United States District Court,
C.D. California.
Cecil SHAW
v.
TUJUNGA RESTAURANTS, INC., et al.
No. CV 12–2193–SVW (SPx).
Nov. 6, 2012.
Tanya Moore, Moore Law Firm PC, San Jose, CA, for Cecil Shaw.
David W. Peters, Lawyers Against Lawsuit Abuse, San Diego, CA, David
G. Jones, Santiago Rodnunsky & Jones, Woodland Hills, CA, for Tujunga
Restaurants, Inc., et al.
Proceedings: (In Chambers) Order Granting Motion to Compel Site
Inspection [49] and Finding Sanctions Warranted
SHERI PYM, United States Magistrate Judge.
*1 Kimberly Carter, Deputy
Clerk.
Before the court is a very
simple matter: whether defendant Tujunga Restaurants, Inc. should be compelled
to permit plaintiff to conduct a site inspection of the restaurant at issue in
this case. After substantial effort to resolve this matter earlier, on October
2, 2012, plaintiff filed a document titled “Plaintiff's Unilateral Submission
of Discovery Dispute Due to Failure of Tunjunga [sic] Restaurants, Inc. to
Timely Submit Its Position” (“motion to compel” or “Mtn.”) (docket no. 49),
seeking to compel the site inspection and sanctions. After some delay, on
October 24, 2012, defendant Tujunga Restaurants, Inc. filed a document
confusingly titled “Declaration of David Peters re need for additional time to
respond to plaintiff's discovery motion” (the “opposition” or “Opp.”). As
explained in the court's October 26, 2012 minute order, the court construes
this filing as defendant's opposition to the motion to compel. Plaintiff filed
his reply on October 30, 2012.
Defendant's opposition
consists largely of an unsubstantiated attack on the merits of plaintiff's
case. This is irrelevant to the very simple question before the court in this
motion: whether defendant should be compelled to permit an inspection of the
restaurant that plaintiff contends does not physically comply with the
requirements of the Americans with Disabilities Act. Because the relevance of
the inspection is obvious, and because the burden of the inspection is minimal,
the answer to that question is very clearly yes.
The other question before the
court is whether defendant should be sanctioned for its refusal to agree to
this inspection without necessitating this motion to compel. The answer to that
question is also yes, for the reasons that follow.
Background
Plaintiff initiated this
action by filing a complaint on March 15, 2012, alleging violations of the
Americans with Disabilities Act of 1990 (“ADA”) and certain California laws.
Plaintiff filed a first amended complaint on April 9, 2012, naming as
defendants Tujunga Restaurants, Inc., dba Denny's # 7501, and James
Papadopoulos. Plaintiff filed his second amended complaint on August 3, 2012.
Plaintiff, who uses a wheelchair, alleges he encountered barriers to his
ability to use and enjoy the services offered at Denny's restaurant # 7501 in Tujunga,
including improperly configured parking spaces, an unsafe route of travel from
the parking lot to the restaurant, and insufficient clearances for a wheelchair
in the restroom.
On June 29, 2012, plaintiff
served a demand to inspect Denny's restaurant # 7501 on July 25, 2012 at 2:00
p.m. Mtn. Ex. A. Defendant Tujunga Restaurants served objections on July 23,
2012, and followed up with an email regarding the objections on July 24, 2012.
Opp. Exs. T, U.
On July 25, 2012, the court
and counsel for plaintiff and defendant Tujunga Restaurants engaged in a
telephonic conference call regarding their dispute concerning the site
inspection. Plaintiff's counsel reported that the inspection of Denny's
restaurant # 7501 had been scheduled for that day and she was prepared to
proceed, but that counsel for defendant Tujunga had belatedly raised objections
to the inspection. Defendant's counsel reported that his objections were not
late, and that he objected to the inspection proceeding until plaintiff filed a
second amended complaint. Because there was no motion pending before the court
and the court lacked the complete (and disputed) procedural history, the court
stated it would not order the inspection to go forward that day. But the court
noted that it saw no reason the inspection should not go forward that day, and
cautioned defendant's counsel that not allowing an inspection that had
previously been agreed to could result in sanctions for the costs incurred by
plaintiff. See Mtn. Ex. R at 12, 17.
*2 On August 1, 2012, the
parties met and conferred and agreed to a site inspection on August 9, 2012.
Opp. Ex. R at 37. After their August 1, 2012 call, the parties learned that the
court had vacated the scheduling conference previously set for August 13, 2012.
Although not the only reason plaintiff was anxious to schedule the site inspection,
the transcript of the August 1, 2012 call makes clear that plaintiff was
insistent that the site inspection occur before the scheduling conference, and
defendant agreed. See id. at 29–31. After they learned the August 13,
2012 conference had been vacated, defendant requested they hold off on the site
inspection for a bit, and instead schedule the inspection for the week of
August 20, 2012. See Opposition to Plaintiff's Ex Parte Application to
Compel Site Inspection (docket no. 42), Ex. B.
On August 6, 2012,
plaintiff filed an ex parte application to compel defendant to permit the site
inspection to go forward on August 9, 2012 as the parties had agreed. In its
August 7, 2012 opposition to the ex parte application, defendant represented
that it agreed to schedule the site inspection during the week of August 20,
2012. Based largely on this representation, the court denied the ex parte
application in an August 8, 2012 minute order.
Following the court's
August 8, 2012 order, plaintiff's counsel promptly and repeatedly emailed
defendant's counsel to schedule the site inspection during the week of August
20, 2012, including repeatedly trying to confirm a specific date of August 24,
2012 after defendant's counsel offered that as a possible date. See Mtn.
Exs. C–L. On August 29, 2012, defendant's counsel sent an email proposing that
the site inspection be postponed until the plaintiff is deposed. Mtn. Ex. M.
Defendant's counsel further stated that if plaintiff wished to pursue the site
inspection, the discovery dispute would need to be resolved under Local Rule 37
and therefore plaintiff should prepare his portion of the joint stipulation and
email it to defendant. Id.
Plaintiff's counsel sent
plaintiff's portion of the joint stipulation to defendant's counsel on
September 20, 2012. Moore LR 37–2.1 Decl.; Opp. Ex. E. When defendant's counsel
failed to respond by September 27, 2012, the next day plaintiff's counsel
emailed him to state plaintiff would proceed unilaterally on the motion to
compel. Id. Defendant's counsel replied that he might need the weekend
to prepare his response, and plaintiff's counsel agreed to wait until Monday. Id.
After defendant's counsel failed to provide his response on Monday and told
plaintiff's counsel he needed still more time, on Tuesday, October 2, 2012,
plaintiff filed his motion to compel. Moore LR 37–2.1 Decl.; Opp. Ex. F.
On October 11, 2012,
defendant Tujunga Restaurants filed a declaration by its counsel asserting a
need for additional time to respond to the discovery motion. In his declaration
requesting more time, defendant's counsel stated, inter alia: (1) he was
outside the United States on travel booked before the discovery motion was
filed, and was unable to electronically file documents supporting his
opposition to the motion while he is traveling due to internet connection
problems; and (2) he was unable to respond to the discovery motion [presumably
before his travels] due to a death in the family and personal illness.
*3 On October 16, 2012, the
court issued a minute order granting defendant until October 23, 2012 to file
an opposition to the motion to compel, but also warning defendant that it
appeared that sanctions are warranted. As such, the court specifically ordered
that defendant's response should address all aspects of the request to compel a
site inspection and the request for sanctions, including defendant's refusal to
allow a site inspection earlier, defendant's apparent failure to participate in
the preparation of a joint stipulation, and defendant's representations to the
court and plaintiff concerning defendant's counsel's travel, illness, and other
matters that prevented defendant's counsel from responding earlier.
Defendant filed its
opposition one day late, on October 24, 2012. Although defendant addressed its
refusal to allow the site inspection and failure to participate in preparing a
joint stipulation, it failed to address counsel's alleged travel, illness, or
other matters that prevented a timely response.
Site Inspection
The Federal Rules of Civil
Procedure permit a party to request—“within the scope of Rule 26(b)”—“entry
onto designated land or other property 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.P.
34(a)(2). Rule 26(b) permits “discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). A site
inspection of the Denny's restaurant is clearly relevant to the claims in this
case.
Plaintiff served his demand
for a site inspection on June 29, 2012. Mtn. Ex. A. The only ground stated in defendant's
formal objection was that plaintiff had not yet filed a second amended
complaint. Opp. Ex. T. Plaintiff filed his second amended complaint on August
3, 2012. Thus, even assuming defendant's wish to have a second amended complaint
filed was ever a proper basis to object, that basis no longer exists.
Nonetheless—after earlier
representing to the court that defendant would allow a site inspection during
the week of August 20, 2012—defendant now contends in its opposition that the
claims asserted by plaintiff are provably false, and that therefore plaintiff
should be required to sit for a deposition before the site inspection so that
plaintiff cannot “use the site inspection to get his story straight.” FN1
Opp. at 3. Defendant's preferred sequence of discovery is not a legitimate
basis to refuse to comply with a valid inspection demand. Defendant has cited
no authority requiring that witnesses be deposed before other discovery occurs,
and the court is aware of none.
FN1. Defendant also
contends that plaintiff's counsel has a pattern of filing frivolous complaints,
and that defendant's settlement offer was reasonable and should have been
accepted or at least met by a counteroffer by plaintiff. These contentions are
beside the point of this discovery dispute and do not merit consideration in
connection with this motion.
Defendant further contends
that plaintiff's counsel should not inspect the property until after defendant
has had an opportunity to make improvements to remedy the alleged deficiencies.
Defendant provides no support for this unusual approach to discovery, and it
makes no sense. Certainly plaintiff is entitled to conduct a full site
inspection before defendant has altered the facilities in question.
*4 Defendant's counsel also
suggests that his client is being improperly precluded from making improvements
to the restaurant because the site inspection has not occurred yet. This
dilemma could, of course, have been avoided had defendant and its counsel
promptly and properly agreed to a site inspection back in July. And in any
event, defendant's dilemma will be solved by this order requiring the site
inspection to proceed immediately. Given defendant's apparent desire to make
changes to the property, such an immediate inspection would seem to be in everyone's
interest.
Sanctions
Rule 37(a)(5) provides that
the prevailing party on a discovery motion is entitled to an award of its
reasonable expenses incurred in bringing or opposing the motion, including
attorney's fees, except no payment should be ordered if: (1) the motion was
filed before the moving party made a good faith effort to resolve the dispute;
(2) the losing party's position was substantially justified; or (3) other
circumstances make award of expenses unjust. Fed.R.Civ.P. 37(a)(5). Local Rule
37–4 also provides that failure by counsel to comply with or cooperate in the
joint stipulation procedures required by Local Rule 37 for presenting discovery
disputes to the court “may result in the imposition of sanctions.”
It appears from the record
that there could have been a genuine miscommunication between the parties as to
whether they had agreed to a site inspection on July 25, 2012. But thereafter,
defendant obstructed the discovery process without any legitimate justification.
This obstruction included:
• Agreeing to an August 9,
2012 inspection date, and thereafter retracting that agreement, ostensibly
because the August 13, 2012 scheduling conference was vacated and to
accommodate some scheduling conflicts;
• Representing to the
court, in its opposition to the application to compel an inspection on August
9, 2012, that defendant agreed to an inspection during the week of August 20,
2012, thus causing the court to find no need to compel the inspection to go forward
on August 9, 2012;
• Thereafter refusing to
agree to an inspection during the week of August 20, 2012 or at any time prior
to plaintiff's deposition—a basis for refusing to the inspection not previously
raised;
• Failing to provide its
portion of the joint stipulation to plaintiff within the time required by Local
Rule 37, asking for additional time to do so, and then again failing to provide
its portion within the extended period requested; and
• Failing to timely oppose
the motion to compel without providing a good reason for doing so, and
ultimately filing its opposition one day after the extended deadline without
explanation of its delays, even after the court specifically directed defendant
to include such reasons in its opposition,
It is apparent that
plaintiff made an extensive and good faith effort to resolve this dispute prior
to filing a discovery motion. Further, defendant was utterly unjustified in
opposing the site inspection and motion to compel. During this protracted
process, defendant never articulated a legitimate reason not to permit a
clearly relevant inspection. In addition, defendant has obstructed and delayed
the discovery process by making false representations to both plaintiff's
counsel and the court regarding its intentions to comply, and then interposing
frivolous objections. As such, sanctions in the amount of the costs to bring
this motion are plainly warranted and required by Rule 37(a)(5) and Local Rule
37–4.
*5 Moreover, based on this
record, the court further finds that plaintiff's ex parte application to compel
the inspection to go forward on August 9, 2012 was both warranted and necessary
to plaintiff's efforts to obtain a site inspection, and defendant's opposition
to that application was unjustified. Defendant simply duped the court in
falsely representing it would agree to the inspection during the week of August
20, 2012. As such, sanctions are also warranted in the amount of the costs to
bring that earlier ex parte application.
Finally, based on
defendant's counsel's misrepresentations to the court in connection with the
earlier application to compel the inspection on August 9, 2012, the court finds
defendant's counsel, David W. Peters, acted in bad faith. As such, the court
finds sanctions against Mr. Peters personally in an amount to be determined are
also warranted. See Chambers v.NASCO, Inc., 501 U.S. 32, 54–55, 111
S.Ct. 2123, 115 L.Ed.2d 27 (1991) (upholding district court's inherent power to
impose sanctions for fraud on the court and bad faith).
IT IS THEREFORE ORDERED:
1. Plaintiff's motion to
compel is hereby GRANTED. Defendant Tujunga
Restaurants, Inc. shall
permit plaintiff, his counsel, and any experts or consultants retained to
assist counsel, to conduct an inspection of the Denny's restaurant # 7501 on or
before November 21, 2012, on any date and at any time selected by plaintiff
during that period, provided that plaintiff gives defendants at least 24 hours
notice.
2. In a subsequent order,
the court will award sanctions against defendant Tujunga Restaurants, Inc. and
its counsel in the amount of plaintiff's attorney's fees and costs in bringing
this motion to compel and the related ex parte application to compel the
inspection on August 9, 2012, and also against counsel for his bad faith conduct.
So that the court may determine the amount of the sanctions award:
a. Plaintiff is directed to
submit proof of the fees and costs expended in bringing the motions on or
before November 20, 2012. Such proof shall detail the hours spent on the
motion by date and work performed.
b. Defendant may file any
response on or before November 28, 2012.
C.D.Cal.,2012.
Shaw v. Tujunga Restaurants, Inc.
Not Reported in F.Supp.2d, 2012 WL 5974184 (C.D.Cal.)
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