Defense ADA Lawyer Sanctioned for $17,584.49

United States District Court,

C.D. California.

Cecil SHAW

v.

TUJUNGA RESTAURANTS, INC., et al.

No. CV 12–2193–SVW (SPx).

Signed Dec. 18, 2012.

Tanya Moore, Moore Law Firm PC, San Jose, CA, for Cecil Shaw.

David W. Peters, Lawyers Against Lawsuit Abuse, San Diego, CA, for Tujunga Restaurants Inc., et al

Proceedings: (In Chambers) Order Imposing Sanctions

SHERI PYM, United States Magistrate Judge.

*1 Kimberly Carter, Deputy Clerk.

On November 6, 2012, the court granted plaintiff's motion to compel a site inspection of the restaurant at issue in this case, and found sanctions against defendant Tujunga Restaurants, Inc. to be warranted. The court ordered further briefing by the parties on the amount of sanctions to be awarded, and that briefing has since been completed.

Having reviewed that supplemental briefing, the court now stands by its November 6, 2012 finding that compensatory sanctions are warranted in the amount of fees and costs reasonably expended by plaintiff to bring the motion to compel, and in the amount of the fees and costs reasonably expended by plaintiff to bring an ex parte application to compel the site inspection on August 9, 2012. Defendant chiefly argues that no sanctions are warranted by pointing to plaintiff's failure to bring a motion to compel in July 2012 by way of a joint stipulation. The court agrees (as indicated in its November 6, 2012 order) that plaintiff is not entitled to compensation for his discovery efforts that led up to the July 25, 2012 telephonic conference with the court. But the record indicates that after August 1, 2012, defendant Tujunga Restaurants acted in bad faith in trying to obstruct the site inspection, and-although not apparent to the court in August 2012—plaintiff was entirely justified in seeking to compel the site inspection by way of ex parte application.

The court has reviewed the records submitted by plaintiff to determine the amount of fees and costs reasonably expended. The court finds the hourly rates and hours spent on the work detailed to be generally reasonable. The court discounts the hours and costs submitted as follows:

• Of the 60.89 hours worked by attorney Moore, the court finds 34.24 hours (at a rate of $350 per hour) to have been reasonably spent, having subtracted 26.09 hours worked thereafter that do not appear clearly relevant to the motions in question;

• Of the 43.1 hours worked by paralegal Sacks, the court finds 31.34 hours (at a rate of $150 per hour) to have been reasonably spent, having subtracted 11.76 hours worked prior to August 2, 2012;

• The court does not discount the 6.4 hours (at a rate of $85 per hour) worked by paralegal Banuelos; and

• From the $1,606.49 in total costs sought, the court subtracts the $1,250 spent on the canceled July 25, 2012 site inspection.

Accordingly, the court finds $17,585.49 to have been reasonably expended by plaintiff in seeking to compel the site inspection after August 1, 2012. Although this is an extraordinarily large sum to have spent to pursue a simple site inspection, that so much was expended by plaintiff was entirely due to the machinations, misrepresentations, and general bad faith acts by defendant Tujunga Restaurants. As such, it is appropriate that defendant pay these fees and costs.

The court also stands by its November 6, 2012 finding that defendant's counsel David W. Peters acted in bad faith in making misrepresentations to the court in opposing plaintiff's ex parte application to compel the inspection on August 9, 2012. Defendant did not dispute or even address the court's findings with respect to these misrepresentations in its November 29, 2012 supplemental briefing on the sanctions to be imposed. This bad faith conduct could warrant separate, punitive sanctions against counsel. See Chambers v. NASCO, Inc., 501 U.S. 32, 54–55, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). In light of the substantial compensatory sanctions being awarded, however, in this instance the court will not recommend additional, punitive sanctions.

*2 IT IS THEREFORE ORDERED:

On or before January 4, 2013, defendant Tujunga Restaurants, Inc. and its counsel David W. Peters shall pay sanctions to plaintiff pursuant to Fed.R.Civ.P. 37(a)(5) and Local Rule 37–4 in the total amount of $17,585.49. This sanctions award is imposed against defendant and its counsel jointly and severally, which means that if it is not paid by defendant Tujunga Restaurants, Inc., it must be paid by defendant's counsel.

C.D.Cal.,2012.

Shaw v. Tujunga Restaurants, Inc.

Not Reported in F.Supp.2d, 2012 WL 11781626 (C.D.Cal.)