Defense ADA Counsel Deliberately Delays Case for Profit

United States District Court,

S.D. California.

Chris LANGER, Plaintiff,

v.

Scott McHALE; Linda Carpenter; and Does 1–10, Defendants.


Civil No. 13cv2721 CAB (NLS).

Signed Aug. 6, 2014.


ORDER:

(1) DETERMINING JOINT MOTION FOR RESOLUTION OF DISCOVERY DISPUTE;

(2) DENYING DEFENDANTS' MOTION TO COMPEL PLAINTIFF'S EXPERT TO CONDUCT HIS INSPECTION ACCORDING TO DEFENDANTS' METHODOLOGY; and

(3) SETTING AN ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED ON DEFENSE COUNSEL.

NITA L. STORMES, United States Magistrate Judge.

*1 Plaintiff Chris Langer filed this action under the Americans with Disabilities Act (ADA) and related California laws. He alleges that defendants Linda Carpenter, who owns and operates the store Urban Barn, and landlord Scott McHale, who owns the store property and leases it to Ms. Carpenter, did not maintain a handicap-accessible parking space in the parking lot for the store. Defendants filed a motion for partial summary judgment with the district judge, arguing there is no case or controversy to adjudicate.


Before this court is a discovery motion where Defendants seek to compel the Plaintiff's expert to use a certain methodology to conduct a site inspection on Plaintiff's behalf. Plaintiff intends to use the expert report on the site inspection in support of a substantive opposition to the summary judgment motion.


The court has reviewed all filings in this case, and for the following reasons, DENIES Defendants' motion to compel Plaintiff's expert to conduct his inspection according to Defendants' methodology, and sets an ORDER TO SHOW CAUSE why SANCTIONS should not be imposed on defense counsel.


Relevant Background.

After Defendants filed their summary judgment motion, they filed an answer and consequently, this court set an Early Neutral Evaluation (ENE). The ENE notice stayed formal discovery and ordered a personal meet and confer at the subject premises to discuss the alleged premise violations and damages, costs and attorney's fees. Defendants then filed a motion to continue the date of the personal meet and confer to June 25, 2014, the same day as Plaintiff's expert's site inspection, continue the hearing on the summary judgment motion to allow Plaintiff's counsel to incorporate the information from the inspection into his summary judgment opposition, and vacate the ENE pending a decision on the summary judgment motion. [Dkt. No. 20.] The court granted the ex parte motion in its entirety. [Dkt. No. 21.]


Then, on June 20, 2014, Defendants filed an 89–page “objection” to Plaintiff's site inspection set for June 25 that the Defendants admittedly expected and said they were amenable to. [Dkt. No. 20, p .2; Dkt. No. 23.] The court struck the objection from the docket for failure to follow the proper chambers procedures. [Dkt. No. 25.]


Defendants then unilaterally terminated the June 25 site inspection. Next, they filed an ex parte application asking that the site meeting be continued until either (1) an ENE is eventually rescheduled (if Plaintiff survives summary judgment); or (2) if the court orders the site inspection to occur—following resolution of a discovery dispute—that the counsel meeting occur at that time. [Dkt. No. 26.] Plaintiff filed an opposition, asking that the court either hold an ENE or direct the parties to hold their Rule 26(f) conference and open discovery.


On June 27, 2014, this court granted in part and denied in part Defendants' application to further modify the ENE order. [Dkt. No. 29.] That order constituted the third order addressing Defendants' and defense counsel's complaints about Plaintiff's proposed site inspection. To resolve the recurring dispute, the court ordered the following:


*2 • Granted Defendants' request to continue the meeting of counsel to take place at the same time as Plaintiff's site inspection.


• Granted Plaintiff's request and lifted the stay on formal discovery.


• Ordered counsel to meet and confer in person by July 7, 2014 to resolve their discovery dispute. The dispute concerns Defendants' objections to the methodology Plaintiff's expert proposes to use for the site inspection.


• If counsel could not resolve the dispute on their own, ordered them to file a joint discovery motion no longer than 10 pages and with no exhibits by July 11, 2014.


• Reminded counsel of their obligation to cooperate under Civil Local Rule 83.4 pursuant to the court's Code of Conduct.


June 27 Order [Dkt. No. 29].


Counsel met in person to confer on the discovery dispute on July 2, 2014. Plaintiff thought they resolved the issue because they signed a stipulation that if Plaintiff would find that a particular slope was not compliant and the slope measurement could be fairly taken with a 24 inch level, Plaintiff's expert would measure with the 24 inch level, as Defendants request. Because they apparently resolved the dispute, counsel did not file a joint discovery motion by the court-ordered deadline, July 11, 2014.


The site inspection was reset for July 16, the same day Plaintiff's opposition to the summary judgment motion was due. But Defendants unilaterally terminated the site inspection (for the second time), told Plaintiff that even though they signed a stipulation they had in fact not resolved the dispute, and demanded that this joint discovery motion be filed. The parties filed the joint motion on July 16—the same day the inspection was to take place—and five days after the court-ordered deadline.


On August 4, 2014, Judge Bencivengo granted Plaintiff's request to continue the hearing on the summary judgment motion. She said she would entertain a joint request to reschedule the hearing after this discovery dispute is resolved and any required discovery is completed. [Dkt. No. 33.]


Discussion.^FN1


FN1. While this court could strike the motion as untimely and deny Defendants' request on that basis, it will address the merits so as to further confirm the finality of this issue and address the issue of sanctions against defense counsel.


In this joint discovery motion, the parties ask:


Defendants' Position: If Plaintiff's expert takes pictures or measurements of “fringe” or perimeter areas to submit to the court to support the contention that changes are necessary for Plaintiff to return to the property or that the property fails to meet applicable standards for disabled accessibility, Defendants want Plaintiff's expert to also include “appropriate” pictures or measurements of the primary pathways and public areas “so that the Court will receive complete and accurate information about whether changes are actually needed.” If this court grants Defendants' relief, Defendants will seek fees in another motion.


Plaintiff's Position: Defendants cannot dictate how Plaintiff's expert will conduct his inspection or present his findings. Rule 34 allows Plaintiff a right to conduct an expert inspection and “the defense does not have the right to dictate how plaintiff's expert conducts his inspection, where he takes measurements, or to determine or dictate what pictures plaintiff's expert takes (if any) or how he presents his findings.” Plaintiff also asks for sanctions against defense counsel.


*3 In support of their argument, Defendants argue that if Plaintiff's expert does not use the methodology supported by the defense, then “it could create the inaccurate impression in this matter of public record that changes are required, or should be ordered, for the property to meet applicable standards.” Jt. Mtn, p. 3. They say that Plaintiff's unreliable, irrelevant and inaccurate information will not help the district judge determine whether the property meets the applicable standards for disabled access.


“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party[.]” Fed. R. Civ. Proc. 26(b)(1). Discovery can be limited if the burden of it “outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Fed. R. Civ. Proc. 26(b)(2)(iii).


Rule 34 governs site inspections. The purpose is:


to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.


Fed. R. Civ. Proc. 34(a)(2).


Plaintiff served a request for a site inspection to take place on June 25, 2014. Defendants agreed to the request, and on June 5, 2014 said that “[w]hile all discovery is stayed in this case ... Defendants are amenable to accommodating the inspection request and knew in filing the MPSJ that such a request might be made.” Ex Parte Mtn to Modify ENE and MSJ Deadlines, p. 2 [Dkt. No. 20]. On June 20, though, Defendants changed their mind, filed an 89–page “objection” to the site inspection (which the court struck from the docket), and unilaterally terminated Plaintiff's site inspection. They said they were amenable to allowing the site inspection but want the court to require Plaintiff's expert to use a specific methodology espoused by Defendants. Ex Parte Mtn to Further Modify ENE Order, p. 2 [Dkt. No. 26.] The court refused to impose the methodology and lifted the stay on discovery, so that there would be no question that the site inspection would be permitted.


Now, rather than address whether a site inspection should take place, Defendants use this discovery motion to attack the merits of Plaintiff's case. Such argument is irrelevant to whether Defendants—under the discovery rules—must allow Plaintiff to inspect the premises that he alleges do not physically comply with the ADA. Such an inspection satisfies the relevance requirement under Rule 26 as it relates to the claims and defenses in this suit. There is no apparent burden to Defendants to allow the inspection, which goes to the core issues at stake in the litigation, i.e., whether the premises are ADA compliant. And, Defendants never address why they cannot have their own expert do an inspection according to the protocol they espouse.


*4 Trying to impose a certain methodology on the inspection is not a legitimate basis to refuse to comply with an inspection demand or a court order that lifts discovery. In trying to dictate to Plaintiff how he should conduct his own site inspection, Defendants seek to circumvent the adversarial process and use Plaintiff as a vehicle to present their own arguments. If Plaintiff adopts Defendants' methodology for the site inspection, then it appears there will be no dispute to resolve. The request to order that the site inspection be done in a certain way essentially asks this court for an order that would preemptively determine there is no issue of fact, which is the question squarely before the district judge on summary judgment. In short, Defendants' request makes no sense.


For failure to show any legal authority or good cause to support circumvention of Rules 26 and 34 and the adversarial process, the court DENIES Defendants' motion to compel Plaintiff's expert to conduct a site inspection according to the methodology insisted upon by Defendants. The court ORDERS that Plaintiff's site inspection go forward no later than August 22, 2014, in which Plaintiff's expert shall use his own methodology to inspect the property and neither Defendants or Mr. Peters shall in any way impede the expert's inspection of the property.


Order to Show Cause.

A party can move for an order compelling a site inspection where “a party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.” Fed. R. Civ. Proc. 37(a)(3)(B)(iv). If the court grants the motion, “the court must, after giving an opportunity to be heard, require ... 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.” The court will not impose the sanctions if “the opposing party's ... objection was substantially justified.” Fed. R. Civ. Proc. 37(a)(5)(A)(iii). Wilfulness is not a requirement for sanctions; however, a good faith discovery dispute may amount to “substantial justification.” Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir.1981).


At this time it appears to the court that Defendants—based on the advisement of their counsel, Mr. David W. Peters—obstructed discovery without any legitimate justification. The obstruction includes:


• Unilateral termination of the June 25, 2014 site inspection, for which Mr. Peters represented to the court that the Defendants expected and were amenable to. [Dkt. No. 20, p. 2.]


• Filing with the court an 89–page “objection” to the site inspection that Defendants agreed to, which violated the court's filing rules and showed no effort to first meet and confer with Plaintiff to resolve the dispute.


• Even though the court lifted the stay on discovery—thus clearly opening the door for a site inspection under Rule 34—Defendants continued to insist that Plaintiff's expert conduct such inspection according to Defendants' own methodology rather than the expert's own methodology.


*5 • Signing a stipulation with Plaintiff that appeared to resolve Defendants' complaint about the methodology to be used for the site inspection, then unilaterally terminating the July 16 site inspection that Defendants had agreed to schedule.


By obstructing discovery the defense has prevented Plaintiff from filing a substantive opposition to the summary judgment motion. This not only prejudices Plaintiff but also encumbers the court because (1) the district judge has had to continue the briefing and hearing on the summary judgment motion several times to accommodate the defense's conduct; (2) it has encumbered this court with numerous and repetitive filings that ask the court to address the same issue of the site inspection; and (3) carries no regard for deadlines the court imposes, evidenced by the filing of this discovery motion five days late.


The court is aware that Mr. Peters has engaged in almost identical conduct in other cases. See, e.g., Shaw v. Tujunga Restaurants, Inc., 2012 U.S. Dist. LEXIS 176585 (C.D.Cal.2012) (imposing sanctions against Mr. Peters for $17,585.49 to compensate the plaintiff for the work to compel the site inspection, entirely due to the “machinations, misrepresentations, and general bad faith acts by defendant”); see also Hager v. Karr, 2006 U.S. Dist. LEXIS 4068 (C.D.Cal.2006) (imposing $1100 in sanctions against Mr. Peters for discovery violations and warning him that further failure to comply will expose him to the risk of additional monetary and case dispositive sanctions).


Based on the foregoing, the court ORDERS:


1. By August 13, 2014, Plaintiff's counsel shall file a declaration no longer than eight (8) pages setting forth the fees associated with the filing of this joint discovery motion, which shall include the attorney hours expended on the motion and all work to compel the site inspection, the hourly rate of the attorney(s) who worked on this issue, and a description of the attorney's experience.


2. Mr. Peters shall file by August 20, 2014 a responsive declaration no longer than eight (8) pages, setting forth what he believes to be substantial justification for opposing Plaintiff's site inspection demand.


3. Plaintiff may file by August 25, 2014 a reply no longer than four (4) pages to Mr. Peters' declaration.



IT IS SO ORDERED.