Mendoza v. County of San Diego et al

Filing 17

ORDER: (1) vacating Show Cause Hearing; (2) Issuing Monetary Sanctions; (3) Resetting ENE Conference. The Court orders that Plaintiff's counsel remit payment in the amount of $742.18 to Defendants. The Court vacates the Show Cause Hearing currently set for May 10, 2018 at 9:30 a.m. The Court resets the Early Neutral Evaluation Conference for June 7, 2018 at 2:30 p.m. Signed by Magistrate Judge Nita L. Stormes on 5/8/2018.(jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PHILLIP JESSE MENDOZA,

Case No.: 17cv1349-W (NLS)
Plaintiff,

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v.

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ORDER:

COUNTY OF SAN DIEGO; SHERIFF'S
DEPUTY JAMES GIVENS; and DOES
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(1) VACATING SHOW CAUSE
HEARING;
(2) REGARDING ORDER TO SHOW
CAUSE AND ISSUING MONETARY
SANCTIONS;

Defendants.

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(3) RESETTING EARLY NEUTRAL
EVALUATION CONFERENCE

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I.

BACKGROUND

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On May 2, 2018, the Court issued an Order to Show Cause (“OSC”) due to

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Plaintiff Phillip Jesse Mendoza’s failure to personally appear at the Early Neutral

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Evaluation Conference (“ENE”) scheduled for that same day. ECF No. 12. Pursuant to

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that order, both Plaintiff and his counsel filed declarations outlining their reasons for
Plaintiff’s absence at the ENE. ECF Nos. 14, 15. In addition, Defendants filed a
declaration outlining the costs they incurred in preparing for and attending the ENE.
ECF No. 16.

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17cv1349-W (NLS)

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Plaintiff’s counsel explains in his declaration that he was not aware that he had to

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personally produce his client for the ENE, even when he had full settlement authority.

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ECF No. 14 at ¶ 2. Counsel attributes this error to his unfamiliarity with federal practice,

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but concedes that he did not read the court’s order setting the ENE, which set forth the

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personal appearance requirements for the conference. Id. Plaintiff explains in his

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declaration that he failed to personally appear because his attorney failed to tell him that

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he needed to appear. ECF No. 15 at ¶ 3. Plaintiff explains that he does have a full time

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construction job that does not afford him any time off. Id. at ¶ 4.

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Defendants submitted a declaration outlining the costs they incurred in preparing

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for and attending the ENE. ECF No. 16. Defendants’ counsel states that his hourly rate

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is $236.00 and he spent 8.0 hours total in connection with the ENE. Id. at ¶ 4. This

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includes time spent: (1) meeting with Deputy Givens (1.0); (2) preparing memo for and

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attending Case Evaluation Committee meeting (to determine settlement authority for

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ENE) (4.0); (3) preparing ENE brief (1.1); (4) reviewing file to prepare for ENE (0.4); (5)

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conference with Plaintiff’s counsel regarding ENE (0.2); and attending the ENE (1.3).

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Id. Counsel also states that his paralegal billed 3.8 hours to assist him in preparing for

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the ENE. Id. at ¶ 5. In addition, the County paid Deputy Givens $199.38 to attend the

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ENE as he was off duty and paid overtime to attend. Id., Ex. A at ¶ 3.

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II.

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Courts are “endowed with inherent powers which are necessary to the conduct of

DISCUSSION

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their business, including the power to sanction.” Yagman v. Republic Ins., 987 F.2d 622,

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628 (9th Cir. 1993). A court has the inherent authority to issue sanctions against parties

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and non-parties to an action based on their conduct. In re Rainbow Magazine, Inc., 77

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F.3d 278, 282 (9th Cir. 1996). Additionally, under Federal Rule of Civil Procedure 16(f),

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the Court may issue “any just orders,” including Rule 37 sanctions, “if a party or its

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attorney . . . fails to appear at a scheduling or other pretrial conference.” Fed. R. Civ. P.

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16(f)(1)(A). Furthermore, “the court must order the party, its attorney, or both to pay the

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reasonable expenses—including attorney’s fees—incurred because of any noncompliance
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17cv1349-W (NLS)

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. . . unless the noncompliance was substantially justified or other circumstances make an

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award of expenses unjust.” Fed. R. Civ. P. 16(f)(2); see also Sedgwick v. Unknown K-9

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Handler, 2013 U.S. Dist. LEXIS 77063, *11-12 (S.D. Cal. Apr. 23, 2013) (citing Ninth

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Circuit cases demonstrating the circuit court has repeatedly upheld monetary sanctions

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imposed for failure to comply with orders regarding settlement conferences).

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Having read the parties’ declarations, the Court finds sanctions should be issued

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against Plaintiff’s counsel for failing to produce his client for the ENE. While the Court

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acknowledges that Plaintiff’s counsel is sufficiently apologetic for his error and for the

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burden he placed on the Court and Defendants, he admits that the error arose from his

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failure to read the Court’s order. This does not amount to substantial justification.
As to the amount of the sanction, the Court finds it appropriate to award

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Defendants their costs incurred to personally appear at the ENE. This amount includes

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Defendants’ counsel’s 1.3 hours at a rate of $236.00 per hour, for a total of $306.80, and

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the $199.38 paid to Deputy Givens. As for the time that Defendants’ counsel and his

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paralegal spent preparing for the ENE, the Court declines to award fees associated with

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these tasks as it was not a wasted effort and they will not need to be performed again for

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the rescheduled ENE. However, the Court will award Defendants an additional hour of

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counsel’s time in order to prepare for the rescheduled ENE. Thus, in total, the Court

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levies sanctions against Plaintiff’s counsel in the amount of $742.18.

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17cv1349-W (NLS)

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III.

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Accordingly, the Court hereby ORDERS that:

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1. The Court ORDERS that Plaintiff’s counsel remit payment in the amount of

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CONCLUSION

$742.18 to Defendants.
2. The Court VACATES the Show Cause Hearing currently set for May 10, 2018
at 9:30 a.m.
3. The Court RESETS the Early Neutral Evaluation Conference for June 7, 2018
at 2:30 p.m.
IT IS SO ORDERED.
Dated: May 8, 2018

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17cv1349-W (NLS)