelated to Petitioner’s misuse of the discovery process; 1.10 hours on 12/16 for engaging in a strategy call before the scheduled deposition as it is unrelated to a misuse of the discovery process; 2.0 hours on 12/19 to prepare for the deposition as unrelated to a misuse of the discovery process; .2 hours on 12/19 to attend the deposition where Petitioner did not appear and MG took a non-appearance certificate; and 5.9 hours on 12/20 to draft an unsuccessful and unnecessary ex parte application that did not state an affirmative, factual showing of irreparable harm.

For PD, the court finds all time billed (.6 hours) was unnecessary and duplicative of other attorneys’ efforts (discussing options for a motion to compel).

For NC, 1.2 hours for services on 12/20 for researching terminating sanctions for the unsuccessful and unnecessary ex parte application. In addition, the amount of time expended for such services—given the statutory authority—appears unreasonable.

Given the reasonable billing rates of the attorneys, the court finds monetary sanctions in the amount of $813 warranted for services performed by Respondents’ attorneys in December 2022. The court finds reasonable 2.6 hours billed by MG at $254 per hour; .4 hours billed by JN at $218 per hour; and .3 hours billed by NC at $218 per hour.

As to January 2023 billings, the court finds the 2.5 hours expended by MG reasonable and justified. The court also finds the 1.9 hours expended by JN reasonable and justified. As to services provided by Scott Shapses (SS), the court finds much of the time unreasonable and excessive. Between January 18 and January 31, 2023, SS spent 26.5 hours—more than three full-time days—drafting the motion to compel and supporting declaration. While factually detailed, the motion is not complex. It consists of 23 pages with six pages of legal analysis related to discovery. Of the time claimed by SS, the court reduces 10.5 hours of the 26.5 claimed for drafting the motion and .2 hours for time expended on 1/11 for an email duplicating the efforts of JN.

Given the reasonable billing rates of the attorneys, the court finds monetary sanctions in the amount of $941 warranted for services performed by Respondents’ attorneys in January 2023. The court finds reasonable 2.5 hours billed by MG at $254 per hour; 1.9 hours billed by JN at $218 per hour; and 16.5 hours billed by SS at $218 per hour.

As to February 2023 billings, the court finds the following reductions in attorneys’ fees sought warranted: 9.1 of the 13.5 hours claimed for services of MG, all of the hours claimed (.8) by SS, all of the hours claimed (.3) by MJ.

As to MG, the court makes the following reductions: 9.1 hours of the 11.1 hours claimed by MG for services related to revisions to the motion for terminating sanctions (2/1/23, 2/3/23, 2/6/2023, 2/9/2023 and 2/10/2023). As noted earlier, the motion consists of 20 pages with only six pages of legal argument. The court found 16 hours expended by SS and an hour of revisions by MG in January 2023 reasonable. The court finds two additional hours for revisions reasonable to the motion reasonable.

As to SS, the court finds .8 hours for additional revisions to the motion on 2/1/23 unreasonable given the motion and the two full days permitted for drafting the motion.

As to MJ, the court finds .3 hours to converse with MG about strategy duplicative and unnecessary.

Given the reasonable billing rates of the attorneys, the court finds monetary sanctions in the amount of $2,687.20 warranted for services performed by Respondents’ attorneys in February 2023. The court finds reasonable 4.4 hours billed by MG at $254 per hour and 7.2 hours billed by JN at $218 per hour.

As to March 2023 billings, the court finds the following reductions in attorneys’ fees sought warranted: 7.5 hours of the 11.6 claimed for services of MG, all of the hours claimed (.3) for services of MJ, .5 of the 4.6 hours claimed for services of JN, all of the hours claimed (.7) for services of SS.

As to MG, the court makes the following reductions: 4.0 of the 5.0 hours claimed on 3/1/23 for revising the brief for which the court has allowed 16 hours for its preparation by SS; .3 hours claimed on 3/2/23 and .1 hours claimed on 3/3/23 for “coordination” as unreasonable or administrative in nature; and 3.1 of the 4.6 hours claimed to attend the hearing on the motion (and other block billed services).

As to JN, the court reduces by the .5 hours claimed on 3/7/23 for research and strategy for the motion. Such services were duplicative of those provided by MG.

As to SS, the court finds .1 hours claimed for “debriefing” and .6 hours to review the tentative decision unreasonable and unnecessary. As SS did not argue the motion, his review of the tentative decision was duplicative.

Given the reasonable billing rates of the attorneys, the court finds monetary sanctions in the amount of $1,935.20 warranted for services performed by Respondents’ attorneys in March 2023. The court finds reasonable 4.1 hours billed by MG at $254 per hour and 4.1 hours billed by JN at $218 per hour.

Based on the foregoing, the court sets the amount of sanctions awarded at $6,376.40 as and for discovery sanctions based on Petitioner’s misuse of the discovery process. As noted earlier, the court previously found monetary sanctions should be awarded against Petitioner in favor of Respondents on March 8, 2023. The court merely left open the appropriate amount of those sanctions.

IT IS SO ORDERED. 

February 28, 2024                                                                                                                                                                                                                                                             ________________________________ 

Hon. Mitchell Beckloff  

Judge of the Superior Court