Hernandez v. KN Petroleum, LLC et al

Filing 35

Order. Signed 3/6/2025 by Magistrate Judge Kandis A. Westmore granting in part and denying in part 24 Motion for Sanctions. On or before 3/13/2025, Mr. Antone is ordered to serve copies of the following orders on his clients and file a cer tificate of service: 1. a copy of this order; 2. Defendant's opposition to the motion for sanctions dkt no 29 ; 3. the Court's order setting the hearing n the orders to show cause dkt no. 33 . Failure to timely file a certificate of service may result in the imposition of terminating sanctions, and judgment being entered in Plaintiff's favor against Defendants. (klh, COURT STAFF) (Filed on 3/6/2025)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GERARDO HERNANDEZ,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 4:24-cv-03653-KAW
ORDER GRANTING IN PART
PLAINTIFF'S MOTION FOR
SANCTIONS

v.

Re: Dkt. Nos. 24, 33

KN PETROLEUM, LLC, et al.,
Defendants.

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On December 9, 2024, Plaintiff filed a motion for terminating sanctions, or in the

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alternative, monetary sanctions. (Pl.’s Mot., Dkt. No. 24.) The Court issued two orders to show

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cause in connection with this motion for Defendants’ failure to timely file an opposition and set an

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order to show cause hearing for March 6, 2025, at which Defendants’ client representatives were

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explicitly ordered to appear. (Dkt. No. 33 at 2.)

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On March 6, 2025, the Court held a hearing on the motion for sanctions and on the orders

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to show cause. Defense counsel Gregory J. Antone and Defendants’ client representatives failed to

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appear, while Plaintiff’s counsel Tanya Moore appeared via videoconference. After considering

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the briefing and arguments made, for the reasons set forth below, the Court GRANTS IN PART

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Plaintiff’s motion for sanctions.

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I.

BACKGROUND

Plaintiff Gerardo Hernandez is a disabled individual who is substantially limited in his

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ability to walk and uses a wheelchair for mobility. He filed this action on June 18, 2024, seeking

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removal of barriers to his access at a gas station known as San Mateo Alliance, located at 1471

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East Third Avenue in San Mateo, California (“the Facility”). Plaintiff alleges that the Facility is

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owned and operated by Defendants KN Petroleum LLC and KN Stations LLC. Defendants are

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This case seeks, in part, relief pursuant to Title III of the Americans with Disabilities Act

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(“ADA”), and is, therefore, controlled by the procedures established by the Northern District’s

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General Order 56. The purpose of General Order 56 is to facilitate early settlement of access

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claims by generally staying the proceedings until the parties have complied with the General

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Order’s procedure. Defendants’ repeated noncompliance with General Order 56’s procedures has

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resulted in Plaintiff incurring additional attorney’s fees to procure Defendants’ cooperation.

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United States District Court
Northern District of California

represented by Gregory J. Antone.

Initially, Plaintiff had to file a motion for administrative relief to compel Defendants to

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participate in the joint site inspection, which required by Paragraph 7. (Dkt. No. 16.) In granting

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that motion, the Court ordered Defendants to cooperate and admonished them that further failure

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to cooperate in the General Order 56 requirements may subject them to sanctions. (Dkt. No. 17.)

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Thereafter, the parties conducted the joint site inspection on October 3, 2024. (Decl. of Tanya E.

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Moore, “Moore Decl.,” Dkt. No. 24-1 ¶ 2.) Under General Order 56, the settlement meeting was

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to be conducted within 35 days of the joint site inspection, or by November 7, 2024. (General

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Order 56 ¶ 8(a).) Following the settlement meeting, the parties are then required to attend

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mediation before the stay is lifted. (See General Order 56 ¶¶ 9-10.)

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Defendants failed to cooperate with Plaintiff regarding General Order 56’s requirements

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and refused to provide initial disclosures and schedule a settlement meeting, requiring Plaintiff to

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bring a second motion for administrative relief, which was granted on November 7, 2024. (Dkt.

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No. 23.) In that order, Defendants were ordered to cooperate with the scheduling of the settlement

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meeting, and to agree to a date for the meeting to take place no later than December 9, 2024. Id.

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The Court also granted Plaintiff’s request for leave to file a motion for sanctions if Defendants did

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not comply with that order. Id.

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Despite agreeing to conduct the settlement meeting on December 2, 2024, Defendants

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failed to attend without any explanation. (Moore Decl. ¶ 4.) Defendants also failed to serve initial

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disclosures as required by General Order 56, so Plaintiff was unable to evaluate their defenses

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based on the construction and alteration history of the premises. (Moore Decl. ¶ 3.)

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On December 9, 2024, Plaintiff filed the instant motion for sanctions. (Pl.’s Mot., Dkt. No.
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24.) Defendants did not timely oppose the motion, so, on January 6, 2025, the Court issued an

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order to show cause to Defendants why the motion should not be granted as unopposed and

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ordered Defendants to file a response to the order to show cause and an opposition or statement of

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non-opposition by January 13, 2025. (Dkt. No. 27.) On January 13, 2025, instead of formally

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requesting an extension of the deadline to respond to the order to show cause and file the

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opposition, defense counsel emailed the Court seeking an extension of time, which included

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arguments pertaining to the merits of this case. Since relief cannot be obtained via email, on

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January 16, 2025, the Court issued a second order to show cause and ordered Defendants to

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respond by January 24, 2025. (Dkt. No. 28.)
On January 24, 2025, Defendants filed a single document responding to the orders to show

United States District Court
Northern District of California

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cause and opposing the pending motion for sanctions. (Defs.’ Opp’n, Dkt. No. 29.) On January

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31, 2025, Plaintiff filed a reply. (Pl.’s Reply, Dkt. No. 30.)

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On February 13, 2025, the Court set a hearing on the order to show cause for March 6,

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2025, and continued to hearing on the motion for sanctions for the same date, and ordered that

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Defendants’ client representatives personally appear. (Dkt. No. 33.) In ordering that appearance,

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the Court permitted Defendants’ client representatives to appear remotely, along with Ms. Moore,

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whose request for remote appearance had been previously granted. Id. at 2, n. 2. Mr. Antone,

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however, absent a formal request to appear remotely, was expected to appear in person. Id.

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Despite being ordered to serve the prior orders on his clients,1 neither Mr. Antone nor his clients

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appeared at the hearing on the motion for sanctions and orders to show cause. (See 3/6/25 Minute

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Entry, Dkt. No. 34.)

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II.

DISCUSSION

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A.

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Plaintiff seeks reimbursement of attorney’s fees and costs under Federal Rule of Civil

Motion for Sanctions

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Procedure 37(a)(5)(A). (Pl.’s Mot. at 6.) Pursuant to Rule 37(b)(2)(A), “[i]f a party or a party's

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officer, director, or managing agent ... fails to obey an order to provide or permit discovery,

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It is unknown whether Defendants were ever served.
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United States District Court
Northern District of California

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including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue

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further just orders.” Rule 37(b)(2), lists several sanctions a court may impose and also provides

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for an award of reasonable expenses in lieu of or in addition to any of those sanctions. Fed. R. Civ.

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P. 37(b)(2)(A)(i)-(vii) & 37(b)(2)(C). “The scope of sanctions for failure to comply with a

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discovery order is committed to the sound discretion of the district court.” Payne v. Exxon Corp.,

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121 F.3d 503, 510 (9th Cir. 1997). The Northern District has awarded monetary sanctions in

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similar situations where defendants have flouted the General Order 56 requirements. See, e.g.,

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Johnson v. 480 Geary St., LLC, No. 19-CV-02460-JSW, 2020 WL 12654453, at *2 (N.D. Cal.

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May 28, 2020).

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As an initial matter, the Court declines to impose terminating sanctions, but will address

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Plaintiff’s request for the imposition of monetary sanctions. (See Pl.’s Mot. at 6.) In connection

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with the alternative request for monetary sanctions, Plaintiff requests that the Court again order

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Defendants to comply with its prior order to schedule and attend the General Order 56 settlement

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meeting, and to provide initial disclosures. Id. Plaintiff also requests that the Court admonish

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Defendants that further non-compliance will result in terminating sanctions. Id.
Instead of addressing his conduct, defense counsel attempts to excuse it based on his

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perception of the merits of this case. (Defs.’ Opp’n at 2-3.) The merits of the sanctions motion,

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which involves conduct during the discovery process, is not the same as the ultimate merits of the

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claims alleged. Indeed, regardless of the merits of the case, Defendants have an obligation to

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follow the procedures set forth in General Order 56. The fact that Ms. Moore did not produce an

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expert report prior to the settlement meeting does not excuse Defendants’ failure to appear. Id. at

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3. Moreover, the fact that Defendants attached initial disclosures, dated January 24, 2025, does

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not excuse the fact that they were due one week before the joint site inspection, which occurred on

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October 3, 2024. (See Pl.’s Reply at 4.)
Thus, Defendants have failed to comply with General Order 56, and violated multiple court

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orders telling them do so. As a result, the Court finds that Defendants’ repeated discovery

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misconduct warrants the imposition of monetary sanctions.

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Appropriate Relief
i.

Amount of Sanctions

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Plaintiff seeks monetary sanctions in the amount of $9,453.50 for attorneys’ fees and costs

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incurred due to Defendants’ misconduct. Specifically, Plaintiff seeks Plaintiff seeks $6,263.50 in

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connection with the motion for sanctions, and $3,190 in connection with the reply brief. (See Pl.’s

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Mot. at 7; Pl.’s Reply at 6.)

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United States District Court
Northern District of California

B.

To calculate reasonable attorney’s fees, courts follow the lodestar approach. “The most

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useful starting point for determining the amount of a reasonable fee is the number of hours

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reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v.

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Eckerhart, 461 U.S. 424, 433 (1983), abrogated on other grounds by Tex. State Teachers Ass'n. v.

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Garland Indep. Sch. Dist., 489 U.S. 782 (1989). The party seeking an award of fees should submit

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evidence supporting the hours worked and rates claimed. Id. “In determining a reasonable hourly

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rate, the district court should be guided by the rate prevailing in the community for similar work

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performed by attorneys of comparable skill, experience, and reputation.” Chalmers v. City of Los

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Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 1986), reh'g denied, amended on other grounds, 808

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F.2d 1373 (9th Cir. 1987) (citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). “Generally, the

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relevant community is the forum in which the district court sits.” Barjon v. Dalton, 132 F.3d 496,

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500 (9th Cir. 1997).

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Courts in this district have previously found Plaintiff’s counsel Tanya Moore’s hourly rate

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of $475 and paralegal Whitney Law’s hourly rate of $195 reasonable. See, e.g., Block v. Gennaro's

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Ltd. Liab. Co., No. 21-CV-00192-VKD, 2022 WL 2307203, at *12 (N.D. Cal. June 27, 2022)

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(collecting cases); Hernandez v. BMV Hotels, LP, No. 18-CV-07511-NC, 2021 WL 5053491, at

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*2-3 (N.D. Cal. Apr. 14, 2021). Plaintiff seeks the approval of the same rates for purposes of this

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motion. (Pl.’s Mot. at 6-7.) The Court finds that Plaintiff’s hourly rates are reasonable.

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In terms of the reasonableness of the time spent, Ms. Moore billed 6.7 hours on efforts to

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obtain Defendants’ cooperation with General Order 56 requirements, including the prior

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administrative motions and the opening brief for the instant motion, for a total of $3,182.50.

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(Moore Decl. ¶ 5, Ex. A.) Paralegal Whitney Law has spent a total of 15.8 hours on these efforts,
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United States District Court
Northern District of California

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for a total of $3,081.00. Ids. Plaintiff’s counsel provided billing records in support of her request.

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(Billing records, Moore Decl. ¶ 5, Ex. A.)

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Defendants’ opposition did not address the reasonableness of Plaintiff’s billing rates or the

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amount of time. Rather, Defendants spent one and one-half pages disputing the merits of the entire

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case, rather the merits of this motion for sanctions. (See Defs.’ Opp’n at 2-3.)

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In reply, Plaintiff seeks another $3,190, representing an additional 2.2 hours in attorney

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time and 11 hours in paralegal time. (Pl.’s Reply at 5; Suppl. Moore Decl. ¶ 7.) While the Court

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would generally question such an expense on reply, Plaintiff was required to address the merits of

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the case based on Defendants’ wholly inappropriate opposition. This included obtaining a

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declaration from Plaintiff’s accessibility consultant Robert Marquis, who provided photographs

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documenting the condition of the Facility on June 10, 2024. (See Decl. of Robert Marquis, Dkt.

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No. 30-2.) Thus, given the thoroughness of the reply brief, the Court finds that the amount of time

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expended was reasonable.

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Accordingly, Plaintiffs’ motion for sanctions is granted, and Defendants KN Petroleum

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LLC and KN Stations LLC, jointly and severally,2 are ordered to pay sanctions in the amount of

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$9,453.50.

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ii.

Disciplinary Committee Referral

While Plaintiff did not request a disciplinary referral, the Court finds that one is warranted.

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In response to the Court’s order to show cause, Mr. Antone brought up several mental and

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physical conditions to explain why he did not timely respond to the motion for sanctions or the

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first order to show cause. Based on Mr. Antone’s representations, the Court is concerned that

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these conditions interfere with his ability to adequately represent his clients. The Court notes that

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he is counsel of record in one other open case in this district, SUMCO Phoenix Corp. v.

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Integris/Millennium Joint Venture, LLC, 21-cv-00472-EMC. In that case, Mr. Antone was

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recently unable to meaningfully participate in two discovery disputes due to his current condition,

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and he stated that he did not believe that he could continue representing his client in that matter.

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This means that each corporate defendant is responsible for paying the full amount of the
sanctions award.
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Discovery Letter Briefs, SUMCO Phoenix Corp. v. Integris/Millennium Joint Venture, LLC, 21-

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cv-00472-EMC (Feb. 20, 2025), ECF Nos. 140 & 141.

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Mr. Antone’s failure to appear at the hearing suggests that he is likely unable to represent

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his clients in accordance with California Rule of Professional Conduct 1.1, which provides that

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“[a] lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform

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legal services with competence.” Cal. R. Pro. Conduct Rule 1.1(a). “Competence” includes the

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ability to apply the “mental, emotional, and physical ability reasonably necessary for the

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performance of [legal] services.” Cal. R. Pro. Conduct Rule 1.1(b).

United States District Court
Northern District of California

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In light of the foregoing, the Court refers Mr. Antone to the Northern District’s Standing

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Committee on Professional Conduct for disciplinary proceedings pursuant to Civil Local Rule 11-

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6(e). Mr. Antone is advised that any similar conduct going forward will be reported to the State

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Bar of California.

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III.

CONCLUSION

For the reasons set forth above, the Court GRANTS IN PART Plaintiff’s motion for

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sanctions. Specifically, while the Court denies the request for terminating sanctions, the Court

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awards Plaintiff sanctions against Defendants KN Petroleum LLC and KN Stations LLC, jointly

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and severally, in the amount of $9,453.50, which shall be payable within 21 days of this order.

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Additionally, the Court rules as follows:

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within 28 days of this Order;

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The deadline to conduct the settlement meeting under General Order 56 is hereby
extended to 28 days from the date of this Order;

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Defendants shall participate in a settlement meeting as required by General Order 56

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The deadline for the parties to file a Notice of Settlement of ADA Access Case or

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Notice of Need for Mediation and Certification of Counsel is hereby extended to 35

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days from the date of this Order.

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Notwithstanding, Defendants are advised that further failure to comply with General Order
56 and/or the Court’s Orders may result in terminating sanctions.
Additionally, Mr. Antone is referred to the U.S. District Court for the Northern District of
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California’s Standing Committee on Professional Conduct for further investigation pursuant to

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Civil Local Rule 11-6(e).

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Finally, on or before March 13, 2025, Mr. Antone is ordered to serve copies of the

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following orders on his clients and file a certificate of service: (1) a copy of this order; (2)

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Defendant’s Opposition to the motion for sanctions (Dkt. No. 29); and (3) the Court’s order setting

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the hearing on the orders to show cause (Dkt. No. 33). The failure to timely file a certificate of

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service may result in the imposition of terminating sanctions, and judgment being entered in

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Plaintiff’s favor and against Defendants.

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IT IS SO ORDERED.

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Dated: March 6, 2025
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

United States District Court
Northern District of California

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