KC062474

MOTION FOR MONETARY SANCTIONS FOR VIOLATION OF CRASH MSC ORDERS

Moving Party: Defendant State of California Department of Developmental Services

Respondent: Plaintiff Wayne Kendrix

POS: Moving OK; Opposing OK; Reply OK

In this action the plaintiff alleges that defendants committed discrimination based on religion, medical condition and/or disability, and race. The Final Status Conference is set for 4/17/14. Trial is set for 4/29/14.

Defendant State of California Department of Development Services (“Defendant” or “DDS”) moves for an order imposing monetary sanctions against Plaintiff’s counsel, Martin B. Reiner (“Plaintiff’s counsel” or “Mr. Reiner”). The motion is made pursuant to CCP § 177.5, California Rules of Court, Rule 2.3(b) and 3.1380, and the Superior Court of Los Angeles County, Local Rules, Rule 3.25, based upon Mr. Reiner’s failure to comply with the following: (1) this court’s December 13, 2013 order directing Mr. Reiner to provide notice of the CRASH MSC to Defendants, to personally attend the CRASH MSC, and to timely sere and submit a Settlement Conference Statement; (2) the January 3, 2014 order of Judge Bendix directing Mr. Reiner to personally appear at the CRASH Settlement Program Mandatory Settlement Conference (“CRASH MSC”), to lodge/serve a Settlement Conference Statement, and to provide notice of the order, and (3) California Rules of Court, Rule 3.1380 and Los Angeles County Superior Court Local Rules, Rule 3.25(d) & (e) requiting briefing for and personal attendance at Settlement Conferences.

CCP § 177.5:

“A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both.” (CCP § 177.5.) Sanctions may be imposed for a knowing violation of a valid court order without good cause or substantial justification. (Winikow v. Sup.Ct. (Schroeder) (2000) 82 Cal.App.4th 719, 726; see Seykora v. Sup.Ct. (1991) 232 Cal.App.3d 1075, 1081 — all that need be shown is that there was no valid excuse for the violation.)

CALIFORNIA RULES OF COURT AND LOCAL RULES:

Trial counsel, parties, and persons with full authority to settle the case must personally attend the settlement conference, unless excused by the court for good cause. If any consent to settle is required for any reason, the party with that consensual authority must be personally present at the conference. (CRC, Rule 3.1380(b).) Counsel are also required to file and serve a written settlement conference statement. (CRC, Rule 3.1380(c).)

Unless good cause is shown, the court may order a person to pay reasonable monetary sanctions to the court and/or to any aggrieved person for violation of CRC 3.1380, in addition to any other sanction permitted by law. (CRC 2.30(b).) Sanctions are limited to monetary sanctions plus reasonable expenses, including attorney fees, incurred in connection with the sanctions motion or the order to show cause. (CRC 2.30(b),(d).) Sanctions may be imposed against a party or counsel, or both. (CRC 2.30(b).)

Counsel must attend the settlement conference and be familiar with the pertinent available evidence involving both liability and damages. Counsel must be prepared to discuss the case in depth and, except for good cause shown, must be the person who will try the case. (Local Rule 3.25(d)(3).) Each party must submit to the court and serve all other parties a written statement no later than five days before the settlement conference. (Local Rule 3.25(e).)

DEFENDANT’S EVIDENCE:

On December 13, 2013, this court issued an order assigning this case to the CRASH MSC Program for the week of January 27 to January 31, 2014. (Motion, Balekjian Decl. ¶ 2, Exh. A.) The court ordered Mr. Reiner to give notice of its December 13, 2013 order. (Ibid.)

On January 3, 2014, this court (Judge Bendix) ordered the parties and lead trial counsel for the parties to attend a January 30, 2014 CRASH MSC at the Mosk Courthouse. (Id. ¶ 4, Exh. B.) Lead trial counsel were required to attend the CRASH MSC unless the court excused personal attendance for good cause. (Ibid.) The order required that the parties lodge and serve Settlement Conference Statements at least five days before the CRASH MSC and that Mr. Reiner provide notice. (Ibid.)

Defendant did not receive notice from Plaintiff regarding the December 13, 2013 and January 3, 2014 orders. (Id. ¶¶ 3, 5.) The court and Defendants also did not receive any Settlement Conference Statement from Mr. Reiner. (Id. ¶¶ 5, 6.)

Judge Dunn presided over the January 30, 2014 CRASH MSC. In addition, two third-party mediators, defense counsel (Gary S. Balekjian and Michael J. Hui), Defendant Ibrahim Aly, and Chief Counsel for the DDS, Hiren M. Patel, attended. (Id. ¶ 6.) After being more than two hours late, Plaintiff finally arrived, but his counsel, Mr. Reiner, did not appear. (Id. ¶ 7.) Instead, Mark Sayed, who is not counsel of record, specially appeared for Mr. Reiner. (Ibid.) Mr. Sayed did not represent that he would be lead trial counsel. (Ibid.) Mr. Sayed was not familiar with the law, facts, or past settlement negotiations of this matter. (Id. ¶ 9.) Mr. Sayed also did not have full settlement authority as his settlement authority was $100,000, while Plaintiff wanted $300,000 to settle this matter. (Ibid.) Accordingly, Judge Dunn terminated the CRASH MSC. (Id. ¶ 10.) Neither the court nor the defense knew that Mr. Reiner would not personally appear. (Id. ¶ 8.)

PLAINTIFF’S OPPOSITION:

Plaintiff’s counsel, in opposition, contends that the motion is non-meritorious because there was no violation of a court order without good cause. Specifically, Mr. Reiner explains:

This case was scheduled to proceed to trial on October 1, 2013. On that date the court was engaged in trial on another matter. In seeking to reset the case, it was proposed that it be reset for mid-January 2014. Plaintiff’s counsel notified the court and opposing counsel that that he would be out of the country on a pre-arranged vacation in the last two weeks of January 2014, continuing into the first week of February. Thus, the trial was reset for mid-February 2014. A few days later, defense counsel appeared on an ex parte basis seeking to have the trial reset against because he was going to be out of the country on a vacation in mid-February 2014. He suggested that the case be reset for mid-January 2014, but Plaintiff’s counsel reminded defense counsel and the court that he was going to be out of the country the last two weeks of January 2014 into the first week of February 2014. Consequently, the case then was reset for trial for April 29, 2014.

On or about Friday, December 13, 2013, the court noticed by mail the referral of this case, as well as a similar notice for case number KC065654 (Ruiz v. Target), for the CRASH Settlement Program for dates to be selected by the court for the last week of January 2014. [Ruiz v. Target is not related in any way to the instant matter; Plaintiff’s counsel just happens to represent the plaintiffs in the two cases.] The court directed Plaintiff’s counsel to give notice of the referral, and to file a proof of service by Friday, December 20, 2013. Given the slow pace of mail delivery due to the crush of holiday season mail, Plaintiff’s counsel did not receive and read the December 13, 2013 directive until the afternoon of December 20, 2013, when compliance within that short deadline was not then possible. However, the December 13, 2013 notice already included notice to opposing counsel.

Because this case and the Ruiz v. Target matter were then unilaterally set for a Settlement Conference for January 30, 2014, and because opposing counsel in the Ruiz v. Target case was also going to be out of state at the time of the conference, that opposing counsel in Ruiz v. Target and Plaintiff’s counsel obtained the court’s permission to be excused from having to appear at the CRASH Settlement Conference. (Opposition, Exh. 2.) But since opposing counsel in this matter was going to be available to appear, as a good faith effort to see if this case could settle, Plaintiff’s counsel had attorney Mark Sayed appear with the client to explore settlement possibilities.

REPLY:

Counsel for Defendants represents that Plaintiff’s CRASH Settlement Conference Statement attached to the opposition was neither lodged with the court nor received by counsel for Defendants, and notes that Mr. Reiner was clearly aware of the proper procedure for seeking to be excused from the MSC since he had successfully accomplished that in the Ruiz action.

COURT’S FINDINGS:

Mr. Reiner fails to explain why he failed to give notice of the December 13, 2013 and January 3, 2014 orders. Mr. Reiner concedes he received the December 13, 2013 notice on December 20, 2013, and that his preplanned vacation was in the last two weeks of January 2014, continuing into the first week of February. It is unclear why he did not, or could not, serve the notices as ordered before he left on his vacation.

Moreover, the December 13, 2013 notice stated that “[a]ttendance of all persons required by Rule 3.1380(b) [i.e., trial counsel] is mandated unless a motion or ex parte application in writing is granted excusing personal attendance for good cause shown.” (See December 13, 2013 Notice.) The fact that Plaintiff’s trial counsel was excused from appearing in ANOTHER matter, Ruiz v. Target, Case No. KC065654, pursuant to an ex parte application and order, does not mean he was excused from making a personal appearance in this matter. Plaintiff’s counsel fails to adequately explain why he did not take similar steps to seek an order excusing his personal attendance in this matter, or to take the MSC off calendar altogether. Counsel for Plaintiff does not dispute that counsel who did appear, Mark Sayed, is not counsel of record and/or lead trial counsel, that attorney Sayed was not familiar with the facts and/or past settlement negotiations of this matter, and/or that attorney Sayed did not have full settlement authority as his settlement authority was $100,000.00. Accordingly, the motion is granted.

ATTORNEYS’ FEES:

Defendant requests that the court sanction Mr. Reiner $6,205.00 representing the attorneys’ fees it incurred because he failed to attend the CRASH MSC. The attorneys’ fees are documented by detailed time records maintained in a time recording system known as ProLaw. (Balekjian Decl. ¶¶ 11-13; Hui Decl. ¶ 2.) The current rate of the Attorney General’s Office (attorneys at $170.00 per hour) is far below the reasonable prevailing market rates for comparable legal services in the private sector. The Office of Attorney General billed Defendant for 20.25 hours for Mr. Balekjian, and 11.25 hours for Mr. Hu’s time, associated with preparing for and appearing the CRASH MSC. (Balekijian Decl. ¶¶ 12-13, Exh. C; Hui Decl. ¶ 3, Exh. D.) It is anticipated that an additional five hours will be required to prepare reply briefing and appear at the hearing of this motion. (Balekijian Decl. ¶ 12; Hui Decl. ¶ 3.)

The hourly rate and the time spent by counsel for Defendant appear to be reasonable. Thus, counsel for Plaintiff, Martin Reiner, is ordered to pay counsel for Defendant $6,205.00 as monetary sanctions within 20 days pursuant to California Rule of Court 2.30(b) and (d). In light of this, the court will forgo the imposition of sanctions payable to the court pursuant to CCP § 177.5.