Banks v. Whambo! Enterprises LLC et al
Filing
32
ORDER Imposing Sanctions on Michael A. Taibi, Esq. Signed by Judge Larry Alan Burns on 6/4/2021.(jmr)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
DWIGHT BANKS,
Case No.: 20-cv-1674-LAB (DEB)
Plaintiff,
12
13
v.
14
ORDER IMPOSING SANCTIONS
ON MICHAEL A. TAIBI, ESQ.
WHAMBO! ENTERPRISES, LLC dba
BAGBY BEER COMPANY;
GALLEISKY PROPERTY
MANAGEMENT, LLC,
15
16
17
Defendants.
18
19
20
I.
21
On April 19, 2021, the Magistrate Judge Daniel E. Butcher held a hearing on two
22
Orders to Show Cause directed to Plaintiff Dwight Banks and three Orders to Show Cause
23
directed to Plaintiff’s attorney Michael A. Taibi. Dkt. Nos. 11, 16, 21, 28, 31. Prior to the
24
hearing, Banks and Taibi submitted briefing, declarations, and evidence responding to the
25
Orders. See Dkt. Nos. 12, 19, 26, 27.
INTRODUCTION
26
Upon consideration of the information before the Court, the Court sanctions Taibi
27
$500 for the conduct at issue in the December 7, 2020 Order to Show Cause. The Court
28
also sanctions Taibi $1,000 for the conduct at issue in the December 22, 2020 Order to
1
20-cv-1674-LAB (DEB)
1
Show Cause, reaffirms its referral of Taibi to the Standing Committee on Discipline, and
2
expands the referral to include Taibi’s representations to the Court. The Court does not
3
impose sanctions in connection with the March 23, 2021 Order to Show Cause but
4
reaffirms the March 23, 2021 referral to the Standing Committee on Discipline.
5
6
7
II.
PROCEDURAL BACKGROUND
A. Prior Orders to Show Cause and Sanctions Imposed Against Taibi and
his Clients
8
Prior to this case, judges in this District have issued Orders to Show Cause and
9
imposed either monetary or terminating sanctions in at least six Americans with
10
Disabilities Act (“ADA”) cases filed by Taibi. These other Orders to Show Cause provide
11
important background to the issues here.
12
In Mason v. Ivanov, No. 18-cv-946-JAH (BGS), District Judge John A. Houston
13
issued two Orders to Show Cause. In the first Order to Show Cause, Judge Houston
14
expressed concern over representations made in the in forma pauperis (“IFP”) applications
15
of Taibi’s clients. Id., Dkt. No. 11. Judge Houston noted “[m]ost IFP applications
16
[submitted by Taibi’s clients] have been granted, but when a Court has challenged the
17
statements in an IFP application, or denied the application entirely, the filing fee is paid
18
within days.” Id. at 2. Taibi paid the $400 filing fee seven days after Judge Houston issued
19
the Order to Show Cause. Id., Dkt. No. 12. In the second Order to Show Cause, Judge
20
Houston expressed “concerns relating to Plaintiff’s involvement in this action . . . .” Id.,
21
Dkt. No. 18 at 1. Judge Houston ultimately dismissed the case for failure to comply with
22
the Court’s orders. Id., Dkt. No. 25.
23
In Jackson v. Dang, 18-cv-1380-CAB (WVG), District Judge Cathy Ann
24
Bencivengo issued two Orders to Show Cause. The first arose out of Taibi’s failure to
25
timely serve the summons. Id., Dkt. No. 8. The second questioned representations made in
26
the IFP application of Taibi’s client. Id., Dkt. No. 9. Judge Bencivengo set the matter for a
27
hearing and ordered Taibi’s client to personally appear. Id., Dkt. No. 18. Taibi then
28
withdrew the IFP application and paid the $400 filing fee. Dkt. Nos. 19, 20. Judge
2
20-cv-1674-LAB (DEB)
1
Bencivengo dismissed the case with prejudice after Taibi’s client failed to appear at two
2
Order to Show Cause hearings. Id., Dkt. No. 24.
3
In Gay v. Berumen, No. 18-cv-2661-CAB (BLM), Judge Bencivengo issued an
4
Order to Show Cause questioning representations in the IFP Application of Taibi’s client.
5
Id., Dkt. No. 6. Taibi then withdrew his client’s IFP application, paid the $400 filing fee,
6
and filed an Ex Parte Motion to Vacate the Order to Show Cause Hearing. Id., Dkt. Nos.
7
10, 11, 12. Judge Bencivengo denied the Ex Parte Motion and dismissed the case with
8
prejudice after Taibi’s client failed to appear at three Order to Show Cause hearings. Id.,
9
Dkt. Nos. 13, 20.
10
In Jackson v. Juanita’s Taco Shop, Inc., No. 18-cv-2679-H (LL), Magistrate Judge
11
Linda Lopez issued an Order to Show Cause and sanctioned Taibi $200 because, among
12
other things, he failed to meet and confer and ignored defense counsel’s efforts to schedule
13
the meet and confer. Id., Dkt. No. 19 at 3. Judge Lopez issued a second Order to Show
14
Cause (after Taibi’s client did not appear at the Early Neutral Evaluation Conference
15
(“ENE”)) and a third (after the parties still had not met and conferred) but imposed no
16
additional sanctions. Id., Dkt. Nos. 31, 32, 36.
17
In Gay v. Mariscos El Pulpo II, Inc., No. 19-cv-0256-WQH (KSC), Magistrate Judge
18
Karen S. Crawford issued two Orders to Show Cause and sanctioned Taibi $683 ($483 to
19
defense counsel and $200 to the Court) because he failed to timely appear at an ENE and
20
failed to appear at all for the subsequent Order to Show Cause hearing. Id., Dkt. No. 29.
21
Judge Crawford also found Taibi misrepresented facts in responding to her Order to Show
22
Cause. Id. at 3 n.1.
23
In Mason v. Tic Bayside Inn, LLC, No. 19-cv-0392-W (LL), Judge Lopez issued two
24
Orders to Show Cause directed to Taibi. The first arose out of Taibi’s failure to comply
25
with Judge Lopez’s ENE Order. Id., Dkt. No. 10. Judge Lopez declined to impose sanctions
26
at that time. Id., Dkt. No. 13. Ten days later, however, Judge Lopez issued a second Order
27
to Show Cause after Taibi’s client did not appear at the ENE. Id., Dkt. No. 17. Judge Lopez
28
sanctioned both Taibi and his client $500 and stated that “[a]lthough the Parties represent
3
20-cv-1674-LAB (DEB)
1
they have settled the case, the Court continues to have concerns relating to Plaintiff’s
2
involvement in this case.” Id., Dkt. No. 21 at 3 (taking judicial notice of Mason v. Ivanov,
3
supra).
4
B. The Three Orders to Show Cause Issued in this Case
5
On August 27, 2020, Taibi filed this case on behalf of Banks. Dkt. No. 1. The
6
Complaint alleges certain aspects of Defendant Whambo! Enterprises LLC’s restaurant in
7
Oceanside, California failed to comply with the ADA. Id.
8
On September 23, 2020, Defendants answered the Complaint (Dkt. No. 4), and the
9
Court issued a Notice and Order Setting Early Neutral Evaluation Conference for
10
November 12, 2020 (Dkt. No. 5, the “ENE Order”).
11
The Court’s three Orders to Show Cause arise out of Banks and Taibi’s failures to
12
comply with the Court’s ENE Order and subsequent orders relating to rescheduled ENEs.
13
1. Taibi’s Failure to Meet and Confer (December 7, 2020 Order to
Show Cause)
14
15
16
17
18
19
20
The Court’s ENE Order directed the parties to meet and confer prior to the ENE as
follows:
No later than October 22, 2020, counsel for the parties must meet and confer
in person at the subject premises regarding settlement of the alleged ADA
violations and Plaintiff’s demand for damages, costs, and attorneys’ fees.
Counsel must attend this meeting in person and with authority to negotiate a
settlement at this meeting.
21
Id. at 4. The ENE Order provided instructions for the parties to follow if they could
22
not safely meet and confer in person because of COVID-19:
23
24
25
26
27
If counsel are unable to safely meet and confer in person due to circumstances
relating to the COVID-19 public emergency, counsel must jointly call
Chambers prior to this deadline to explain the reason(s) they cannot meet at
the subject premises and how they propose to accomplish the objectives of the
in-person requirement by videoconference or other means.
Id. at 4 n.5.
28
4
20-cv-1674-LAB (DEB)
1
On November 9, 2020, after learning counsel had not complied with the ENE
2
Order’s meet and confer requirement and that Banks was unavailable on
3
November 12, 2020, the Court reset both the meet and confer deadline and the ENE date.
4
Dkt. No. 7 at 1–2. Counsel, however, did not meet and confer at the premises by the new
5
deadline. Defense counsel represented that he emailed Taibi three times (on November 10,
6
13, and 19, 2020) to schedule the meet and confer, but Taibi did not respond to any of the
7
emails. Dkt. No. 9 at 4.
8
On December 7, 2020, after learning about Taibi’s failure to cooperate in scheduling
9
a meet and confer at the subject premises, the Court issued an Order to Show Cause
10
directing Taibi to “SHOW CAUSE why sanctions should not be imposed against him for
11
failing to timely participate in the on-site meeting . . . .” Dkt. No. 11 at 2. The Court also
12
granted Plaintiff’s ex parte application to continue the ENE and reset it for
13
December 18, 2020. Dkt. No. 10.
14
On December 15, 2020, Taibi filed a Supplemental Brief Regarding Meet and
15
Confer Sanctions responding to the December 7, 2020 Order to Show Cause. Dkt. No. 12.
16
Taibi explained the meet and confer did not take place because COVID-19 made it unsafe
17
to do so. Id. at 3–4. Taibi also stated he conferred with defense counsel on
18
December 4, 2020 and met in person at the premises at issue on December 14, 2020. Id.
19
at 2–4.
20
21
22
23
24
25
26
27
2. Banks’ Failures to Attend the ENE Conferences (December 22,
2020 and March 23, 2021 Orders to Show Cause)
The ENE Order required the parties to attend and participate in the ENE. Dkt. No. 5
at 2. The Court twice continued the November 12, 2020 ENE (once over Defendants’
objection) based on Taibi’s representation that Banks was recovering from a physical
attack and could not participate. Dkt. No. 7 (continuing ENE from November 12, 2020 to
December 8, 2020), Dkt. No. 10 (continuing ENE from December 8, 2020 to December
18, 2020). Less than seventeen hours before the December 18, 2020 ENE, Taibi filed an
28
5
20-cv-1674-LAB (DEB)
1
“Ex Parte Application and Order Requesting to Continue Early Neutral Evaluation
2
Conference Scheduled for December 18, 2020,” asserting Banks was
3
admitted [to] Palomar Hospital on or about November 4, 2020 upon being
transferred from Villa Rancho Bernardo Rehabilitation Center … due to an
injury that he received while in the care of Villa Rancho Bernardo Rehab
Center. The injury was a severe blow to the head. He is still under the care for
the injury and unable to attend….
4
5
6
7
Dkt. No. 13 at 2. The Court denied the Ex Parte Motion (Dkt. No. 14) and proceeded with
8
the ENE (Dkt. No. 15). Taibi attended and participated in the ENE, but Banks did not. Dkt.
9
No. 16 at 2. At the conclusion of the ENE, the Court reset the ENE to February 2, 2021,
10
and continued the hearing on the December 7, 2020 Order to Show Cause to that same
11
date. Dkt. No. 15.
12
On December 22, 2020, the Court issued an Order to Show Cause directing Banks
13
and Taibi to “SHOW CAUSE why sanctions should not be imposed for Plaintiff’s failure
14
to participate in the [December 18, 2020] ENE Conference.” Dkt. No. 16 at 2. The Court
15
set the matter for a hearing on February 2, 2021, following the continued ENE Conference
16
on that same date. Id. Taibi filed a responsive declaration explaining:
17
On February 19, 2021, Plaintiff’s counsel received a complete copy of the
Plaintiff’s medical records during his stay at [Villa Rancho Bernardo
Rehabilitation Center] that began on October 15, 2020 until his conditional
release on January 22, 2021. Plaintiff is still under a physician’s care and
requires continuous rehabilitative therapy regularly as well as medication.
Plaintiff’s counsel has approximately 200-pages of additional documentation
available to the Court upon request regarding the daily status and condition of
the Plaintiff during his stay at [Villa Rancho Bernardo Rehabilitation Center].
18
19
20
21
22
23
Dkt. No. 19 at 4. Taibi also lodged a second declaration and eight pages of Banks’ medical
24
records. 1
25
26
27
28
The lodged declaration and medical records are attached as Exhibit 1 to this Order.
Because of the sensitive nature of these records, the Court directs the Clerk’s Office to file
Exhibit 1 under seal.
1
6
20-cv-1674-LAB (DEB)
1
At Taibi’s request, the Court reset the February 2, 2020 ENE to February 26, 2021.
2
Dkt. No. 20. Taibi appeared at the February 26, 2021 ENE, but Banks did not. Id. Taibi
3
represented he did not know Banks’ whereabouts or why he did not appear. The ENE
4
proceeded without Banks, and Taibi committed to a resolution in which he agreed to
5
dismiss Banks’ case in exchange for a mutual waiver of costs and fees. Dkt. No. 20.
6
Pursuant to this agreement, the parties filed a Joint Motion to Dismiss on March 23, 2021.
7
Dkt. No. 23.
8
On March 23, 2021, the Court issued an Order: (1) continuing the hearings on the
9
December 7 and 22, 2021 Orders to Show Cause; (2) ordering Banks to show cause why
10
the Court should not impose sanctions for his failure to appear at the February 26, 2021
11
ENE; and (3) referring Taibi to the Standing Committee on Discipline to investigate the
12
conduct described in the Order, including Taibi’s filing of three additional cases on Banks’
13
behalf while Taibi and Banks were not in communication because of Banks’ alleged head
14
injury. Dkt. No. 21. On April 7, 2021, Taibi and Banks each filed a Declaration responding
15
to the March 23, 2021 Order to Show Cause. Dkt Nos. 26 and 27.
16
3. The April 19, 2021 Hearing on the Orders to Show Cause
17
On April 19, 2021, Magistrate Judge Butcher held a telephonic hearing on the three
18
pending Orders to Show Cause. Taibi, Banks, and Mary Allain (counsel for Defendants)
19
appeared. Dkt. No. 28; see also Dkt. No. 31 (Transcript).
20
Regarding the December 7, 2020 Order to Show Cause (concerning Taibi’s failure
21
to meet and confer at the premises), Taibi cited COVID-19 concerns as “the driving force
22
behind not actually getting together on site.” Dkt. No. 31 at 5. Taibi denied that the Court’s
23
ENE Order required counsel to contact chambers if they were unable to safely meet and
24
confer because of the COVID-19 pandemic. Id. at 6; but see Dkt. 5 at 4 n.5 (“If counsel are
25
unable to safely meet and confer in person due to . . . the COVID-19 public emergency,
26
27
28
7
20-cv-1674-LAB (DEB)
1
counsel must jointly call Chambers prior to this deadline to explain the reason(s) they
2
cannot meet and confer at the subject premises and how they propose to accomplish the
3
objectives of the in-person requirement . . . .”).
4
Regarding the December 22, 2020 Order to Show Cause (concerning Banks’ failure
5
to appear at the December 18, 2020 ENE), Banks reported he was recovering from a head
6
injury at a rehabilitation facility. Dkt. No. 31 at 7–10. Banks said he “gave [Taibi] full
7
authority to do what he can to win the case or dismiss the case.” Id. at 10. Taibi agreed
8
Banks had “given me authority to file complaints for him; that he’s brought claims to me;
9
he’s given me the authority to settle cases as well, if it’s possible.” Id. at 11. Taibi and
10
Banks stated they had no direct contact while Banks was at the rehabilitation facility (from
11
October 2020 to January 22, 2021) but communicated through third parties and a courier.2
12
Id. at 10–15. When asked whether he could have participated in the December 18, 2020
13
ENE by phone, Banks responded he “was under strict care” and “[w]as constantly on
14
medication” that made him sleepy. Id. at 15–16.
15
Regarding the March 23, 2021 Order to Show Cause (concerning Banks’ failure to
16
appear at the February 26, 2021 ENE), Taibi explained he sent Banks a notice of that
17
hearing through a courier. Id. at 17–18. Banks agreed he received notice but “didn’t
18
recognize the date” because his “mind was in and out.” Id. at 17.
19
20
21
22
23
24
25
26
27
28
At the April 19, 2021 hearing, Taibi represented that while Banks was a patient at Villa
Rancho Bernardo Rehabilitation Center, they communicated through other persons and
Altares-Carter, a courier service. Dkt. No. 31 at 18. A search of the California Secretary of
State’s database reflects, however, that Altares-Carter, LLC was suspended on
March 18, 2019.
See
Business
Search,
CAL.
SEC.
OF
STATE,
https://businesssearch.sos.ca.gov/ (fill out fields to conduct a business search for
“Altares-Carter, LLC”) (last visited June 4, 2021).
2
8
20-cv-1674-LAB (DEB)
1
2
Following the April 19, 2021 hearing, and in response to the Court’s Order (Dkt. No.
30), Taibi lodged Banks’ Villa Rancho Bernardo Rehabilitation Center medical records.3
3
III.
4
The Court may sanction a party or its attorney if the party “(A) fails to appear at a
5
scheduling or other pretrial conference; (B) is substantially unprepared to participate . . . in
6
the conference; or (C) fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P.
7
16(f)(1). When Rule 16(f)(1) is triggered, the Court has broad discretion in fashioning an
8
appropriate sanction. See, e.g., Off. Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1397 (9th
9
Cir. 1993) (affirming imposition of monetary sanction under Rule 16(f) for party’s failure
10
to comply with order to appear for settlement conference). Additionally, the Local Rules
11
of this Court state “[s]anctions may be appropriate for an unexcused failure to attend [an
12
ENE conference].” CivLR 16.1(c)(1)(c).
13
DISCUSSION
A. December 7, 2020 Order to Show Cause
14
The Court sanctions Taibi $500 for the conduct at issue in the December 7, 2020
15
Order to Show Cause (i.e., Taibi’s violation of the Court’s September 23, 2020 Order
16
[Setting ENE] by failing to meet and confer with defense counsel at the subject premises
17
by the deadline set by the Court).4 Although Taibi claims this failure was attributable to
18
19
20
21
Banks’ Villa Rancho Bernardo Rehabilitation Center medical records are attached as
Exhibit 2 to this Order. Because of the sensitive nature of these records, the Court directs
the Clerk’s Office to file Exhibit 2 under seal.
3
22
23
24
25
26
27
28
The Court understands the parties agreed to a mutual waiver of fees in costs in connection
with the dismissal of this case. Dkt. No. 27 at 6. The Court, however, is imposing a punitive
sanction to vindicate the Court’s authority, not a sanction to compensate Defendants for
incurred fees or costs. See HM Elecs., Inc. v. R.F. Techs., Inc., 171 F. Supp. 3d 1020, 1027
(S.D. Cal. 2016) (“[I]f the sanction primarily aims to vindicate the authority of the court
by punishing the offending party, the sanction is punitive”; reversing award of
compensatory sanctions awarded to party that bargained away its right to recoup attorney’s
fees and costs).
4
9
20-cv-1674-LAB (DEB)
1
the COVID-19 pandemic, the Court’s Order gave the parties specific instructions for that
2
contingency:
3
If counsel are unable to safely meet and confer in person due to circumstances
relating to the COVID-19 public emergency, counsel must jointly call
Chambers prior to this deadline to explain the reason(s) they cannot meet at
the subject premises and how they propose to accomplish the objectives of the
in-person requirement by videoconference or other means.
4
5
6
7
Dkt. No. 5 at 4 n.5. That did not happen. Instead, the Court reset the meet and confer
8
deadline, allowing counsel a second chance to comply with the Court’s Order. Dkt. No. 7.
9
Thereafter, Taibi did not respond to three emails from defense counsel seeking to schedule
10
the meet and confer. Dkt. No. 9 at 4. 5 Although Taibi ultimately participated in an on-site
11
meet and confer, he did not do so until December 14, 2020, after the Court issued the
12
December 7, 2020 Order to Show Cause. Dkt. No. 12 at 2–4.
13
The Court finds Taibi’s failure to meet and confer as ordered is the product of his
14
failure to read and comply with the Court’s ENE Order. At the April 19, 2021 hearing on
15
the Orders to Show Cause, Taibi denied (incorrectly) that the Court’s ENE Order provided
16
instructions for the parties to follow if the COVID-19 pandemic prevented an on-site meet
17
and confer. Dkt. No. 31 at 6. Also, defense counsel sent Taibi three emails over a nine-day
18
period seeking to timely schedule the meet and confer required by the Court’s ENE Order.
19
Dkt. No. 9 at 4. Taibi did not respond to any of these emails. Id. Taibi’s failure to comply
20
with the Court’s ENE Order warrants sanctions.
21
Taibi has a history of not complying with court orders. See Jackson v. Juanita’s Taco
22
Shop, Inc., No. 18-cv-2679-H (LL), Dkt. No. 19 at 3 (sanctioning Taibi $200 because,
23
among other things, he failed to meet and confer and ignored defense counsel’s efforts to
24
25
26
27
28
Although Taibi claimed that he recalls trying to contact defense counsel and sent
responsive emails, he has not “brought any of those emails to the Court, unfortunately.”
Dkt. No. 31 at 4. Because of the equivocal nature of Taibi’s statement and his failure to
submit the responsive emails, the Court credits the declaration of defense counsel
representing that Taibi did not respond. Dkt. No. 9 at 4.
5
10
20-cv-1674-LAB (DEB)
1
schedule the meet and confer), Dkt. Nos. 31, 32 (issuing two additional Orders to Show
2
Cause after Taibi’s client did not appear at the ENE and after the parties still had not met
3
and conferred); Gay v. Mariscos El Pulpo II, Inc., No. 19-cv-0256-WQH (KSC), Dkt. No.
4
29 (sanctioning Taibi $683 ($483 to defense counsel and $200 to the Court) because he
5
failed to timely appear at an ENE and failed to appear at all for the subsequent Order to
6
Show Cause hearing); Mason v. Tic Bayside Inn, LLC, No. 19-cv-0392-W (LL), Dkt. Nos.
7
10, 17 (two Orders to Show Cause directed to Taibi for his failure to comply with the ENE
8
Order and his client’s failure to appear at the ENE). Taibi failed to take heed of prior
9
warnings and sanctions. The Court, therefore, sanctions Taibi $500 for his violations of the
10
ENE Order in this case. See, e.g., Wilson v. KRD Trucking W., No. 10-cv-00163-KJD-NJK,
11
2013 WL 836995, at *4 (D. Nev. Mar. 6, 2013) (“In determining the appropriate sanction,
12
the Court notes that a primary objective of Rule 16(f) is the deterrence of conduct that
13
unnecessarily consumes the Court’s time and resources that could have been more
14
productively utilized by litigants willing to follow the Court’s procedures.”).
15
B. December 22, 2020 Order to Show Cause
16
The Court sanctions Taibi $1000 in connection with the December 22, 2020 Order
17
to Show Cause. This Order to Show Cause arose out of Banks’ failure to appear at the
18
December 18, 2020 ENE. Dkt. No. 16. Taibi represented that Banks was unavailable to
19
participate in this ENE because he was recovering from head trauma suffered in a severe
20
physical attack on November 4, 2020 while residing at Villa Rancho Bernardo
21
Rehabilitation Center. See Dkt. No. 13 at 2 (describing Banks’ November 4, 2020
22
admission at Palomar Hospital following “severe blow to the head” at Villa Rancho
23
Bernardo Rehabilitation Center); Dkt. No. 31 at 8 (representing Banks was in “critical
24
condition” at Palomar Hospital due to “head trauma” after “he was hit over the head”
25
during an attack); and id. at 10 (explaining “Mr. Banks’ memory is a bit sketchy from the
26
. . . attack.”). Banks’ medical records do not substantiate this claim. Ex. 1, Ex. 2. A sanction
27
is appropriate because Taibi’s statements are inaccurate, he has a history of his clients
28
11
20-cv-1674-LAB (DEB)
1
failing to appear for ENEs, and he has not offered an adequate reason for Banks not
2
appearing at the December 18, 2020 ENE.
3
The Court further finds Taibi misrepresented Banks’ medical condition to excuse
4
Banks from the ENEs. Beginning with his telephone call to Chambers on November 9,
5
2020, Taibi made numerous representations to the Court that Banks was attacked and
6
suffered a critical head injury. See, e.g., Dkt. Nos. 8, 9 at 4, 12, 13, 31. While his earlier
7
representations (made prior to Banks’ January 22, 2021 discharge from Villa Rancho
8
Bernardo Rehabilitation Center where he had no direct communication with Taibi) could
9
conceivably be attributed to a misunderstanding, Taibi did not correct his statements after
10
he obtained Banks’ Villa Rancho Bernardo Rehabilitation Center medical records on
11
February 19, 2021. See Dkt. No. 19 (February 24, 2021 Taibi Decl. discussing his efforts
12
to continue the ENE due to Plaintiff’s medical condition and his February 19, 2021 receipt
13
of the complete copy of Banks’ Villa Rancho Bernardo Rehabilitation Center medical
14
records, but not correcting his earlier representations that Banks suffered a serious head
15
injury in an attack), Dkt. No. 27 (April 27, 2021 Taibi Decl. with similar representations
16
but not correcting his earlier statements regarding Banks’ medical condition). To the
17
contrary, Taibi continued to claim Banks sustained critical head trauma in an attack well
18
after he knew, or should have known, the medical records do not corroborate this claim.
19
Compare Dkt. No. 19 at 4 (“On February 19, 2021, Plaintiff’s counsel received a complete
20
copy of the Plaintiff’s medical records during his stay at [Villa Rancho Bernardo
21
Rehabilitation Center] . . . .”), with Dkt. No. 31 at 8 (Taibi’s statements during the April
22
19, 2021 OSC hearing that Banks was in “critical condition” at Palomar Hospital due to
23
“head trauma” because “he was hit over the head”), and Dkt. No. 31 at 10 (explaining “Mr.
24
Banks’ memory is a bit sketchy from the . . . attack.”).
25
Judges in this district have previously found Taibi’s representations to the Court to
26
be not credible and also expressed concerns regarding the accuracy of representations made
27
in IFP applications by Taibi’s clients. See, e.g., Gay v. Mariscos El Pulpo II, Inc., No. 19-
28
cv-0256-WQH (KSC), Dkt. No. 29 at 3 n.1. (finding “Taibi’s in-court representation …
12
20-cv-1674-LAB (DEB)
1
[was] clearly false”); Reyes v. A&J Gaslamp, LLC, No. 18-cv-2695-CAB (NLS), 2018 WL
2
6326374 at *2 (Dec. 4, 2018, S.D. Cal.) (After taking note of eight other ADA cases filed
3
by Taibi and Plaintiff Reyes, “the Court finds that the representations contained in Reyes
4
IFP application are not credible. That Plaintiff has only $100 in monthly income from
5
settlements despite having filed eight cases in this court and scores more in state court over
6
the past five years is simply implausible, particularly considering that all of the federal
7
cases, and presumably all of the state cases, seek statutory damages of at least $4,000 plus
8
attorney’s fees.”); Mason v. Ivanov, No. 18-cv-946-JAH (BGS), Dkt. Nos. 11, 18
9
(expressing concern over representations in IFP applications); Jackson v. Dang, 18-cv-
10
1380-CAB (WVG), Dkt. No. 9 (same); Gay v. Berumen, No. 18-cv-2661-CAB (BLM),
11
Dkt. No. 6 (same); Mason v. Tic Bayside Inn, LLC, No. 19-cv-0392-W (LL), Dkt. No. 21
12
at 3 (expressing concerns relating to Plaintiff’s involvement after counsel reported the
13
parties reached a settlement and taking judicial notice of Mason v. Ivanov, supra).
14
The Court’s credibility finding here, combined with Taibi’s history of making
15
questionable or untruthful statements to the Court and his history of failing to comply with
16
orders, including Judge Lopez and Judge Crawford’s orders requiring his clients attend
17
ENEs, warrant a $1000 sanction. Additionally, because Taibi has a history of
18
misrepresenting facts and making questionable representations that extends beyond this
19
case, the Court expands its referral to the Standing Committee on Discipline to include this
20
conduct.
21
The Court does not impose sanctions on Banks for failing to appear at the December
22
18, 2020 ENE. The record suggests a possibility that Banks may not have received notice
23
of the December 18, 2020 ENE conference because he and Taibi were not in direct contact
24
at the time. Dkt. No. 31 at 10–15. The Court, therefore, cannot find Banks had notice of
25
the December 18, 2020 ENE and failed to appear.
26
C. March 23, 2021 Order to Show Cause
27
Although Banks was no longer receiving in-patient treatment on February 26, 2021,
28
the Court will not impose sanctions for his failure to appear at the February 26, 2021 ENE.
13
20-cv-1674-LAB (DEB)
1
Banks explained he was confused about the date and apologized to the Court for his
2
mistake. Dkt. No. 26.
3
The Court also finds no basis to sanction Taibi for Banks’ failure to appear at the
4
February 26, 2021 ENE. Taibi stated at the ENE he did not know Banks’ whereabouts. The
5
record also reflects Taibi notified Banks about the ENE and expected him to attend. Dkt.
6
No. 26 at 4, 27 at 6–7. Sanctions are unwarranted under these circumstances.
7
The Court’s March 23, 2021 Order to Show Cause cites four new cases Taibi filed
8
on Banks’ behalf during the same timeframe at issue here, when Banks was allegedly
9
unavailable to participate in Court proceedings and when Banks and Taibi had no direct
10
communication. These four cases are pending before other judges and the undersigned are
11
not inclined to delve into the circumstances of their filing. The Standing Committee on
12
Discipline is better equipped to investigate these broader issues and the Court believes it
13
appropriate for it to do so. The Court, therefore, reaffirms its referral to the Standing
14
Committee on Discipline.
15
IV.
16
The three Orders to Show Cause issued in this case are not an aberration. Instead,
17
they are the latest in a troubling pattern of Taibi’s failures to comply with court orders, his
18
clients’ failures to attend hearings as ordered, and his failure to ensure representations to
19
the Court are truthful. Other judges of this Court have cautioned, sanctioned, and even
20
dismissed cases brought by Taibi for conduct like that at issue here. Unfortunately, all were
21
ineffective in preventing a recurrence.
CONCLUSION
22
The undersigned are concerned about Taibi’s representations in this case and others.
23
Because the Court’s concern extends beyond this case, the Court expands its referral to the
24
Standing Committee on Discipline to include this conduct.
25
The undersigned also share Judge Houston and Judge Lopez’s concerns about the
26
involvement of Taibi’s clients in the cases brought in their names. The sanctions imposed
27
here, however, redress only the conduct that occurred in this case. The Court defers to the
28
14
20-cv-1674-LAB (DEB)
1
Standing Committee on Discipline to investigate the larger issues involving Taibi’s clients’
2
involvement in the cases he has brought under their names.
3
Based on the foregoing, the Court:
4
1. Sanctions Taibi $500 in connection with the December 7, 2020 Order to Show
5
Cause;
6
2. Sanctions Taibi $1,000 in connection with the December 22, 2020 Orders to
7
Show Cause and expands the referral to the Standing Committee on Discipline to
8
include Taibi’s representations to the Court;
9
3. Does not impose monetary sanctions in connection with the March 23, 2021
10
Order to Show Cause, but reaffirms the referral to the Standing Committee on
11
Discipline; and
12
4. Pursuant to Cal. Bus. & Prof. Code §6068(o)(3), orders Taibi to report the
13
sanctions imposed by this Order to the California State Bar no later than July 6,
14
2021.
15
Taibi must pay the $1,500 in sanctions imposed in paragraphs one and two above to
16
Miscellaneous Fines, Penalties and Forfeitures, Not Otherwise Classified, Fund of the
17
United States Treasury on or before June 18, 2021.
18
IT IS SO ORDERED.
19
20
Dated: June 4, 2021
21
22
________________________________
Honorable Larry Alan Burns
United States District Judge
23
24
Dated: June 4, 2021
25
26
27
28
15
20-cv-1674-LAB (DEB)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?