Preview
1 POLSINELLI LLP
JONATHON E. COHN (SBN 136673)
2 jcohn@polsinelli.com
2049 Century Park East, Suite 2900
3 Los Angeles, CA 90067 8/16/2022
Telephone: (310) 556-1801
4 Facsimile: (310) 556-1802
5 POLSINELLI PC
SARA C. AVAKIAN (IL SBN 6321329)
6 Admitted Pro Hac Vice
savakian@polsinelli.com
7 150 N. Riverside Plaza, Suite 3000
Chicago, IL 60606
8 Telephone: (312) 873-2993
Facsimile: (312) 873-2921
9 Attorneys for Plaintiff
COUNTY OF SAN MATEO DBA SAN
10 MATEO MEDICAL CENTER D/P SNF
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SAN MATEO
13 COUNTY OF SAN MATEO dba SAN Case No. 19CIV06040
MATEO MEDICAL CENTER D/P SNF,
2049 Century Park East, Suite 2900
14 PLAINTIFF COUNTY OF SAN MATEO
PLAINTIFF, DBA SAN MATEO MEDICAL CENTER
D/P SNF’S CONSOLIDATED REPLY IN
Los Angeles, CA 90067
15
v. SUPPORT OF MOTION TO COMPEL
(310) 556-1801
Polsinelli LLP
16 DEFENDANT TO TENDER EXPERT
CALIFORNIA DEPARTMENT OF WITNESS FEES TO PLAINTIFF’S
17 PUBLIC HEALTH, and DOES 1 through EXPERT WITNESS, DR. KARL
10, inclusive, STEINBERG, AND REQUEST FOR
18 SANCTIONS IN THE AMOUNT OF
DEFENDANT, $3,390.00 AND OPPOSITION TO
19 DEFENDANT’S MOTION FOR RELIEF
20 Date: August 31, 2022
Time: 2:00 PM
21 Dept.: 2
Judge: Honorable Marie S. Weiner
22
Complaint Filed: October 11, 2019
23 Trial Date: January 27, 2022
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25
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1
CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF
Case No. 19CIV06040
090603\639422\84696207
1 Plaintiff, County of San Mateo dba San Mateo Medical Center D/P SNF (“San Mateo”),
2 submits the following Consolidated Reply in support of Plaintiff’s Motion to Compel Defendant to
3 Tender Expert Witness Fees to Plaintiff’s Expert Witness, Dr. Karl Steinberg, and Request for
4 Sanctions in the Amount of $3,390.00 and Opposition to Defendant’s Motion for Relief Pursuant
5 to Code of Civil Procedure Section 473.
6 I. INTRODUCTION
7 During Dr. Steinberg’s deposition and on multiple occasions following the deposition,
8 Plaintiff and Dr. Steinberg requested Defendant tender his expert witness fee. Only after the filing
9 of Plaintiff’s Motion to Compel (“Motion”) did Defendant tender payment. Absent the filing of
10 Plaintiff’s Motion, Defendant would not of acted reasonably to ensure the requested and owed fees
11 were timely tendered to Dr. Steinberg. Such delay – necessitating the additional fees and costs to
12 Plaintiff – warrants sanctions.
13 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY
2049 Century Park East, Suite 2900
14 Following the deposition of Dr. Steinberg and after multiple requests for payment, on June
Los Angeles, CA 90067
15 22, 2022 Dr. Steinberg confirmed he had not received payment for his deposition testimony on
(310) 556-1801
Polsinelli LLP
16 January 21, 2022. (Avakian Decl. ¶ 9). On June 24, 2022, Plaintiff filed its Motion to Compel
17 Defendant to Tender Expert Witness Fess to Plaintiff’s Expert Witness, Dr. Steinberg, and Request
18 for Sanctions in the Amount of $3,390.00 (“Motion”). On July 20, 2022, Defendant filed its
19 Opposition to Plaintiff’s Motion to Compel and Motion for Sanctions (“Opposition”) and Motion
20 for Relief Pursuant to Code of Civil Procedure Section 473 (“Motion for Relief”).
21 III. ARGUMENT
22 Sanctions in this case are proper and should be granted in favor of Plaintiff.
23 A. This court should exercise its discretion and impose sanctions under
Section 473.
24
ii The purpose of Section 473 makes it clear that sanctions are
25 appropriate in this case.
26 “The Legislature first enacted the discretionary relief provision found in section 473,
27 subdivision (b) in 1872, and the language of this provision has not changed appreciably since then.
28 (See Historical Note, 15 West's Ann.Code Civ. Proc. (1979 ed.) foll. § 473, p. 96 [“As originally
2
CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF
Case No. 19CIV06040
090603\639422\84696207
1 enacted in 1872, the section read: ‘The Court ... may, upon such terms as may be just, and upon
2 payment of costs, relieve a party, or his legal representatives, from a judgment, order, or other
3 proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect’ ”].)
4 Since 1872, California courts have consistently applied the discretionary relief provision of section
5 473 to voluntary judgments or dismissals.” (Zamora v. Clayborn Contracting Group, Inc. (2002)
6 28 Cal.4th 249, 254.) The purpose of the mandatory relief provision of Section 473(b) “was to
7 alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to
8 act on the part of their attorneys.” (Id. at p. 257, emphasis in original.)
9 The mandatory provision was added by amendment in 1991 to provide relief to the client
10 even when the attorney's mistake or neglect was not excusable. (Stats. 1991, ch. 1003, § 1 p. 4662.)
11 To determine whether the mistake or neglect was excusable, “... the court inquires whether
12 'a reasonably prudent person under the same or similar circumstances' might have made the same
13 error ....”(Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276, italics
2049 Century Park East, Suite 2900
14 added, citations omitted.)
Los Angeles, CA 90067
15 In analyzing the “reasonably prudent person” standard, the appellate court in Garcia v.
(310) 556-1801
Polsinelli LLP
16 Hejmaid stated:
17 Thus, the mandatory provision does not create a whole new class of mistakes or acts
of neglect by the attorney which result in the court having to grant relief. The
18 distinction in the statute noted by the Supreme Court's use of the term “reasonably
prudent person” describes the obvious intent of the Legislature to mandate relief
19 only from mistakes fairly imputable to the client, i.e., mistakes anyone could have
made. This is demonstrated by the language of the statute itself, which distinguishes
20 between the mandatory relief available to the client and the permissive relief
available under the original statute to “a party or ... legal representative.” (§ 473,
21 subd. (b).) Accordingly, any neglect of the attorney is imputed to the client, who
has the burden on the motion of showing this neglect was excusable. To determine
22 whether the mistake was excusable, the court will inquire whether the same error
might have been made by “ 'a reasonably prudent person under the same or similar
23 circumstances' ....” (Bettencourt, supra, 42 Cal.3d 270, 276, citations omitted.)
Conduct falling below the professional standard of care, such as failure to timely
24 object or to properly advance an argument, is not therefore excusable. To hold
otherwise would be to eliminate the express statutory requirement of excusability
25 and effectively eviscerate the concept of attorney malpractice. Garcia v. Hejmadi
(1997) 58 Cal.App.4th 674, 681-682.
26
27 “Excusable” is “not synonymous with a get-out-of-jail-free card for parties who later come
28 to regret past inaction or sitting on their rights. The inadvertence contemplated by the statute does
3
CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF
Case No. 19CIV06040
090603\639422\84696207
1 not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. It
2 is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take
3 timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable
4 judgment. (McClain v. Kissler (2019) 39 Cal.App.5th 399, 414, internal citations omitted.)
5 Here, Defendant did not “lose their day in court” and did not act as a “reasonably prudent
6 person” when Defendant neglected to ensure payment was processed when it had been requested
7 on numerous occasions, thus Defendant should not be entitled to a get-out-of-jail-free card. In fact,
8 in this case Defendant was permitted to continue with the deposition with the expectation that Dr.
9 Steinberg would be paid at a later date and then Defendant was permitted to use the transcript at
10 the time of trial in an attempt to impeach Dr. Steinberg. Then, after multiple requests Defendant
11 failed to timely tender payment to Dr. Steinberg. Since Section 473 cannot be used to remedy
12 attorney mistakes, see State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611–
13 612 [noting that relief normally will be denied when an alleged mistake of law is the result of
2049 Century Park East, Suite 2900
14 professional incompetence based upon general ignorance of the law or lack of knowledge of the
Los Angeles, CA 90067
15 rules], and Defendant’s actions were only cured as a result of the filing of the Motion to Compel,
(310) 556-1801
Polsinelli LLP
16 sanctions are proper.
17 iii Section 473 permits sanctions.
18 Section 473(c) authorizes the court, when granting relief from a default, default judgment
19 or dismissal, to “impose a penalty of no greater than on thousand dollars ($1,000) upon an offending
20 attorney or party,” “grant other relief as is appropriate,” and “the relief shall not be made conditional
21 upon the attorney's payment of compensatory legal fees or costs or monetary penalties imposed by
22 the court or upon compliance with other sanctions ordered by the court.” (Code Civ. Proc. § 473(c))
23 (emphasis added.) Accordingly, sanctions are expressly permitted by Section 473.
24 B. Sanctions are warranted even if Defendant has tendered payment to Dr.
Steinberg because they are reasonably calculated to achieve the purpose of
25 effectuating compliance with discovery.
26 Courts have consistently held that “[t]he sanctions the court may impose are such as are
27 suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery
28 he seeks but the court may not impose sanctions which are designed not to accomplish the objects
4
CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF
Case No. 19CIV06040
090603\639422\84696207
1 of the discovery but to impose punishment. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d
2 757, 782.) In other words, sanctions may not be punitive in nature and are permissible when
3 reasonably calculated to achieve the purpose of effectuating compliance with discovery. (See
4 Motown Record Corp. et al v. Superior Court (1984) 155 Cal.App.3d 482, 484.)
5 In this case, the requested sanctions are warranted as they are not punitive in nature. Even
6 if Dr. Steinberg’s fees have been tendered to him, Plaintiff is rightfully entitled to the fees and costs
7 expended to ensure Dr. Steinberg’s fees were paid.
8 C. Sanctions in the amount of $3,390.00 are appropriate.
9 Code of Civil Procedure § 2023.010 states that, “Misuses of the discovery process include,
10 but are not limited to the following: …(b) using a discovery method in a manner that does not
11 comply with its specified procedures; (c) employing discovery method in a manner or to an extent
12 that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and
13 expense…” (emphasis added). Here, Defendant failed to comply with the C.C.P. §§ 2034.430(b)
2049 Century Park East, Suite 2900
14 and 2034.450 which require that the party seeking to depose an expert witness pay the expert his
Los Angeles, CA 90067
15 or her expert witness fee at the time of the deposition or at least when requested by counsel after
(310) 556-1801
Polsinelli LLP
16 the deposition. Defendant abuses the statute and the Discovery Act and failed to act on Plaintiff’s
17 multiple requests for payment of Dr. Steinberg’s fees, which is sanctionable conduct. In fact, Ms.
18 Grainger confirms that it was not until June 28, 2022 that she “contacted the Accounting
19 Department regarding the missing payment” after she “received a copy of plaintiff’s motion to
20 compel.” (Grainger Decl. at ¶¶ 11-12.)
21 Section 2023.030(a) provides that:
22 The court may impose a monetary sanction ordering that one engaging in the misuse
of the discovery process, or any attorney advising that conduct, or both, pay the
23 reasonable expenses, including attorney’s fees, incurred by anyone as a result of that
conduct.
24
25 Defendant’s failure to timely tender payment to Dr. Steinberg abuses the Discovery Act and
26 is contrary to the Code of Civil Procedure requiring Defendant to pay Dr. Steinberg his expert
27 witness fees.
28
5
CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF
Case No. 19CIV06040
090603\639422\84696207
1 IV. CONCLUSION
2 For the reasons stated above, San Mateo requests this Court order Defendant to pay Dr.
3 Steinberg his expert witness fees in the amount of $2,800.00 and sanction Defendant in the amount
4 of $3,390.00
5
6 Dated: August 16, 2022 POLSINELLI LLP
7 By:
8 SARA C. AVAKIAN
Attorneys for Plaintiff,
9 COUNTY OF SAN MATEO dba SAN
MATEO MEDICAL CENTER D/P SNF
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2049 Century Park East, Suite 2900
14
Los Angeles, CA 90067
15
(310) 556-1801
Polsinelli LLP
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CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF
Case No. 19CIV06040
090603\639422\84696207
1 PROOF OF SERVICE
2 Case Name: County of San Mateo v. California Department of Public Health
3 Case Number: 19CIV06040
4 I, Mimi Mekonnen, declare as follows:
5
I am employed in Los Angeles County, Los Angeles, California. I am over the age of
6
eighteen years and not a party to this action. My business address is 2049 Century Park East, Suite
7 2900, Los Angeles, California 90067. On August 16, 2022 I served the within:
8
PLAINTIFF COUNTY OF SAN MATEO DBA SAN MATEO MEDICAL CENTER D/P
9 SNF’S CONSOLIDATED REPLY IN SUPPORT OF MOTION TO COMPEL
DEFENDANT TO TENDER EXPERT WITNESS FEES TO PLAINTIFF’S EXPERT
10 WITNESS, DR. KARL STEINBERG, AND REQUEST FOR SANCTIONS IN THE
AMOUNT OF $3,390.00 AND OPPOSITION TO DEFENDANT’S MOTION FOR
11 RELIEF
on the interested parties in this action addressed as follows:
12
13 Samona L. Taylor
Katherine Grainger
2049 Century Park East, Suite 2900
14 Deputy Attorney General
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000 | San Francisco, CA
Los Angeles, CA 90067
15
94102-7004
(310) 556-1801
Katherine.grainger@doj.ca.gov
Polsinelli LLP
16
samona.taylor@doj.ca.gov | Desk (415) 510-3593 | Fax (415)
17 703-5480
18 (BY U.S. MAIL) By placing such document(s) in a sealed envelope, with postage
thereon fully prepaid for first class mail, for collection and mailing at Polsinelli
19 LLP following ordinary business practice. I am readily familiar with the practice at
Polsinelli LLP for collection and processing of correspondence for mailing with
20 the United States Postal Service, said practice being that in the ordinary course of
business, correspondence is deposited in the United States Postal Service the same
21 day as it is placed for collection.
22 (BY ELECTRONIC MAIL) By transmitting such document(s) electronically from
my e-mail address, mmekonnen@polsinelli.com at Polsinelli LLP, to the person(s)
23 at the electronic mail addresses listed above.
24 I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct and that this declaration was executed on August 16, 2022, at Los Angeles,
25 California.
26
Mimi Mekonnen
Mimi Mekonnen
27
28
PROOF OF SERVICE
090603\639422\84696207
Preview
1 POLSINELLI LLP JONATHON E. COHN (SBN 136673) 2 jcohn@polsinelli.com 2049 Century Park East, Suite 2900 3 Los Angeles, CA 90067 8/16/2022 Telephone: (310) 556-1801 4 Facsimile: (310) 556-1802 5 POLSINELLI PC SARA C. AVAKIAN (IL SBN 6321329) 6 Admitted Pro Hac Vice savakian@polsinelli.com 7 150 N. Riverside Plaza, Suite 3000 Chicago, IL 60606 8 Telephone: (312) 873-2993 Facsimile: (312) 873-2921 9 Attorneys for Plaintiff COUNTY OF SAN MATEO DBA SAN 10 MATEO MEDICAL CENTER D/P SNF 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 COUNTY OF SAN MATEO dba SAN Case No. 19CIV06040 MATEO MEDICAL CENTER D/P SNF, 2049 Century Park East, Suite 2900 14 PLAINTIFF COUNTY OF SAN MATEO PLAINTIFF, DBA SAN MATEO MEDICAL CENTER D/P SNF’S CONSOLIDATED REPLY IN Los Angeles, CA 90067 15 v. SUPPORT OF MOTION TO COMPEL (310) 556-1801 Polsinelli LLP 16 DEFENDANT TO TENDER EXPERT CALIFORNIA DEPARTMENT OF WITNESS FEES TO PLAINTIFF’S 17 PUBLIC HEALTH, and DOES 1 through EXPERT WITNESS, DR. KARL 10, inclusive, STEINBERG, AND REQUEST FOR 18 SANCTIONS IN THE AMOUNT OF DEFENDANT, $3,390.00 AND OPPOSITION TO 19 DEFENDANT’S MOTION FOR RELIEF 20 Date: August 31, 2022 Time: 2:00 PM 21 Dept.: 2 Judge: Honorable Marie S. Weiner 22 Complaint Filed: October 11, 2019 23 Trial Date: January 27, 2022 24 25 26 27 28 1 CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF Case No. 19CIV06040 090603\639422\84696207 1 Plaintiff, County of San Mateo dba San Mateo Medical Center D/P SNF (“San Mateo”), 2 submits the following Consolidated Reply in support of Plaintiff’s Motion to Compel Defendant to 3 Tender Expert Witness Fees to Plaintiff’s Expert Witness, Dr. Karl Steinberg, and Request for 4 Sanctions in the Amount of $3,390.00 and Opposition to Defendant’s Motion for Relief Pursuant 5 to Code of Civil Procedure Section 473. 6 I. INTRODUCTION 7 During Dr. Steinberg’s deposition and on multiple occasions following the deposition, 8 Plaintiff and Dr. Steinberg requested Defendant tender his expert witness fee. Only after the filing 9 of Plaintiff’s Motion to Compel (“Motion”) did Defendant tender payment. Absent the filing of 10 Plaintiff’s Motion, Defendant would not of acted reasonably to ensure the requested and owed fees 11 were timely tendered to Dr. Steinberg. Such delay – necessitating the additional fees and costs to 12 Plaintiff – warrants sanctions. 13 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY 2049 Century Park East, Suite 2900 14 Following the deposition of Dr. Steinberg and after multiple requests for payment, on June Los Angeles, CA 90067 15 22, 2022 Dr. Steinberg confirmed he had not received payment for his deposition testimony on (310) 556-1801 Polsinelli LLP 16 January 21, 2022. (Avakian Decl. ¶ 9). On June 24, 2022, Plaintiff filed its Motion to Compel 17 Defendant to Tender Expert Witness Fess to Plaintiff’s Expert Witness, Dr. Steinberg, and Request 18 for Sanctions in the Amount of $3,390.00 (“Motion”). On July 20, 2022, Defendant filed its 19 Opposition to Plaintiff’s Motion to Compel and Motion for Sanctions (“Opposition”) and Motion 20 for Relief Pursuant to Code of Civil Procedure Section 473 (“Motion for Relief”). 21 III. ARGUMENT 22 Sanctions in this case are proper and should be granted in favor of Plaintiff. 23 A. This court should exercise its discretion and impose sanctions under Section 473. 24 ii The purpose of Section 473 makes it clear that sanctions are 25 appropriate in this case. 26 “The Legislature first enacted the discretionary relief provision found in section 473, 27 subdivision (b) in 1872, and the language of this provision has not changed appreciably since then. 28 (See Historical Note, 15 West's Ann.Code Civ. Proc. (1979 ed.) foll. § 473, p. 96 [“As originally 2 CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF Case No. 19CIV06040 090603\639422\84696207 1 enacted in 1872, the section read: ‘The Court ... may, upon such terms as may be just, and upon 2 payment of costs, relieve a party, or his legal representatives, from a judgment, order, or other 3 proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect’ ”].) 4 Since 1872, California courts have consistently applied the discretionary relief provision of section 5 473 to voluntary judgments or dismissals.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 6 28 Cal.4th 249, 254.) The purpose of the mandatory relief provision of Section 473(b) “was to 7 alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to 8 act on the part of their attorneys.” (Id. at p. 257, emphasis in original.) 9 The mandatory provision was added by amendment in 1991 to provide relief to the client 10 even when the attorney's mistake or neglect was not excusable. (Stats. 1991, ch. 1003, § 1 p. 4662.) 11 To determine whether the mistake or neglect was excusable, “... the court inquires whether 12 'a reasonably prudent person under the same or similar circumstances' might have made the same 13 error ....”(Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276, italics 2049 Century Park East, Suite 2900 14 added, citations omitted.) Los Angeles, CA 90067 15 In analyzing the “reasonably prudent person” standard, the appellate court in Garcia v. (310) 556-1801 Polsinelli LLP 16 Hejmaid stated: 17 Thus, the mandatory provision does not create a whole new class of mistakes or acts of neglect by the attorney which result in the court having to grant relief. The 18 distinction in the statute noted by the Supreme Court's use of the term “reasonably prudent person” describes the obvious intent of the Legislature to mandate relief 19 only from mistakes fairly imputable to the client, i.e., mistakes anyone could have made. This is demonstrated by the language of the statute itself, which distinguishes 20 between the mandatory relief available to the client and the permissive relief available under the original statute to “a party or ... legal representative.” (§ 473, 21 subd. (b).) Accordingly, any neglect of the attorney is imputed to the client, who has the burden on the motion of showing this neglect was excusable. To determine 22 whether the mistake was excusable, the court will inquire whether the same error might have been made by “ 'a reasonably prudent person under the same or similar 23 circumstances' ....” (Bettencourt, supra, 42 Cal.3d 270, 276, citations omitted.) Conduct falling below the professional standard of care, such as failure to timely 24 object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability 25 and effectively eviscerate the concept of attorney malpractice. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681-682. 26 27 “Excusable” is “not synonymous with a get-out-of-jail-free card for parties who later come 28 to regret past inaction or sitting on their rights. The inadvertence contemplated by the statute does 3 CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF Case No. 19CIV06040 090603\639422\84696207 1 not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. It 2 is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take 3 timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable 4 judgment. (McClain v. Kissler (2019) 39 Cal.App.5th 399, 414, internal citations omitted.) 5 Here, Defendant did not “lose their day in court” and did not act as a “reasonably prudent 6 person” when Defendant neglected to ensure payment was processed when it had been requested 7 on numerous occasions, thus Defendant should not be entitled to a get-out-of-jail-free card. In fact, 8 in this case Defendant was permitted to continue with the deposition with the expectation that Dr. 9 Steinberg would be paid at a later date and then Defendant was permitted to use the transcript at 10 the time of trial in an attempt to impeach Dr. Steinberg. Then, after multiple requests Defendant 11 failed to timely tender payment to Dr. Steinberg. Since Section 473 cannot be used to remedy 12 attorney mistakes, see State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611– 13 612 [noting that relief normally will be denied when an alleged mistake of law is the result of 2049 Century Park East, Suite 2900 14 professional incompetence based upon general ignorance of the law or lack of knowledge of the Los Angeles, CA 90067 15 rules], and Defendant’s actions were only cured as a result of the filing of the Motion to Compel, (310) 556-1801 Polsinelli LLP 16 sanctions are proper. 17 iii Section 473 permits sanctions. 18 Section 473(c) authorizes the court, when granting relief from a default, default judgment 19 or dismissal, to “impose a penalty of no greater than on thousand dollars ($1,000) upon an offending 20 attorney or party,” “grant other relief as is appropriate,” and “the relief shall not be made conditional 21 upon the attorney's payment of compensatory legal fees or costs or monetary penalties imposed by 22 the court or upon compliance with other sanctions ordered by the court.” (Code Civ. Proc. § 473(c)) 23 (emphasis added.) Accordingly, sanctions are expressly permitted by Section 473. 24 B. Sanctions are warranted even if Defendant has tendered payment to Dr. Steinberg because they are reasonably calculated to achieve the purpose of 25 effectuating compliance with discovery. 26 Courts have consistently held that “[t]he sanctions the court may impose are such as are 27 suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery 28 he seeks but the court may not impose sanctions which are designed not to accomplish the objects 4 CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF Case No. 19CIV06040 090603\639422\84696207 1 of the discovery but to impose punishment. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 2 757, 782.) In other words, sanctions may not be punitive in nature and are permissible when 3 reasonably calculated to achieve the purpose of effectuating compliance with discovery. (See 4 Motown Record Corp. et al v. Superior Court (1984) 155 Cal.App.3d 482, 484.) 5 In this case, the requested sanctions are warranted as they are not punitive in nature. Even 6 if Dr. Steinberg’s fees have been tendered to him, Plaintiff is rightfully entitled to the fees and costs 7 expended to ensure Dr. Steinberg’s fees were paid. 8 C. Sanctions in the amount of $3,390.00 are appropriate. 9 Code of Civil Procedure § 2023.010 states that, “Misuses of the discovery process include, 10 but are not limited to the following: …(b) using a discovery method in a manner that does not 11 comply with its specified procedures; (c) employing discovery method in a manner or to an extent 12 that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and 13 expense…” (emphasis added). Here, Defendant failed to comply with the C.C.P. §§ 2034.430(b) 2049 Century Park East, Suite 2900 14 and 2034.450 which require that the party seeking to depose an expert witness pay the expert his Los Angeles, CA 90067 15 or her expert witness fee at the time of the deposition or at least when requested by counsel after (310) 556-1801 Polsinelli LLP 16 the deposition. Defendant abuses the statute and the Discovery Act and failed to act on Plaintiff’s 17 multiple requests for payment of Dr. Steinberg’s fees, which is sanctionable conduct. In fact, Ms. 18 Grainger confirms that it was not until June 28, 2022 that she “contacted the Accounting 19 Department regarding the missing payment” after she “received a copy of plaintiff’s motion to 20 compel.” (Grainger Decl. at ¶¶ 11-12.) 21 Section 2023.030(a) provides that: 22 The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both, pay the 23 reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. 24 25 Defendant’s failure to timely tender payment to Dr. Steinberg abuses the Discovery Act and 26 is contrary to the Code of Civil Procedure requiring Defendant to pay Dr. Steinberg his expert 27 witness fees. 28 5 CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF Case No. 19CIV06040 090603\639422\84696207 1 IV. CONCLUSION 2 For the reasons stated above, San Mateo requests this Court order Defendant to pay Dr. 3 Steinberg his expert witness fees in the amount of $2,800.00 and sanction Defendant in the amount 4 of $3,390.00 5 6 Dated: August 16, 2022 POLSINELLI LLP 7 By: 8 SARA C. AVAKIAN Attorneys for Plaintiff, 9 COUNTY OF SAN MATEO dba SAN MATEO MEDICAL CENTER D/P SNF 10 11 12 13 2049 Century Park East, Suite 2900 14 Los Angeles, CA 90067 15 (310) 556-1801 Polsinelli LLP 16 17 18 19 20 21 22 23 24 25 26 27 28 6 CONSOLIDATED REPLY ISO MOTION TO COMPEL AND OPPOSITION TO MOTION FOR RELIEF Case No. 19CIV06040 090603\639422\84696207 1 PROOF OF SERVICE 2 Case Name: County of San Mateo v. California Department of Public Health 3 Case Number: 19CIV06040 4 I, Mimi Mekonnen, declare as follows: 5 I am employed in Los Angeles County, Los Angeles, California. I am over the age of 6 eighteen years and not a party to this action. My business address is 2049 Century Park East, Suite 7 2900, Los Angeles, California 90067. On August 16, 2022 I served the within: 8 PLAINTIFF COUNTY OF SAN MATEO DBA SAN MATEO MEDICAL CENTER D/P 9 SNF’S CONSOLIDATED REPLY IN SUPPORT OF MOTION TO COMPEL DEFENDANT TO TENDER EXPERT WITNESS FEES TO PLAINTIFF’S EXPERT 10 WITNESS, DR. KARL STEINBERG, AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $3,390.00 AND OPPOSITION TO DEFENDANT’S MOTION FOR 11 RELIEF on the interested parties in this action addressed as follows: 12 13 Samona L. Taylor Katherine Grainger 2049 Century Park East, Suite 2900 14 Deputy Attorney General Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 | San Francisco, CA Los Angeles, CA 90067 15 94102-7004 (310) 556-1801 Katherine.grainger@doj.ca.gov Polsinelli LLP 16 samona.taylor@doj.ca.gov | Desk (415) 510-3593 | Fax (415) 17 703-5480 18 (BY U.S. MAIL) By placing such document(s) in a sealed envelope, with postage thereon fully prepaid for first class mail, for collection and mailing at Polsinelli 19 LLP following ordinary business practice. I am readily familiar with the practice at Polsinelli LLP for collection and processing of correspondence for mailing with 20 the United States Postal Service, said practice being that in the ordinary course of business, correspondence is deposited in the United States Postal Service the same 21 day as it is placed for collection. 22 (BY ELECTRONIC MAIL) By transmitting such document(s) electronically from my e-mail address, mmekonnen@polsinelli.com at Polsinelli LLP, to the person(s) 23 at the electronic mail addresses listed above. 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on August 16, 2022, at Los Angeles, 25 California. 26 Mimi Mekonnen Mimi Mekonnen 27 28 PROOF OF SERVICE 090603\639422\84696207