Judge: Shirley K. Watkins, Case: 20VECV01216, Date: 2022-09-13 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 20VECV01216    Hearing Date: September 13, 2022    Dept: T

Motion for terminating sanctions denied.  Motion for monetary sanctions granted.

 By law, as counsel for moving party should know, terminating sanctions cannot be granted for failure to pay attorneys fees.  An order for attorney fees is a fully integrated document which can be enforced as a judgment without actual entry of judgment.  There are remedies for failure to pay fees: enforcement proceedings.

The sole basis of this motion filed on 8/17/2022 is the failure to comply with the court’s order of June 24, 2022, which required plaintiff to provide verified answers to Form Interrogatories by July 22, 2022.  According to defense counsel, as of 8/17/2022 when the motion was filed, plaintiff had not provided the verified court ordered answers to Form Interrogatories. 

It would appear that the cause of the discovery failures may solely be former counsel Mr. Brifman's fault.  Ordinarily, the court will not assess terminating sanctions due to failure of counsel to act appropriately.

It is of no consequence whether new counsel may have known about these problems before he substituted into the case.  Until there was a formal substitution, he had no obligation to the court and defense counsel.  No terminating sanctions will be awarded for the conduct of an attorney before he substitutes into the case.

On 8/20/2022, plaintiff’s counsel provided a declaration in opposition to the motion.  According to counsel, former counsel Mark Brifman “retired on or about July 2022” and his office received the file at the end of July 2022 with retention occurring on August 3, 2022.

Since the motion was filed, new counsel has submitted the response to court ordered discovery.  If they are deficient, then a meet and confer is required.  However, as the responses have been served, then the court will not issue terminating sanctions.

The notice of motion asked, as an alternative, for monetary sanctions in having to file this motion.  The court finds that sanctions are warranted against former counsel Mr. Brifman for his failure to provide the responses timely, or to seek relief from the court, or to seek assistance from other counsel if he was physically unable to attend to his work.  Sanctions for discovery abuse in the sum of $1,060.00 is awarded pursuant to CCP section 2023.010 against Mark Brifman, payable to the client trust account of Wright, Finlay & Zak, LLP, 4665 MacArthur Court, Suite 200, Newport Beach, CA 92006 within 30 days.

COUNSEL ARE TO MEET AND CONFER ON THE CURRENT FSC AND TRIAL SCHEDULE TO DETERMINE WHETHER THEY CAN REALISTICALLY MEET THESE DEADLINES OR WISH FOR A SHORT CONTINUANCE.  PLEASE DO NOT WAIT UNTIL THERE IS VIOLATION OF THE COURT RULES FOR PREPARATION FOR FSC TO SEEK A CONTINUANCE.

Clerk to give notice.