Lawzilla Additional Information:
Per the Los Angeles court records plaintiff is represented by attorney Stanley Stone who are being sanctioned by the court.

Case Number: BC640656 Hearing Date: May 14, 2018 Dept: 3

JUDY PORTONE,

Plaintiff(s),

vs.

AVENUE 31, ET AL.,

Defendant(s).

CASE NO: BC640656

[TENTATIVE] ORDER GRANTING MOTION FOR SANCTIONS IN PART

Dept. 3

1:30 p.m.

May 14, 2018

1. Background Facts

Plaintiff, Judy Portone filed this action against Defendants, Avenue 31, et al. for premises liability on 11/15/16. Defendants, Montgomery Management Company, et al. (“MMC”) answered and filed a cross-complaint against Cross-Defendants, 8630 Sunset Plaza, LLC dba Avenue 31 and Stefano Frittella (collectively “Avenue 31”) on 3/21/17. On 5/09/17, Defendants filed proof of service of the cross-complaint, and 7/06/17, the Clerk entered Cross-Defendants’ defaults.

a. Deposition in Los Angeles

Plaintiff resides outside of Chicago. Plaintiff was injured in Los Angeles when she was visiting her son, who resides here. All parties agree that, in late January and early February, Plaintiff indicated a willingness to travel to Los Angeles for deposition, but the deposition needed to be coordinated with the Avenue 31 co-defendants/cross-defendants. The parties disagree concerning MMC’s attempts, if any, to coordinate the deposition and IME with Avenue 31.

Plaintiff’s attorney declares that, on 1/29/18, and again on 2/01/18, he e-mailed Avenue 31’s attorney in an attempt to agree to deposition dates. Plaintiff’s attorney attaches these e-mails as Exhibits D and E to the moving papers. Exhibit D shows that, on 1/29/18, MMC’s attorney e-mailed Avenue 31’s attorney, CC-ing Plaintiff’s attorney, and indicated that Plaintiff is available for deposition on February 12 and 13, 2018, and he would like to know, by the next day, if this would work for Avenue 31. Exhibit E to the moving papers is an e-mail exchange between MMC and Avenue 31. On 1/31/18, Avenue 31 wrote to attach a copy of “the policy”; the e-mail is unrelated to the discussion of Plaintiff’s deposition and IME. On 2/01/18, MMC wrote back to thank Avenue 31 for the policy and to ask about the deposition dates. MMC’s attorney declares there was never a response to the inquiries concerning the deposition and IME.

With Plaintiff’s opposition to the motion for sanctions, Avenue 31’s attorney declares he would have been happy to have the deposition in Los Angeles, and any representation that he didn’t agree to the deposition is false. He does not, however, address Exhibits D and E to the moving papers, or provide contrary evidence showing that he ever responded to the e-mails. While he may have been, theoretically, amenable to having the deposition in Los Angeles, absent communication to MMC’s attorney in this regard, there was no agreement to have the deposition in Los Angeles.

b. Notice of Deposition and Notice of IME in Chicago

Between 11/28/17 and 2/13/18, Mr. Constantinides engaged in multiple attempts to coordinate a mutually agreeable date for Plaintiff’s deposition, to no avail. On 2/13/18, MMC noticed Plaintiff’s deposition for 3/13/18 in Chicago. Plaintiff’s attorney communicated that this was not an available date, and the two attempted to meet and confer. Plaintiff’s attorney did not, however, provide available dates, and ultimately, on 3/07/18, MMC served a notice of deposition for 4/05/18 in Chicago. Plaintiff’s attorney declares he was prepared to go to Chicago for the deposition.

On 3/12/18, MMC personally served a notice of IME, setting the IME for 4/11/18 in Chicago.

About a week after being served with the deposition notice, served on 3/7/18, Mr. Stone says he called Mr. Constantinides and asked that the IME be rescheduled to “a date either just before or just after” the deposition so he would not have to travel to Chicago twice. Stone Dec. par. 6. MMC’s attorney declares that he told Plaintiff’s attorney that before he agreed to reschedule the IME he needed some proposed alternative dates, that Plaintiff’s attorney said he would get back to him but he received no further communication regarding the IME or deposition from Plaintiff’s attorney. Pars. 21-23. In contrast Mr. Stone declares that when he asked Mr. Constantinides to move the IME date, Mr. Constantinides “told me that he would take care of it” but that he never heard back from Mr. Constantinides regarding this. Stone Dec. par. 6. Mr. Stone does not say that they discussed any particular alternative date or time.

MMC’s attorney declares that on 3/27/18 he left a voicemail message for Plaintiff’s attorney inquiring about a possible change of location for the 4/5/18 deposition but that he never received a response. Constantinides Dec. pars. 26-27. Plaintiff’s attorney does not deny this message nor address it.

There was no objection served to either the notice of deposition or the notice of IME, and neither Plaintiff nor her attorney appeared at either.

c. Stipulation to Continue Trial

On 3/16/18, the attorneys for Plaintiff and MMC signed a stipulation to continue the trial date. Avenue 31 and MMC sought a 120-day continuance, and Plaintiff’s attorney signed but indicated he does not agree to 120 days and instead wishes the continuance to be for 90 days. This stipulation apparently was never adopted as an order. Thus at the times of the scheduled deposition (4/05/18) and IME (4/11/18), the trial was still set for 5/15/18.

Plaintiff’s attorney declares he did not concern himself about the fact that the IME had not been moved to a date closer to the deposition because the parties had agreed to continue the trial date, and “I believed [MMC attorney] was adhering to the stipulation that we had regarding discovery.” Stone Dec. par. 6. Plaintiff takes the position that the parties had agreed, and the parties’ stipulation reflects this agreement, to continue the deposition and IME. Mr. Stone avers that “all parties agreed to stay or continue previously scheduled depositions including the deposition of my client….” Stone Dec. par. 3.

The actual language of the stipulation in this regard is as follows: “The parties continue to be engaged in necessary discovery and there are certain scheduling/calendaring conflicts that will necessitate this trial continuance, including logistics of the parties, Plaintiff being in Chicago…The depositions of the party witnesses still need to be completed and the parties need to work out logistics and procedure for a defense medical evaluation of Plaintiff prior to trial.”

d. Ex Parte Application

On 4/13/18, the parties appeared for two ex parte applications, brought by MMC. One application sought an order compelling Plaintiff’s deposition, and the other sought an order compelling Plaintiff’s IME. Both applications were granted. The Court ordered Plaintiff to appear for deposition for 5/01/18 and an IME on 5/02/18. The Court deferred the issue of monetary sanctions to be considered on noticed motion.

Additionally, on 5/01/18, the parties submitted a joint stipulation, on the form required by the personal injury courts, to continue the trial date from 5/15/18 to 9/25/18. The Court signed the order on the stipulation the same day, and trial is now set for 9/25/18.

2. Analysis

The issue presented is whether or not the Court should sanction Plaintiff for failing to appear at her deposition and/or IME. The crux of Defendant’s position is that Plaintiff did not object to either notice, and Defendant flew to Chicago and incurred various expenses including attorneys fees, air fare, court reporter and medical doctor expenses, in connection with the scheduled deposition and IME. The crux of Plaintiff’s position is that Defendant was unreasonable in proceeding with the deposition and IME, both because the parties’ allegedly agreed to continue the deposition in accord with the stipulation which Plaintiff argues expressly indicated the matters were being continued, and also because Defense Counsel did not confirm the deposition the day before the deposition.

This is a difficult issue. The parties’ stipulation does not actually indicate that the noticed deposition and/or IME is stayed or continued. It does, however, indicate that the parties “need to compete” depositions of “party witnesses,” and that they need to “work out logistics and procedure for a defense medical evaluation of Plaintiff prior to trial.” There is, however, nothing in the stipulation indicating that the stipulation is intended to take currently scheduled depositions and/or medical examinations off calendar. Additionally, the stipulation had not been signed by the court as of the dates set for the deposition and/or IME, and Defendant needed to have the two go forward before the then-scheduled trial date of 5/15/18.

Moreover, the Court is not persuaded that there was a verbal agreement to continue or stay the deposition or IME. Mr. Stone’s declaration in this regard is vague as to when such agreement was made and what was said. There is no corroborating evidence. It seems more plausible to the Court that Mr. Stone assumed the matters were being continued in view of the stipulation to continue trial.

That being said, the Court agrees with Plaintiff that MMC should have attempted to confirm the deposition was going forward before incurring the substantial expense of flying to Chicago, especially in view of the stipulation with the vague language about scheduling/calendaring conflicts and logistics that need to be worked out.

On balance, the Court is inclined to split the difference. Defendant is seeking to recover a total of $8268.09 in sanctions against Plaintiff and her attorney of record for misuse of the discovery process. The declarations in support of the motion show that the amounts were both reasonably and actually incurred. The Court is inclined to require Plaintiff and her attorney of record to pay half of the amount, and to require Defendant to “eat” the remaining half. Thus, Plaintiff and her attorney, jointly and severally, are ordered to pay sanctions to Defendant MMC, by and through its attorney of record, in the total amount of $4134.04. Payment must be made within 30 days.

Counsel for MMC to give notice.