RG Abrams Ins. v. Law Offices of C.R. Abrams
RG Abrams Ins. v. Law Offices of C.R. Abrams
2021 WL 4974049 (C.D. Cal. 2021)
August 19, 2021
Audero, Maria A., United States Magistrate Judge
Summary
The plaintiff filed a motion for sanctions against the defendants for failing to comply with discovery requests and attend their depositions. The court granted the motion and awarded the plaintiff reasonable expenses, including attorneys' fees, for the defendants' failure to comply with discovery obligations.
Additional Decisions
RG ABRAMS INSURANCE, and ROBIN GOLTSMAN, Plaintiffs,
v.
THE LAW OFFICES OF C.R. ABRAMS et al., Defendants.
AND RELATED CROSS-ACTIONS
v.
THE LAW OFFICES OF C.R. ABRAMS et al., Defendants.
AND RELATED CROSS-ACTIONS
Case No. 2:21-cv-00194-FLA-MAAx
United States District Court, C.D. California
Filed August 19, 2021
Counsel
Alden J. Parker, Fisher and Phillips LLP, Sacramento, CA, Drew M. Tate, Fisher and Phillips LLP, Los Angeles, CA, Michael A. Slater, Patricia L. Peden, Burke Williams and Sorensen LLP, Oakland, CA, for Plaintiffs RG Abrams Insurance, Robin Goltsman.Timothy J. Donahue, Law Offices of Timothy Donahue, Orange, CA, for Defendants Christopher R. Abrams, Rinelli Law Group, Sarah Rinelli, Jack R. Mills, Robin Armstrong, Cynthia Wooten, The Law Offices of C.R. Abrams, P.C.
Audero, Maria A., United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S RULE 37 MOTION FOR MONETARY SANCTIONS AND AN ORDER COMPELLING DEFENDANTS' DEPOSITION ATTENDANCE (ECF NO. 176)
I. INTRODUCTION
*1 Before the Court is Plaintiff Robin Goltsman's Rule 37 Motion for Monetary Sanctions and an Order Compelling Defendants' Deposition Attendance (“Motion”). (ECF No. 176.) The Motion was filed jointly by Plaintiff Robin Goltsman (“Plaintiff”) and Defendants Christopher Abrams (“Defendant Abrams”), Sarah Rinelli (“Defendant Rinelli”), and Jack R. Mills (“Defendant Mills”), (collectively “Defendants”), in the form of a Joint Stipulation as required by Central District of California Local Civil Rule [1] 37-2.
Through the Motion, Plaintiff seeks the following: (1) an order compelling Defendants to provide, by September 3, 2021, their availability between September 7, 2021 and September 30, 2021 for their respective depositions and compelling Defendants to attend their respective depositions (Mot. 10–11[2]); and (2) an award of attorneys' fees in the amount of $5,110.00 (id. at 12–15). In support of her requests, Plaintiff filed the Declaration of Michael A. Slater (“Slater Declaration”) (Slater Decl., ECF No. 176-1, at 1–5), and its accompanying Exhibits 1 through 11 (Pl.'s Ex. 1 (ECF No. 176-1 at 6–9); Ex. 2 (id. at 10–13); Ex. 3 (id. at 14–17); Ex. 4 (id. at 18–22); Ex. 5 (id. at 23–27); Ex. 6 (id. at 28–32); Ex. 7 (id. at 33–35); Ex. 8 (id. at 36–40); Ex. 9 (id. at 41–42); Ex. 10 (id. at 43–44); Ex. 11 (id. at 45–46).
On August 12, 2021, in response to a Minute Order from this Court identifying certain deficiencies in Plaintiff's Exhibits (see ECF No. 185), Plaintiff filed an Amended Declaration of Michael A. Slater (“Amended Slater Declaration”) (Am. Slater Decl., ECF No. 186, at 1–5), and its accompanying Exhibits 1 through 14 (Pl.'s Ex. 1 (ECF No. 186 at 6–9); Ex. 2 (id. at 10–13); Ex. 3 (id. at 14–17); Ex. 4 (id. at 18–22); Ex. 5 (id. at 23–27); Ex. 6 (id. at 28–32); Ex. 7 (id. at 33–35); Ex. 8 (id. at 36–40); Ex. 9 (id. at 41–42); Ex. 10 (id. at 43–44); Ex. 11 (id. at 45–46); Ex. 12 (id. at 47–54); Ex. 13 (id. at 55–61); Ex. 14 (id. at 61–65).[3]
Defendants oppose the Motion and seek attorneys' fees in an unspecified amount. (Mot. 5–7, 8–10, 11–12, 14–15.) In support of their position, Defendants filed the Declaration of Timothy Donahue (“Donahue Declaration”) (Donahue Decl., ECF No. 176-1, at 1–3), and its accompanying Exhibits 1 through 2 (Defs.' Ex. 1 (ECF No. 176-1 at 4–9); Ex. 2 (id. at 10–11). Through the Donahue Declaration, Defendants specify that they seek the amount of $3,562.50 in attorneys' fees. (Donahue Decl. ¶ 6.)
Having read and considered the papers by the parties, the Court finds the Motion suitable for disposition without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Accordingly, the hearing set for August 31, 2021 is hereby VACATED and taken off calendar. For the reasons set forth below, Plaintiff's Motion is GRANTED.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff's Allegations
*2 This case is proceeding on the basis of Plaintiff's Complaint, filed February 20, 2020 in the U.S. District Court for the Northern District of California (“Complaint”). (Compl., ECF No. 1.) The case was transferred to the Central District of California on January 12, 2021. (Id.) The allegations of the Complaint are presented in great detail in the December 28, 2020 Order of Magistrate Judge Robert M. Illman (ECF No. 70) and, because of their length, need not be repeated here. Stated simply, Plaintiff alleges she employed the Defendants in her trust and estates business around the year 2000.[4] (Compl. 6–7.) In or around 2010, Plaintiff and Defendant Abrams restructured the business into two separate concerns—RG Abrams Insurance and the C.R. Abrams Law Firm. (Id. at 7.) In 2016, Plaintiff and Defendant Abrams restructured the business which, by 2019, proved to be a less than harmonious arrangement. (Id. at 8–9.) Plaintiff, along with two of the Defendants, started a separate business of pre-paid legal services without Defendant Abrams. (Id.) While Plaintiff was out of town in December 2019, Defendant Abrams and two other Defendants whom Plaintiff believed were working for her, took Plaintiff's client database, her marketing software, and her computer in order to start their own business. (Id. at 10.) On this basis, Plaintiff brings claims of violation of the Computer Fraud and Abuse Act (18 U.S.C. § 1030(g), and a number of related state law claims. (Id. at 1.)
B. The Discovery Dispute
As relevant to the instant dispute,[5] on July 16, 2021, Plaintiff noticed Defendants' depositions as follows: Defendant Rinelli's deposition was noticed for July 27, 2021 (Pl.'s Ex. 1); Defendant Mills's Deposition was noticed for July 28, 2021 (Pl.'s Ex. 2); and Defendant Abrams's deposition was noticed for July 29, 2021 (Pl.'s Ex. 3). The deposition notices did not include requests for production of documents. (See Pl.'s Exs. 1–3.) Plaintiff additionally noticed the depositions of Robin Armstrong (August 4, 2021) and Cynthia Wooten (August 5, 2021) (see Am. Slater Decl. ¶ 3); however, those depositions are not at issue in the instant Motion.
On July 21, 2021, Defendant Rinelli served a document entitled “Objection to Deposition,” in which she objected to Plaintiff's noticing of her deposition for July 27, 2021 while Plaintiff's July 12, 2021 Motion to Compel Defendants' deposition attendance remained pending before the Court, and further asserted that her notice of deposition was “improper, vague, ambiguous[,] and overbroad,” and was “designed to harass and was unilaterally noticed.” (Pl.'s Ex. 4; see also Am. Slater Decl. ¶ 4.) Defendant Rinelli also argued that “the [C]ourt lacks jurisdiction and a motion to dismiss was scheduled for July 2[,] 2021, now re:set [sic] by the [C]ourt.” (Pl.'s Ex. 4.) Although Defendant Rinelli asserted that Plaintiff had noticed the deposition for a “unilaterally selected date for which defendants and/or their counsel are not available,” she did not provide any details regarding her unavailability on July 27, 2021. (Id.)
On July 23, 2021, Defendant Mills served a document entitled “Objection to Deposition,” in which he raised identical arguments as Defendant Rinelli in objection to his July 28, 2021 deposition. (See Pl.'s Ex. 5; see also Am. Slater Decl. ¶ 5.) Although Defendant Mills asserted that Plaintiff had noticed the deposition for a “unilaterally selected date for which defendants and/or their counsel are not available,” he did not provide any details regarding his unavailability on July 28, 2021. (Pl.'s Ex. 5.)
On July 23, 2021, Defendant Abrams served a document entitled “Objection to Deposition,” in which he raised identical arguments as Defendants Rinelli and Mills in objection to his July 29, 2021 deposition. (See Pl.'s Ex. 6; see also Am. Slater Decl. ¶ 6.) Although Defendant Abrams asserted that Plaintiff had noticed the deposition for a “unilaterally selected date for which defendants and/or their counsel are not available,” he did not provide any details regarding his unavailability on July 29, 2021. (Pl.'s Ex. 6.)
*3 On July 21, 2021, Plaintiff's counsel sent an email to Defendants' counsel asking whether Defendants intended to appear for their re-noticed depositions on July 27, 28, and 29. (Pl.'s Ex. 7 at 35.) Later the same day, Plaintiff's counsel sent a second email to Defendants' counsel, stating as follows:
I am in receipt of your client's “objection to deposition,” served today (7/21) after I sent you my email below. Why you do not respond to my emails is not just frustrating and unprofessional, it creates confusion and ambiguity which prejudices Plaintiffs. I interpret the attached objection to mean that all Defendants refuse to appear for their re-noticed depositions: Rinelli (7/27); Mills (7/28); Abrams (7/29); Armstrong (8/4); and Wooten (8/5). I anticipate you will later claim that I “cancelled” Defendants' re-noticed depositions—as you have already done disingenuously in connection with the original deposition notices. But that is not true. Let me be abundantly clear: I am not cancelling Defendants' depositions; Defendants are objecting to and refusing to attend their depositions.
(Id. at 34 (emphasis in original).)
On July 26, 2021, Plaintiff's counsel sent an email to Defendants' counsel providing the Zoom link and log-in information for Defendant Rinelli's deposition on July 27, 2021. (Pl.'s Ex. 9.)
On July 27, 2021, Plaintiff's counsel sent an email to Defendants' counsel providing the Zoom link and log-in information for Defendant Mills's deposition on July 28, 2021. (Pl.'s Ex. 10.)
On July 28, 2021, Plaintiff's counsel sent an email to Defendants' counsel providing the Zoom link and log-in information for Defendant Abrams's deposition on July 29, 2021. (Pl.'s Ex. 11.)
Plaintiff's counsel Michael Slater, Drew Tate, and Patricia Peden appeared to take the noticed depositions on July 27, 28, and 29. (See Pl.'s Exs. 12–14; see also Am. Slater Decl. ¶ 7.) However, Defendants and their counsel did not appear for any of the three depositions. (See Am. Slater Decl., ¶ 7.) Plaintiff's counsel obtained Affidavits of Non-Appearance and deposition transcripts evidencing the non-appearances. (See Pl.'s Exs. 12–14; see also Am. Slater Decl. ¶ 7.)
Although the parties exchanged meet-and-confer correspondence related to Defendants' objections and failure to appear for the noticed depositions, their disputes regarding same were not resolved. (See Pls.' Ex. 8; Defs.' Ex. 1.) This Motion followed.
III. ANALYSIS
A. Legal Standard for Depositions
Federal Rule of Civil Procedure [6] 26(b)(1) governs the scope of discovery in federal cases and provides that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. Fed. R. Civ. P. 26(b)(1). Rule 401 of the Federal Rules of Evidence provides that evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. But relevance alone does not justify discovery. As a general matter, Rule 26(b) is to be “liberally interpreted to permit wide-ranging discovery of information,” even if that information is not ultimately admitted at trial. Comcast of L.A., Inc. v. Top End Int'l, Inc., No. CV 03-2213-JFW(RCx), 2003 U.S. Dist. LEXIS 18640, at *6 (C.D. Cal. July 2, 2003).
*4 In addition to relevance, Rule 26(b)(1) requires that the discovery be proportional to the needs of the case. Fed. R. Civ. 26(b)(1). Proportionality is determined by a consideration of the following factors: “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.
Further, the court “must limit the frequency or extent of discovery” pursuant to Rule 26(b)(2) if:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
Rule 30, which governs depositions by oral examination, provides that “[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).”[7] Fed. R. Civ. P. 30(a)(1). “A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address.” Fed. R. Civ. P. 30(b)(1). “No subpoena is needed. The only requirement is that the party be ‘served with proper notice’ of the deposition beforehand.” Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1222 (9th Cir. 2018) (quoting Fed. R. Civ. P. 37(d)(1)(A)(i)); see also Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir. 2010) (“If a person is a party, a simple notice of deposition is sufficient to compel attendance, while a non-party's attendance can be compelled only by subpoena.”).
B. The Court GRANTS Plaintiff's Motion to Compel Defendants' Deposition Attendance.
Plaintiff requests, pursuant to Rule 37(a), that the Court order Defendants to provide their availability for their respective depositions between September 7, 2021 and September 30, 2021, and to then attend their respective depositions. (Mot. 4–5, 10–11.)
1. Legal Standard for Motion to Compel Depositions
A requesting party that is dissatisfied with discovery responses made under the federal rules may move to compel further responses pursuant to Rule 37(a). Fed. R. Civ. P. 37(a). Under Rule 37(a)(3)(B)(i), a party may file such a motion if a “deponent fails to answer a question asked under Rule 30 or 31.” Fed. R. Civ. P. 30(a)(3)(B)(i). Although Rule 37(a)(3)(B)(i) generally is invoked when a deponent refuses to answer a particular question during a deposition, courts in this Circuit also have granted motions to compel under Rule 37(a)(3)(B)(i) in cases where a deponent failed to attend a noticed deposition. See Sali, 884 F.3d at 1222 (“As we have recognized, Rule 37(a) encompasses an order to attend a deposition.” (citing SEC v. Seaboard Corp., 666 F.2d 414, 416 (9th Cir. 1982))). Moreover, although this provision more commonly is used to compel the deposition attendance of non-party deponents, courts also have granted motions to compel a party's deposition under Rule 37(a). See, e.g., Nationstar Mortg. LLC v. Flamingo Trails No. 7 Landscape Maint. Ass'n, 13 F.R.D. 327, 331–34 (D. Nev. 2016) (granting motion to compel Rule 30(b)(6) deposition); Erichsen v. County of Orange, No. CV 14-2357 JAK (SS), 2016 U.S. Dist. LEXIS 186304, at *12–23 (C.D. Cal. Mar. 31, 2016) (granting motion to compel plaintiffs' deposition attendance and Rule 37(d) motion for sanctions based on plaintiffs' failure to appear for noticed depositions); Nilon v. Natural-Immunogenics Corp., No: 3:12-cv-00930-LAB (BGS), 2014 U.S. Dist. LEXIS 105610, at *7–13 (S.D. Cal. July 31, 2014) (granting Rule 37(a) motion to compel plaintiff's deposition attendance and Rule 37(d) motion for sanctions based on plaintiff's failure to appear for noticed deposition); Hart v. P.A.E. Gov't Servs., No. CIV S-10-1672 KJM EFB PS, 2011 U.S. Dist. LEXIS 69342, at *5–8 (E.D. Cal. June 28, 2011) (granting Rule 37(a) motion to compel plaintiff's deposition and Rule 37(d) motion for sanctions based on plaintiff's failure to appear for noticed deposition).
*5 A motion to compel pursuant to Rule 37(a) “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). This Court's Local Rules also require counsel to meet and confer before bringing a discovery motion. C.D. Cal. L.R. 37-1.
2. Analysis
Plaintiff is entitled to take Defendants' depositions pursuant to Rule 30(a)(1). See Fed. R. Civ. P. 30(a)(1). Plaintiff has established that Defendants failed to appear for their noticed depositions by providing the Court with Affidavits of Non-Appearance and deposition transcripts from July 27, July 28, and July 29, 2021, which reflect that Plaintiff's counsel appeared on the record at each of Defendants' scheduled depositions and noted each Defendants' failure to appear. (Pl.'s Exs. 12–14.)
Plaintiff also has established that she, in good faith, conferred with Defendants in an effort to obtain Defendants' deposition attendance. Specifically, this Court's July 30, 2021 Order found that Plaintiff satisfied her pre-filing meet-and-confer obligations. (See July 30, 2021 Order, ECF No. 171, at 2.)
The Court has considered Defendants' arguments in opposition to the Motion and finds each unavailing. First, Defendants argue that Plaintiff has failed to meet her burden because she “has shown no factual basis and no legal basis for the relief sought,” asserting that the legal authorities Plaintiff cites “are distinguishable and do not apply to these facts.” (Mot. 7–8.) However, as explained above, the Court finds that Plaintiff has met her factual burden to show that Defendants failed to attend their noticed depositions on July 27, July 28, and July 29, 2021, and that Plaintiff therefore is entitled to an order compelling Defendants' future deposition attendance. In addition, despite Defendants' conclusory argument, they fail to explain how Plaintiff's authorities are distinguishable or otherwise offer contrary authorities. Accordingly, the Court concludes this argument lacks merit.
Defendants next argue that Plaintiff's “unilateral scheduling of depositions, knowing that the attorneys are not available, is not proper notice.” (Mot. 5, 8.) However, Rule 30 requires only the following: “A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address.” Fed. R. Civ. P. 30(b)(1). With respect to notice, courts in this Circuit have found that “a week to ten day notice is reasonable where the party is seeking a deposition without the production of documents.” Reddy v. Precyse Solutions LLC, No. 1:12-cv-02061-AWI-SAB, 2015 U.S. Dist. LEXIS 67887, at *8 (E.D. Cal. May 26, 2015) (listing cases). Here, Plaintiff's notices of deposition named the Defendant sought to be deposed, stated the date and time of each deposition, provided that the depositions would proceed via the Zoom videoconferencing platform, and were addressed to Defendants' counsel of record. (Pl.'s Exs. 1–3.) Plaintiff provided eleven days' notice to Defendant Rinelli, twelve days' notice to Defendant Mills, and thirteen days' notice to Defendant Abrams. Defendants do not cite any legal authority to support their argument that Plaintiff's “unilateral scheduling” of depositions rendered the notices invalid (see generally Mot.), and the Court is aware of none. See Comcast, 2003 U.S. Dist. LEXIS 18640, at *6 (“The party who resists discovery has the burden to show discovery should not be allowed,” as well as “the burden of clarifying, explaining, and supporting its objections.” (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975))). And Defendants have not provided any factual support or explanation for their contention that they or their counsel were unavailable for depositions on July 27, 28, and 29, 2021, or any evidence that they notified Plaintiffs of such unavailability or that Plaintiffs otherwise were aware of it. (See generally Mot.; see also Pl.'s Exs. 4–6.) On this basis, the Court concludes this argument also is without merit.
*6 Next, Defendants appear to argue that Plaintiff canceled the scheduled depositions. (Mot. 8–9.) However, it is clear that Plaintiff did not cancel the July 27, 28, or 29 depositions at issue. First, Plaintiff expressly stated in an email days before the depositions were to go forward that she was not cancelling the depositions. (Pl.'s Ex. 7 at 34.) Second, Plaintiff emailed each Defendant the day before his or her deposition was scheduled, providing the Zoom link for the following morning's deposition. (See Pl.'s Exs. 9–11.) Finally, Plaintiff's counsel appeared at the depositions and obtained deposition transcripts and Affidavits of Non-Appearance for each of these dates noting Defendants' respective failures to appear. (See Pl.'s Exs. 12–14.) The fact that Plaintiff later canceled the depositions of Defendants Cynthia Wooten and Robin Armstrong (see Mot. 10; Defs.' Ex. 1, ECF No. 176-2, at 9), has no bearing on the instant Motion because those depositions are not at issue. Accordingly, the Court concludes this argument is without merit.
Next, Defendants argue that they have a “right to object” to their depositions and that their objections pointed out “numerous deficiencies.” (Mot. 9.) However, as Plaintiff correctly argues (Mot. 7–8), Defendants' service of objections was not sufficient to excuse their deposition attendance because Defendants failed to file a Rule 26(c) motion for a protective order. See Fed. R. Civ. P. 37(d)(2) (providing that a party's failure to appear at a deposition “is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c)”); Koninklijke Phillips Elecs. N.V. v. KXD Tech., Inc., No. 2:05-cv-01532-RLH-GWF, 2007 U.S. Dist. LEXIS 100969, at *49 (D. Nev. Oct. 2, 2007) (“[I]f the noticing party refuses to reschedule a properly noticed deposition, it is incumbent on the party whose deposition is noticed to move for a protective order.”); see also Finlander v. L.A. Unified Sch. Dist., No. CV 05-6847 PA (Ex), 2007 U.S. Dist. LEXIS 117580, at *53–54 (C.D. Cal. Mar. 19, 2007) (“Failure to seek a protective order is evidence that the party failing to respond to discovery requests has ‘engaged in a calculated course of conduct.’ ” (quoting Commodity Futures Trading Comm'n v. Noble Metals Int'l, Inc., 67 F.3d 766, 771 (9th Cir. 1995))). On this basis, the Court concludes that this argument is without merit.
On the basis of the foregoing, the Court finds that Plaintiff is entitled to an order compelling Defendants to provide their availability for depositions and thereafter attend their depositions, and GRANTS this request pursuant to Rule 37(a).
C. The Court GRANTS Plaintiff's Rule 37(a)(5)(A) Request for Reasonable Expenses Incurred in the Bringing of the Motion.
Plaintiff also moves for her reasonable expenses incurred in the bringing of her motion to compel pursuant to Rule 37(a)(5)(A). (Mot. 12.)
1. Legal Standard for Granting Reasonable Expenses under Rule 37(a)(5)(A)
Pursuant to Rule 37(a)(5)(A), if a discovery motion is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). However, Rule 37(a)(5)(A) also provides that “the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id. The party contesting the discovery sanction under Rule 37 bears the burden of establishing substantial justification or that other circumstances make an award of expenses unjust. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994).
2. Analysis
a. Defendants Have Had an Opportunity to Be Heard on Plaintiff's Request for Reasonable Expenses.
*7 With respect to the required “opportunity to be heard” before Rule 37(a) sanctions are awarded, the Ninth Circuit has made clear that “the opportunity to submit briefs” satisfies the “opportunity to be heard” requirement. Paladin Assocs. v. Montana Power Co., 328 F.3d 1145, 1164–65 (9th Cir. 2003) (holding that, because the Rule 37 sanctions issues to be resolved were such that an evidentiary hearing would not have aided the decisionmaking process, district court did not abuse its discretion by ruling on the briefing); see also Pac. Harbor Cap., Inc. v. Carnival Airlines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or evidentiary hearing on the issue.” (citations omitted)); Lynch v. Cassavetes, 2014 U.S. Dist. LEXIS 195015, at *10 (C.D. Cal. Oct. 1, 2014) (finding that an opportunity to be heard is satisfied by an opportunity to respond in writing).
Applying the above framework, the Court concludes that neither oral argument nor an evidentiary hearing would be of assistance in determining whether to award sanctions or the amount of attorneys' fees to be awarded under Rule 37(a)(5)(C). Defendants received notice of Plaintiff's request for attorneys' fees when Plaintiff provided them with her portion of the joint stipulation so that they could include their responsive arguments. See C.D. Cal. L.R. 37-2.2. And, indeed, Defendants responded to Plaintiff's argument, albeit by arguing only that Defendants are entitled to recover attorneys' fees, rather than Plaintiff. (Mot. 11–12.) Thus, holding a hearing to have the parties' counsel restate what already is in the Motion and in their under-oath declarations would be a waste of time and resources. The Court finds that it has sufficient evidence of the facts it needs to make a determination regarding the amount of attorneys' fees to be awarded here.
In any event, in an effort to streamline the discovery dispute resolution process, the parties have waived their right to an opportunity to be heard before sanctions are awarded. (ECF No. 115, at 3 (“The parties waive their rights under Rule 37(a)(5) to an opportunity to be heard where a discovery motion seeks reasonable expenses, including attorneys' fees, and, unless otherwise ordered by the Court, will submit to the Court's ruling on the papers as filed.”).)
On this basis, the Court makes its ruling without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
b. Plaintiff is Entitled to Her Reasonable Expenses Because None of the Three Exceptions to Rule 37(a)(5)(A) Apply.
Before awarding reasonable expenses under Rule 37(a)(5)(A), the Court must determine whether any of the three exceptions to the rule apply. Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii).
The first exception—that the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action—does not apply in this case because, as discussed above, the Court has determined that Plaintiff satisfied her pre-filing meet-and-confer obligations. (See July 30, 2021 Order, ECF No. 171, at 2.)
The second exception—that the opposing party's response or objection was substantially justified—does not apply because Defendants' discovery positions were not substantially justified. Both the Ninth Circuit and the Supreme Court have offered guidance regarding the standard for establishing “substantial justification” sufficient to avoid a discovery sanction. In Hyde, the Ninth Circuit stated that “a good faith dispute concerning a discovery question might, in the proper case, constitute ‘substantial justification ....’ ” Hyde, 24 F.3d at 1171 (citation omitted). The Supreme Court has explained that the standard is “satisfied if there is a ‘genuine dispute’... or ‘if reasonable people could differ as to the appropriateness of the contested action.’ ” Pierce v. Underwood, 487 U.S. 552, 565 (1998) (citations and alterations omitted).
In the Motion, Defendants do not clarify their objections to their Rule 30 depositions or cite any legal authority in support of such objections. Moreover, Defendants failed to move for a protective order—as required to excuse their deposition attendance—and provide no explanation for this failure. Thus, the Court is unable to conclude that Defendants' failure to appear at their noticed depositions was substantially justified, as required to satisfy the exception here.
The third exception—that other circumstances make an award of expenses unjust—also does not apply. Defendants do not argue that other circumstances would make an award of expenses unjust. (See generally Mot.) And the Court can find no evidence of such a circumstance.
For these reasons, the Court concludes that Plaintiff is entitled to the reasonable expenses, including attorneys' fees, she expended in the bringing of the Motion, and therefore GRANTS this Request.
D. The Court GRANTS Plaintiff's Motion for Reasonable Expenses Pursuant to Rule 37(d)(3).
Pursuant to Rule 37(d)(3), Plaintiff additionally requests monetary sanctions in the form of her reasonable expenses caused by Defendants' failure to appear for their noticed depositions. (Mot. 2, 11, 12–14.)
1. Legal Standard for Rule 37(d)(3) Sanctions
Pursuant to Rule 37(d), the Court may grant a motion for sanctions if “a party ... fails, after being served with proper notice, to appear for that person's deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i); see also Sali, 884 F.3d at 1222 (Rule 37(d) “explicitly authorizes the court to sanction parties for failing to attend their own depositions.”). Sanctions for a party's failure to appear at a deposition “may include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).” Fed. R. Civ. P. 37(d)(3).[8] Rule 37(d)(3) further provides as follows:
Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
Under Rule 37(d), “[a] motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.” Fed. R. Civ. P. 37(d)(1)(B). However, courts in this Circuit have declined to apply the Rule 37(d) certification requirement to motions for sanctions based on a party's failure to attend a deposition. See Nationstar Mortg. LLC, 13 F.R.D. at 335; Bedwell v. Fish & Richardson, P.C., No. 07cv65 WQH (JMA), 2009 U.S. Dist. LEXIS 147323, at *14–15 (S.D. Cal. June 22, 2009). Nevertheless, as noted above, this Court's Local Rules require counsel to meet and confer before bringing a Rule 37 motion, including a motion for sanctions under Rule 37(d). C.D. Cal. L.R. 37-1; see Darbeevision, Inc. v. C&A Mktg., No. CV 18-0725 AG (SSx), 2019 U.S. Dist. LEXIS 134914, at *13–14 (C.D. Cal. Jan. 28, 2019) (holding that regardless of whether Rule 37(d) requires a certification regarding meet-and-confer efforts, Local Rule 37-1's pre-filing meet-and-confer requirement applies to Rule 37(d) motions for sanctions based on a party's failure to attend a deposition).
2. Analysis
a. Plaintiff has Established that Rule 37(d) Sanctions are Appropriate Because Defendants Failed to Appear for Their Noticed Depositions.
*9 As discussed above, Plaintiff has established that Defendants failed to appear for their noticed depositions on July 27, July 28, and July 29, 2021. (Pl.'s Exs. 12–14.) And Plaintiff also has satisfied her pre-filing meet-and-confer obligations, as this Court ruled in its July 30, 2021 Order. (See July 30, 2021 Order at 2.) Defendants' arguments that they were not required to attend their depositions lack merit for the reasons discussed supra in Section III.B.2.
b. Plaintiff is Entitled to Her Reasonable Expenses Because Neither of the Two Exceptions to Rule 37(d)(3) Apply.
Before awarding reasonable expenses under Rule 37(d)(3), the Court must determine whether either of the two exceptions to the rule apply. Fed. R. Civ. P. 37(d)(3). Here, neither exception applies.
The first exception—that the party's failure to appear was substantially justified—does not apply. As discussed supra in Section III.C.2.b, Defendants do not argue that their failure to appear for their depositions was substantially justified, and the Court finds that Defendants' failure to appear was not substantially justified for the reasons stated above, and in any event, Defendants failed to move for a protective order.
The second exception—that other circumstances make an award of expenses unjust—also does not apply. As discussed supra in Section III.C.2.b, Defendants do not argue that other circumstances would make an award of expenses unjust (see generally Mot.), and the Court can find no evidence of such a circumstance.
For these reasons, the Court finds that Plaintiff is entitled to her reasonable expenses, including attorneys' fees, under Rule 37(d)(3) and therefore GRANTS this request.
E. Plaintiff is Entitled to an Attorneys' Fees Award of $3,815.00.
Plaintiff asks the Court to award her the $3,500.00 in attorneys' fees she expended in the bringing of the Motion and the $1,610.00 she incurred in attempting to take Defendants' depositions—for a total attorneys' fees award of $5,110.00. (Mot. 11, 12–14.) For the reasons set forth below, the Court GRANTS Plaintiff's request IN PART and awards her the sum of $3,815.00.
1. Legal Standard for Awarding Attorneys' Fees
When an award of attorneys' fees is authorized, the court must calculate the proper amount of the award to ensure that it is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983). In the Ninth Circuit, the court must perform a two-step process to determine the reasonableness of any fee award. Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court determines the “lodestar figure.” See Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). “The ‘lodestar’ is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citation omitted). Second, where appropriate, the Court may adjust the lodestar amount based on several factors adopted by the Ninth Circuit in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), known as the Kerr factors:
(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.
*10 Kerr, 526 F.2d at 70.
A strong presumption exists “that the lodestar figure represents a reasonable fee.” Morales v. City of San Rafael, 96 F.3d 359, 363 n.8 (9th Cir. 1996). The Ninth Circuit has made clear that “[o]nly in rare instances should the lodestar figure be adjusted on the basis of other considerations.” Id. (citations omitted). “Under the lodestar approach, many of the Kerr factors have been subsumed as a matter of law.” Id. (citation omitted). Some of the Kerr factors that are subsumed within the initial lodestar calculation are “(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation,” “(4) the results obtained,” and “(5) the contingent nature of the fee agreement.” Id. at 364 n.9 (citations omitted). “Adjusting the lodestar on the basis of subsumed reasonableness factors after the lodestar has been calculated, instead of adjusting the reasonable hours or reasonable hourly rate at the first step ... is a disfavored procedure.” Id. (citation omitted).
The party seeking the award of fees must submit evidence to support the request. Van Gerwen v. Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). Specifically, the party must support the request with evidence regarding the “number of hours worked and the rates claimed.” Id. The party opposing the fee request bears the “burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in submitted affidavits.” Common Cause v. Jones, 235 F.Supp.2d 1076, 1079 (C.D. Cal. 2002) (quoting Gates, 987 F.2d at 1397).
Plaintiff requests $3,500.00 in attorneys' fees incurred in connection with the filing of the Motion based upon the following lodestar calculation: 10.0 hours spent by Plaintiff's counsel, a fourth-year associate at Burke, Williams & Sorensen, LLP, at an hourly rate of $350.00. (Mot. 13; see also Am. Slater Decl. ¶ 13.) Further, Plaintiff requests $1,610.00 incurred in connection with Plaintiff's attempt to take Defendants' depositions based upon a lodestar calculation of 4.6 hours spent at the same $350.00 hourly rate. (Mot. 13–14; see also Am. Slater Decl. ¶ 14.) Thus, Plaintiff requests a total attorneys' fees award of $5,110.00 based upon a combined lodestar calculation of 14.6 hours spent at the $350.00 hourly rate. (Mot. 14; see also Am. Slater Decl. ¶ 15.) Defendants challenge neither the requested hourly rate nor the hours spent in bringing the Motion. (See generally Mot.) Nevertheless, the Court conducts an independent review of both to ensure that the lodestar requested is appropriate. For the reasons stated below, the Court awards Plaintiff the sum of $3,815.00 in reasonable expenses expended in the bringing of the Motion and in attending the missed depositions.
2. Analysis
a. The Hours Billed by Plaintiff in Bringing the Motion Are Reasonable and Comparable to Others Approved In this District.
*11 Plaintiff requests attorneys' fees for 10.0 hours of work spent in preparing the instant Motion. (Mot. 13.) In support of this request, Plaintiff's counsel, Michael Slater, provided an itemized list of tasks he completed in preparing the Motion and the time spent on each task. (Am. Slater Decl. ¶ 13.) The Court finds that Plaintiff's description of work performed and time spent on each item is reasonable and adequately supported. Moreover, Plaintiff's documented 10.0 hours spent working on the Motion fall well short of those awarded in this district. See, e.g., Nguyen v. Regents of the Univ. of Cal., No. 8:17-cv-00423-JVS-KESx, 2018 U.S. Dist. LEXIS 226622, at *10–11 (C.D. Cal. May 18, 2018) (approving 36.1 hours for the preparation of a joint stipulation); Dish Network L.L.C. v. Jadoo TV, Inc., No. 2:18-cv-9768-FMO (KSx), 2019 U.S. Dist. LEXIS 221869, at *18 (C.D. Cal. Nov. 8, 2019) (approving 32 hours for the preparation of a discovery motion). Accordingly, the Court will award attorneys' fees for the requested 10.0 hours of time spent preparing the Motion.
b. The Court Will Award 0.9 Hours of Attorneys' Fees Plaintiff Incurred in Connection with the Missed Depositions.
In addition to her attorneys' fees spent in the bringing of the Motion, Plaintiff seeks attorneys' fees incurred in preparing for and attending Defendants' missed depositions pursuant to Rule 37(d)(3). (Mot. 12–13.) Plaintiff argues that these fees were “needlessly incurred and ‘caused by the failure’ of Defendants to attend their depositions.” (Mot. 13 (quoting Fed. R. Civ. P. 37(d)(3)).) Plaintiff seeks attorneys' fees for 4.6 hours of work, which includes 3.7 hours of reviewing and analyzing each Defendant's discovery responses and other case materials in preparation for the depositions and 0.9 hours spent attending the depositions. (Am. Slater Decl. ¶ 14.)
Under Rule 37(d)(3), a court may award reasonable attorneys' fees “caused by the failure” of a party to appear for a noticed deposition. Fed. R. Civ. P. 37(d)(3)). Courts have awarded attorneys' fees under this provision for time counsel spent preparing for and attending the missed deposition, as well as fees incurred in the bringing of a motion for sanctions. See, e.g., Garcia v. Macy's West Stores, Inc., No. 16-cv-04440-WHO, 2017 U.S. Dist. LEXIS 192810, at *10–11 (N.D. Cal. Nov. 20, 2017) (awarding attorneys' fees for five hours of work spent preparing for a canceled deposition); Schiller v. Rite of Passage, Inc., No. 2:13-cv-0576-HRH, 2014 U.S. Dist. LEXIS 18918, at *9 (D. Ariz. Feb. 14, 2014) (“[A]ttorneys' fees incurred in preparing for and appearing at the missed deposition ... are recoverable under Rule 37(d)(3).”). However, in this case, the Court declines to award fees for the 3.7 hours of work Plaintiff's counsel performed reviewing Defendants' discovery responses and preparing for the depositions. Plaintiff has not explained why this preparation has been rendered unnecessary by Defendants' failure to attend their depositions (see generally Mot.; Am. Slater Decl.), as Plaintiff may—and most likely will—use this preparation when she deposes Defendants in the future. Accordingly, the Court will only award fees for the 0.9 hours Plaintiff's counsel spent attending Defendants' depositions.
c. The Hourly Rate Claimed by Plaintiff Is Reasonable and Commensurate with the Prevailing Rate.
Plaintiff claims an hourly rate of $350.00 for Mr. Slater. (Mot. 14; see also Am. Slater Decl. ¶ 12.) Defendants do not dispute the reasonableness of this rate. (See generally Mot.) In determining whether the hourly rate billed is reasonable for purposes of an attorneys' fees award, the Court must ensure that the requested rates “are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); accord Carson v. Billings Police Dep't, 470 F.3d 889, 891 (9th Cir. 2006) (noting that the party seeking fees must prove that the rate charged is in line with the “prevailing market rate of the relevant community.” (citation omitted)). The burden is on the fee applicant “to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community....” Camacho, 523 F.3d at 980 (citation omitted). For this purpose, “the relevant community is the forum in which the district court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). “[R]ates outside the forum may be used if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case.” Id. (quotation marks and citation omitted). Accordingly, the relevant community here is the Central District of California. In addition, the Court may rely on its own experience to determine a reasonable hourly rate. See Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). Finally, in exercising its discretion in setting a fee, the court must assess the “reasonableness of the fee in light of the totality of the circumstances.” Jordan v. Multonah County, 815 F.2d 1258, 1262 n.7 (9th Cir. 1987).
*12 Plaintiff's counsel does not attest to his background and experience. (See generally Am. Slater Decl.) Nor does Plaintiff offer a declaration of an attorneys' fees expert. (See generally Mot.) Instead, Plaintiff's counsel attests only to the fact that he is “an associate in [his] fourth year of law practice.” (Am. Slater Decl. ¶ 12.) Although the Court notes that Plaintiff's Motion is somewhat lacking in evidence supporting her counsel's fees, the Court takes judicial notice of its own docket and notes that Plaintiff's counsel's hourly rate previously was approved in this matter by the United States District Court for the Northern District of California in connection with two pre-transfer motions.[9] (ECF Nos. 69 at 2 (awarding Plaintiff $1,400.00 in attorneys' fees because of Defendants' unreasonable conduct), 71 at 6 n.4, 7 (awarding Plaintiff $5,250.00 in attorneys' fees because of Defendants' lack of cooperation in service of process under Rule 4(d)).) Plaintiff's counsel's hourly rate also was approved by this Court in three prior discovery motions. (ECF No. 128 at 33–34; ECF No. 134 at 43–44; ECF No. 146 at 36–37.) Finally, the Court notes that, according to the Wolters Kluwer 2020 Real Rate Report (Mid-Year Update) (“Real Rate Report”),[10] Plaintiff's counsel's hourly rate falls below the median billing rate of $565.00 per hour for associate attorneys of similar seniority in Los Angeles in the second quarter of 2020. (Real Rate Report 38.) With this, the Court is persuaded that an hourly rate of $350.00 for Plaintiff's counsel is appropriate here.
d. No Kerr Adjustment is Necessary.
The Court will award fees according to Plaintiff's lodestar of 10 hours of work on the Motion, plus 0.9 hours for fees incurred in connection with attending the missed depositions, multiplied by a $350.00 hourly rate, for a total award of $3,815.00. (Mot. 12–13; see also Slater Decl. ¶¶ 13–15.) Neither party requests an adjustment to the lodestar based on the Kerr factors. (See generally Mot.) Indeed, upon a review of the Kerr factors that are not already subsumed within the lodestar, the Court sees no reason to make such an adjustment. On this basis, the final fee award is $3,815.00.
F. The Court DENIES Defendants' Request for Attorneys' Fees Expended in Opposing the Motion in the Amount of $3,562.50.
Defendants ask the Court to award them the attorneys' fees they expended in opposing the Motion. (Mot. 11–12, 14–15.) Although Defendants do not specify an amount of fees requested in the Motion itself (see generally Mot.), defense counsel Timothy Donahue states in his declaration that Defendants seek $3,562.50, based on the following calculation: a lodestar of five hours of legal work multiplied by Mr. Donahue's hourly rate of $475.00, further enhanced by a “1.5 multiplier” for unspecified reasons (Donahue Decl. ¶ 6).
The Court may not award Defendants' attorneys' fees because they did not prevail in opposing Plaintiff's discovery motion. See Fed. R. Civ. P. 37(a)(5)(B) (providing for attorneys' fees for a party who successfully opposes a motion to compel). Accordingly, an order granting Defendants' reasonable expenses in opposing the Motion is not warranted and, as such, Defendants' request for an award of attorneys' fees is DENIED.
IV. CONCLUSION
For the reasons stated above, the Court ORDERS as follows:
1. Defendants shall provide Plaintiff with their available dates for depositions by no later than seven days after the date of this Order. Such dates must allow for the taking of the three depositions between September 7, 2021 and September 30, 2021.
*13 2. Defendants shall thereafter attend their depositions, each on a date as selected by Plaintiff among the available dates provided by Defendants, and at a time and location selected by Plaintiff.
3. Defendants shall pay to Plaintiff, jointly and severally, the sum of $3,815.00 as reasonable expenses pursuant to Rules 37(a)(5)(A) and 37(d)(3). This payment shall be made no later than thirty days after the date of this Order.
Footnotes
Unless otherwise stated, all further references to “Local Rules” shall be to the Central District of California Local Civil Rules.
Pinpoint citations of page numbers in the Order refer to the page numbers appearing in the ECF-generated headers of cited documents.
All further references to Plaintiff's Exhibits refer to the Exhibits attached to the Amended Slater Declaration.
The Court summarizes the allegations and claims in the Complaint. In doing so, the Court does not opine on the veracity or merit of Plaintiff's allegations and claims, nor does the Court make any findings of fact.
Plaintiff's prior efforts to obtain Defendants' deposition testimony are detailed in the Court's July 26, 2021 Order denying without prejudice Plaintiff's July 12, 2021 Motion and need not be repeated here. (See ECF No. 161 at 4–8.)
All further references to “Rule” are to the Federal Rules of Civil Procedure.
Neither party contends that the provisions of Rule 30(a)(2) apply here. (See generally Mot.)
Plaintiff does not seek the any of the sanctions available at Rule 37(b)(2)(A)(i)–(vi) (see generally Mot.); thus, this Order does not address such sanctions.
See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); Harris v. County of Orange, 682 F.3d 1126, 1131–32 (9th Cir. 2012) (court may take judicial notice of “documents on file in federal or state courts.”).
The Court gives due weight to information contained in the Real Rate Report, a publication that provides data-driven benchmarking for attorney hourly rates. See, e.g., Smith v. County of Riverside, No. EDCV 16-227 JGB (KKx), 2019 U.S. Dist. LEXIS 170421, at *5 (C.D. Cal. June 17, 2019) (“[A] number of district courts in California have relied on the Real Rate Report.”). The information provided by the Real Rate Report is persuasive because, rather than using self-reported rates aggregated across all practice areas throughout the country, as appear in other surveys, it reflects actual legal billing through paid and processed invoices disaggregated for location, experience, firm size, areas of expertise, industry, and practice areas. (See Real Rate Report 4.)