Case Number: BC677896 Hearing Date: November 18, 2019 Dept: 4A

Motion for Sanctions

Having considered the moving, opposing, and reply papers, the Court rules as follows.

Former counsel for Defendant/Cross-Complainant Todd Sugimoto filed an unauthorized sur-reply, which the Court has not considered.

BACKGROUND

On October 4, 2017, Plaintiffs Dimitri Chami and Jeansalva Lisabet Lopez filed a complaint against Defendant Todd Sugimoto alleging negligence for an automobile collision that occurred on November 7, 2015.

On November 14, 2017, Defendant/Cross-Complainant Todd Sugimoto filed a cross-complaint against Plaintiff/Cross-Defendant Dimitri Chami seeking contribution, indemnity, and declaratory relief.

On November 14, 2017, Defendant/Cross-Complainant Todd Sugimoto filed a first amended cross-complaint to also name Plaintiff/Cross-Defendant Jeansalva Lisabet Lopez as a cross-defendant.

On September 18, 2019, Plaintiff/Cross-Defendant Dimitri Chami filed a motion for discovery sanctions against Defendant/Cross-Complainant Todd Sugimoto, his current counsel, and his prior counsel.

Trial is set for June 1, 2020.

PARTIES’ REQUESTS

Plaintiff/Cross-Defendant Dimitri Chami (“Moving Party”) asks the Court to strike a fraudulent motion to compel orthopedic examination filed on October 22, 2018, a fraudulent motion to compel orthopedic examination filed on July 16, 2019, and a notice of errata filed on July 23, 2019.

Moving Party also asks the Court to set aside a December 6, 2018 Court order granting the first motion to compel.

Moving Party further asks the Court to issue $2,535 in monetary sanctions against Defendant/Cross-Complainant Todd Sugimoto’s (“Opposing Party”) current and former counsel, jointly and severally.

Moving Party additionally asks the Court to issue evidence sanctions precluding Opposing Party from introducing evidence or opinions derived from conducting either orthopedic examination.

Moving Party lastly asks the Court to compel all of Dr. Korchek’s reports produced to Plaintiff’s counsel within 20 days.

Opposing Defendant requests that the Court impose $2,266.25 in sanctions against Moving Party for the expense incurred in opposing this allegedly frivolous motion.

Opposing Defendant’s former counsel asks the Court to impose $1,675.25 in sanctions against Moving Party to cover the costs of opposing this motion.

LEGAL STANDARD

California Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” California Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following:

Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

Using a discovery method in a manner that does not comply with its specified procedures.

Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

Failing to respond or to submit to an authorized method of discovery.

Making, without substantial justification, an unmeritorious objection to discovery.

Making an evasive response to discovery.

Disobeying a court order to provide discovery.

Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the second governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.”

“Discovery sanctions must be tailored in order to remedy the offending party’s discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) “Although the court has discretion in choosing a sanction, this discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193 (citation omitted).) “Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Ibid. (citations omitted).)

DISCUSSION

Moving Party argues Opposing Party’s examining doctor double-billed for a missed appointment. (Motion, p. 5:5-5:9.) Moving Party failed to appear at a noticed physical examination in 2018. (Motion, p. 4:22.) Moving Party’s former counsel was told it would be in violation of a Court order if Plaintiff did not submit to a second physical examination after the Court-ordered January 3, 2019 examination. (Motion, pp. 5:11-5:20.) Thus, Moving Party’s former counsel agreed to have Moving Party submit to a second examination. (Ibid.) Moving party failed to appear at the second examination. (Motion, p. 6:1.) Opposing Party falsely declared that Moving Party failed to make a payment. (Motion, p. 6:1-6:6.) Opposing Party failed to produce written reports for the two examinations. (Motion, p. 7:4-7:6.)

The Court finds Moving Party has not met his burden for a variety of reasons.

First, Moving Party cites no authority allowing for the Court to set aside motions or notices of errata. These are not orders and are not subject to being set aside pursuant to California Code of Civil Procedure section 473 and similar code sections.

Second, Moving Party’s disorganized and extremely confusing motion does not clearly set forth the nature of Opposing Party’s alleged fraud that led to the Court’s December 5 and 6, 2018 orders compelling Moving Party’s attendance at a physical examination. Moving Party refers to the double payment of fees by examining doctor Jeffrey Korchek, but it is less than clear how this could constitute fraud relied on by the Court relied in issuing the December 6, 2018 order.

Rather, as Opposing Party’s counsel clearly lays out, Moving Party did not oppose the motions to compel filed prior to the December 5, 2018 order and December 6, 2018 order. (Ross Decl., ¶¶ 10, 13.) Moving Party agreed to a second examination because Moving Party had undergone major shoulder surgery and major spine surgery just prior to the January 3, 2019 Court-ordered examination. (Ross Decl., ¶¶ 14-17.) Moving Party’s new and current counsel again stipulated to a second examination. (Ross Decl., ¶ 20.) Moving Party failed to appear at the second examination even though his new and current counsel had agreed it could go forward. (Ross Decl., ¶ 26.) Opposing Party filed a motion to compel and for the reimbursement of no-show fee for the medical examination. (Ross Decl., ¶ 29.) Two days later, Moving Party informed Opposing Party that he paid the no-show fees. (Ross Decl., ¶ 30.) Opposing Party then filed a notice of errata stating he was no longer seeking reimbursement for the no-show fee. (Ross Decl., ¶ 33.)

The Court finds Moving Party’s motion is frivolous. There is no factual basis for this motion. Moving Party has not identified any fraudulent statements that misled the Court in issuing its December 5 and December 6, 2019 rulings. The only potential fraud cited is that Opposing Party sought a no-show fee that it already collected. However, Opposing Party made clear through a notice of errata that he was no longer seeking payment for that fee. Additionally, that hearing never went forward because Moving Party appeared at the demanded medical examination. (Ross Decl., ¶ 37.) Further, Dr. Korchek’s and Dr. Feuerman’s reports were served on all parties the day before Moving Party filed this motion. (Ross Decl., ¶ 38.) Additionally, it was proper for Opposing Party’s former counsel to file an opposition, because Moving Party has sought sanctions from Opposing Party’s former counsel.

Opposing Party seeks $2,266.25 in sanctions for 1 hour in emailing and calling, 9 hours in drafting the opposing papers, and 1 hour in appearing at the hearing at a rate of $185 an hour, plus 2.5 hours for traveling to and from the hearing at a rate of $92.50 an hour. (Ross Decl., ¶ 40.) The Court finds half a day is a sufficient amount of time to oppose this frivolous motion. Thus, $1,110 ($185/hr. x 6 hrs.) is a reasonable amount of sanctions.

Opposing Party’s prior counsel seeks $1,675.25 in sanctions for 10 hours in drafting the opposing papers and 1 hour in appearing at the hearing at a rate of $143.75 an hour plus one $94 Court Call fee. (Kaufman Decl., ¶¶ 31-32.) Similarly, the Court finds half a day to be a sufficient amount of time to oppose this frivolous motion. Thus, $956.50 ($143.75/hr. x 6 hrs. plus one $95 Court Call fee) is a reasonable amount of sanctions.

Moving Party’s motion is DENIED.

Moving Party and his counsel of record are ordered to pay Opposing Party $1,110, jointly and severally, within 30 days of this ruling.

Moving Party and his counsel of record are ordered to pay Opposing Party’s prior counsel, Mark R. Weiner & Associates, $956.50, jointly and severally, within 30 days of this ruling.

Opposing Party is ordered to give notice of this ruling.