Tentative Rulings

Case Number: ****7754    Hearing Date: January 14, 2020    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Plaintiff Leon Nazari (“Plaintiff”) moves for sanctions against Defendant Los Angeles Unified School District (“Defendant”), alleging abuses of the discovery process. Code of Civil Procedure section 2023.010 provides that “[f]ailing to respond or to submit to an authorized method of discovery” and “[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery” are misuses of the discovery process. (Code Civ. Proc., ; 2023.010, subds. (d), (h).)

Plaintiff raises three issues:

1. Second Site Inspection – Plaintiff alleges that Defendant abused the discovery process by failing to permit Plaintiff to conduct a site inspection of the playground where the accident occurred. However, this was the second site inspection, which Plaintiff sought after the deadline. Regardless of whether Defendant was being “unreasonable,” Defendant had no obligation to permit Plaintiff to conduct a subsequent inspection of the same site, especially after the deadline. (See New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1427-1428.) Therefore, the Court cannot conclude that Defendant failed to submit to an authorized method of discovery, meaning that sanctions are not justified.

2. Opposition to Ex Parte Application – Plaintiff seeks sanctions in connection with Defendant’s opposition to his ex parte application for a second site inspection. This request is denied. As discussed, Defendant had a meritorious opposition to the application. Regardless, at the hearing Defendant stipulated to permit the inspection. Accordingly, the Court cannot conclude that Defendant unsuccessfully opposed that application.

The Court disagrees with Plaintiff’s characterization that the “ex parte application was essentially granted.” To the contrary, the Court had concerns whether it had authority to order a site inspection by way of ex parte application. (See St. Paul Fire and Marine Insurance Company v. Superior Court (1984) 156 Cal.App.3d 82, 85.) Plaintiff is not entitled to sanctions simply because the Court mediated the discovery dispute, leading to a stipulation.

3. Missed Deposition – Finally, Plaintiff seeks sanctions because Defendant’s trial counsel, Mr. Dennis Wheeler, failed to appear for the deposition of Plaintiff’s expert witness, Dr. Jacob Tauber. The deposition was scheduled for December 17, 2019. The day before the deposition, on December 16, 2019, at 9:17 a.m., Plaintiff’s counsel informed Defendant’s counsel via email that Dr. Tauber’s deposition would be taken off-calendar because he was in the hospital with pneumonia. (Declaration of Michael P. Ruben, ¶ 16.) Defendant’s in-house counsel, Ms. Sabryna Beckles, and Mr. Wheeler both confirmed receipt of the email that the deposition would not go forward. (Ibid.) Then, Dr. Tauber recovered sufficiently to go forward with the deposition, and Plaintiff’s counsel alerted Ms. Beckles. (Id., ¶ 17.) At 2:37 p.m., Ms. Beckles’ secretary informed Plaintiff’s counsel that the deposition could go forward as originally scheduled. (Id., ¶ 18.) However, Mr. Wheeler did not appear. According to Ms. Beckles, she advised Mr. Wheeler via email. (Declaration of Sabryna D. Beckles, ¶ 14.) Ms. Beckles called Mr. Wheeler when he did not appear that morning, and he indicated that because Plaintiff’s counsel indicated there was a “sudden hospitalization,” he did not think the deposition would go forward. (Id., ¶ 16.) The Court finds that both parties are responsible for the confusion resulting in Mr. Wheeler’s failure to appear at the deposition. Therefore, an award of sanctions to Plaintiff would be unjust.

4. Defendant’s Request for Sanctions – Defendant requests sanctions for opposing the instant motion. The Court declines to award sanctions to Defendant, finding that both parties are responsible for the discovery disputes at issue, and an award of sanctions to Defendant (just like an award of sanctions to Plaintiff) would be unjust.

CONCLUSION AND ORDER

Plaintiff’s motion for sanctions is denied. Defendant’s request for sanctions is denied. Plaintiff shall provide notice and file proof of such with the Court.

DATED: January 14, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court