Case Number: BC523247    Hearing Date: September 15, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

HEE SUCK SUH, et al.,

Plaintiff(s),
v.

DENNIS CHUNG, et al.,

Defendant(s). Case No.: BC523247

Hearing Date: September 15, 2014

[TENTATIVE] ORDER RE:
PLAINTIFFS HEE SUCK SUH AND MI SOON KO’S MOTION FOR AN ORDER AWARDING ATTORNEY FEES FOR DEFENSE COUNSEL’S FAILURE TO CONDUCT DEPOSITIONS; REQUEST FOR SANCTIONS

Plaintiffs Hee Suck Suh and Mi Soon Ko’s Motion for an Order Awarding Attorney Fees for Defense Counsel’s Failure to Conduct Depositions; Request for Sanctions is GRANTED in the amount of $3,400.00.

Legal Standard

Plaintiffs move for sanctions against Defendant pursuant to CCP Sections 2025.430 and 2023.010. Defendant Dennis Chung has filed an Opposition with supporting Declaration and Exhibits. However, the Opposition was untimely in that it was filed four days late and served late because service did not account for five days for mailed notice. No explanation is given by Defendant as to why the Opposition was filed late, or why it was not served by personal service or at least overnight mail in a situation where it was filed late. Presumably Defendant had sufficient time in which to file an Opposition because the Motion was filed on July 1, 2014. Because the Court’s tentative is to grant the Motion, the Court has reviewed the late Opposition and intends to hear the matter on September 15, 2014, unless there is an objection by

Plaintiffs.

CCP Section 2025.430 states:

If the party giving notice of a deposition fails to attend or proceed with it, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party, or the attorney for that party, or both, and in favor of any party attending in person or by attorney, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

CCP Section 2023.030(a) states: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” Misuse of the discovery process includes: “Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense” and “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 section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” (CCP, §§ 2023.010(c) and (i).)

Timeline of Events
• January 7, 2014: subpoena issued by Defendant to Coast Surgery Center for its deposition to take place on March 27, 2014 at 10:00 a.m. (Opp., Wendell Decl. (“Wendell Decl.”), Exh. A.)
• January 28, 2014: subpoena issued by Defendant to Dr. Roy Simon for his deposition to take place on March 11, 2014 at 1:00 p.m. at his Torrance office. (Wendell Decl., Exh. K.)
• February 27, 2014: Coast Surgery Center mailed an objection to the subpoena to counsel for Plaintiffs and Defendant. (Wendell Decl., Exh. B.)
• March 10, 2014: Plaintiffs’ counsel served a joinder to the objection by Coast Surgery Center. (Wendell Decl., Exh. C.)
• March 11, 2014: Dr. Simon’s deposition was re-scheduled for April 28, 2014, to be held at his Westwood office. (Wendell Decl., Exh. L.)
• March 26, 2014: Plaintiffs’ counsel confirmed Coast Surgery Center’s deposition was going forward with defense counsel’s firm.
• March 27, 2014: Plaintiffs’ counsel drove to Coast Surgery Center’s deposition and were told that the deposition had been cancelled days earlier by defense counsel. (Motion, pp. 6:23-7:1.)
• April 27, 2014: Plaintiffs’ counsel confirmed Dr. Simon’s deposition was going forward with defense counsel’s firm. (Motion, p. 8:4-7.)
• April 28, 2014: Plaintiffs’ counsel drove to Dr. Simon’s Westwood office, but no one from defense counsel’s office appeared. Plaintiffs’ counsel and Dr. Simon were subsequently told that that defense counsel went to the wrong office. (Motion, p. 8:7-17; Toppila Decl. (“Toppila Decl.”) ¶7 and Exh. 6.)

Discussion

After both of these incidents, Plaintiffs’ counsel sent meet and confer letters to defense counsel requesting reimbursement for the costs associated with both cancelled depositions. (Toppila Decl., Exhs. 3 and 7.) Defense counsel refused to pay Plaintiff’s counsel for the costs. (Toppila Decl., Exhs. 3 and 7; Wendell Decl., Exhs. E and H.)
Defendant is liable to Plaintiffs for sanctions for both cancelled depositions pursuant to CCP Section 2025.430, unless the Court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Defendant argues that the failure to inform Plaintiffs’ counsel that Coast Surgery Center’s deposition was inadvertent and based on excusable neglect because it was cancelled following receipt of Plaintiffs’ joinder in the objection, given the objection states the deposition would not go forward. (See Objection, Wendell Decl., Exh. B, p.21.) Defense counsel contends that the calendaring personnel at her firm failed to send a letter to the other parties informing them that the deposition was cancelled. (Wendell Decl. ¶7.) However, there are no facts provided to indicate why the correspondence was not sent to Plaintiffs’ counsel. Since defense counsel was not apparently not responsible for the sending the letter, it does not appear she has a basis for stating that the failure to send the cancellation letter was due to inadvertence, mistake or excusable neglect. Moreover, as is discussed below, even if the failure to send a letter to Plaintiffs’ counsel was because of an error, it still seems more fair for the cost of the mistake to fall on the party in error.
With respect to Dr. Simon’s deposition, defense counsel states her firm’s calendaring clerk failed to update the computer system with the new location for the deposition, such that she proceeded to the wrong location. (Wendell Decl. ¶¶19-26.) This likewise suggests that defense counsel’s failure to proceed with Dr. Simon’s deposition was the result of defense counsel’s mistake.

Relief from CCP Section 2025.430 is permitted when the party against who sanctions are sough acted with substantial justification or the imposition of sanctions would be unjust. Similarly, relief from mistake, inadvertence or excusable neglect pursuant to CCP Section 473(b) is to be made “upon any terms as may be just.” Under the circumstances here, Defendant’s counsel did not act with “substantial justification,” and has not demonstrated that the imposition of sanctions would be unjust. Although Coast Surgery filed an Objection to the Deposition Subpoena and stated that its PMK “will not attend the deposition or produce documents,” this does not necessarily mean that Plaintiffs could assume the deposition was cancelled unless the noticing party – Defendant – sent a notice that they had in response cancelled the deposition. It is undisputed that they did not.

Further, Defendant offers no reason why it would be unjust for his attorneys to bear the financial burden of their mistakes, given the costs that have been imposed on Plaintiff’s counsel as a result of those mistakes. While mistakes do inevitably happen in litigation, the party that is not at fault should not suffer the financial consequences of those mistakes in lieu of the party that is at fault. This is particularly the case here where it appears a mistake was made as to two depositions, so this is not an isolated incident.

Accordingly, sanctions are appropriate; however, the amount requested is excessive. First, in light of the fact that both Coast Surgery Center and Plaintiffs filed Objections to the Deposition subpoena, and Coast Surgery Center indicated that its PMK did not plan to attend the deposition, it was excessive for Plaintiffs to send two attorneys to the depositions.

Accordingly, the court will include three hours for the March 27, 2014 deposition and three hours for the April 28, 2014 deposition. Plaintiffs fail to submit a declaration from attorney Jessica Lim, so her hourly rate is unknown. Given the hourly rate of the senior partner of $350 per hour, the Court is assuming a lower hourly rate, and will reimburse this time at $200 per hour. Similarly, the Court will include in the sanctions an additional three hours in connection with the motion at $200 per hour, plus the $60 filing fee, for a total of $1860. (See Toppila Decl. ¶15.)

Plaintiffs are ordered to give notice.

DATED: September 15, 2014
_________________________
Hon. Gail Ruderman Feuer
Los Angeles Superior Court