Elizondo v. Seaworld Parks & Entertainment, Inc. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Artemisa ELIZONDO, Case No.: 20-cv-00829-GPC-BGS 12 Plaintiff, ORDER REGARDING JANUARY 20, 13 v. 2021 OSC 14 SEAWORLD PARKS & ENTERTAINMENT, INC., et al., 15 Defendant. [ECF No. 14] 16 17 Pending before the Court is an Order to Show Cause (“OSC”), which required 18 Plaintiff’s counsel, Raymond Ghermezian, to file a declaration in response to this OSC, 19 explaining (1) his failure to appear at the January 15, 2021 Discovery Conference, as 20 directed in the Court’s January 13, 2021 minute order; (2) his alleged failure to respond to 21 Defendant’s Interrogatories and Requests for Production; (3) his alleged failure to attend 22 the December 17, 2020 depositions; and (4) showing cause why sanctions should not be 23 imposed. (See ECF No. 14.) The Court also required Defendant’s counsel, Guillermo 24 Marrero, to file a declaration in response to this OSC, detailing (1) Plaintiff’s counsel’s 25 alleged failure to respond to Defendant’s Interrogatories and Requests for Production; 26 (2) Plaintiff’s counsel’s alleged failure to attend the December 17, 2020 depositions; and 27 (3) any sanctions sought. (Id.) 28 1 I. INTRODUCTION 2 On July 20, 2020, the Court held an Early Neutral Evaluation and Case Management 3 Conference. (ECF No. 9.) The case did not settle. (Id.) On July 21, 2020, the Court issued 4 its Scheduling Order. (ECF No. 10.) On November 18, 2020, despite finding that Plaintiff 5 Artemisa Elizondo (“Plaintiff”) and Defendant Seaworld Parks and Entertainment, Inc., 6 (“Defendant”) failed to justify any extension of the dates listed in the Scheduling Order, 7 the Court extended the Fact Discovery deadline until December 21, 2020 to allow the 8 Plaintiff to respond to Defendant’s Interrogatories and Requests for Production 9 (“Defendant’s written discovery requests”) and to allow the parties to conduct the 10 depositions of Plaintiff’s mother, Plaintiff’s sister, and Defendant’s employees. (ECF No. 11 12.) 12 On January 13, 2021, pursuant to Judge Skomal’s Chambers’ Rule V(A), 13 Defendant’s counsel contacted the Chambers of Judge Skomal ex parte and indicated that 14 Mr. Ghermezian had been unresponsive to a request to meet and confer regarding his 15 alleged failure to respond to Defendant’s written discovery requests and also his alleged 16 failure to attend the depositions of Plaintiff’s mother and sister, which were scheduled for 17 December 17, 2020. (See ECF Nos. 13; 14 at 1–2.) The Court then set a call for January 18 15, 2021 to discuss the status of the remaining discovery. (ECF Nos. 13.) On January 15, 19 2021, the Court attempted to convene the parties for the Telephonic Discovery Conference, 20 however, only Mr. Marrero participated on the call. (ECF No. 14 at 2.) 21 On January 20, 2021, the Court ordered Mr. Ghermezian to show cause as to why 22 he should not be sanctioned for his failure to attend the January 15, 2021 Telephonic 23 Discovery Conference, as well as for his alleged failure to respond to Defendant’s written 24 discovery requests and his alleged failure to attend the December 17, 2020 depositions. 25 (Id. at 1–2.) Mr. Ghermezian was ordered to respond to the Court’s OSC by February 3, 26 27 28 1 2021. (Id. at 2.) The Court also ordered Mr. Marrero to file a declaration that addressed 2 these allegations and any sanctions that he sought. (Id.) 3 On January 27, 2021, Mr. Marrero filed his declaration in response to the Court’s 4 OSC. (ECF No. 15.) In this declaration, Mr. Marrero explained in detail the events giving 5 rise to his allegations that Mr. Ghermezian failed to respond to his written discovery 6 requests and failed to attend the December 17, 2020 depositions. (Id. at 2–8.) Mr. Marrero 7 then requested sanctions for this conduct and described the amount in fees and costs that 8 he has incurred. (Id. at 8–10.) Mr. Marrero also requested that Plaintiff’s mother and sister 9 be prevented from testifying at trial due to Mr. Ghermezian’s conduct. (Id. at 10.) 10 Since nothing was filed by Mr. Ghermezian on or before the February 3, 2021 11 deadline, the Chambers of Judge Skomal contacted Mr. Ghermezian on February 4, 2021 12 to inquire whether he was going to respond to the Court’s OSC. (ECF No. 16.) After Mr. 13 Ghermezian informed the Court that he was going to respond to the Court’s OSC, the Court 14 gave an additional week for Mr. Ghermezian to file his declaration in response to the 15 Court’s OSC. (Id.) 16 On February 10, 2021, Mr. Ghermezian filed his declaration in response to the 17 Court’s OSC. (ECF No. 17.) In this declaration, Mr. Ghermezian stated that he was 18 diagnosed with COVID-19 on January 5, 2021 and was under quarantine until February 8, 19 2021. (Id. at ¶¶ 3, 4.) Mr. Ghermezian indicated that he missed the January 15, 2021 20 conference due to his illness and that even though he had designated another attorney to 21 appear on his behalf, she failed to do so. (Id. at ¶ 6.) Mr. Ghermezian stated that he “fully 22 and completely” responded to “all outstanding [written] discovery at issue. There are no 23 further issues at hand to my knowledge.” (Id. at ¶ 8.) Mr. Ghermezian claimed that he is 24 25 26 1 Mr. Ghermezian was specifically ordered to address the following in his response to the Court’s Order to Show 27 Cause: “(1) his failure to appear at the January 15, 2021 Discovery Conference, as directed in the Court’s January 13, 2021 minute order; (2) his alleged failure to respond to Defendant’s Interrogatories and Requests for Production; 28 (3) his alleged failure to attend the December 17, 2020 depositions; and (4) showing cause why sanctions should 1 not refusing to engage in discovery nor is he refusing to make witnesses available for 2 depositions, and that Mr. Marrero “continues to place roadblocks on mutual discovery.” 3 (Id. at ¶¶ 7, 9.) Mr. Ghermezian states that he has been attempting to depose Defendant’s 4 employees “to no avail” and that “despite notices and numerous emails, [Mr. Marrero] still 5 refuses to provide dates for defendant employees.” (Id. at ¶ 10.) Mr. Ghermezian claims 6 that Mr. Marrero refuses to allow him to take any depositions and requests a hearing to 7 schedule the remaining depositions. (Id. at ¶¶ 11, 12.) 8 On February 12, 2021, the Court indicated that Mr. Ghermezian’s declaration did 9 not specifically address Mr. Marrero’s claim that he failed to respond timely to Defendant’s 10 written discovery requests, nor did he specifically address Mr. Marrero’s allegation as to 11 why he, or Plaintiff’s mother and sister, failed to attend the properly noticed depositions 12 on December 17, 2020. (ECF No. 18 at 1–2.) The Court then ordered Mr. Ghermezian to 13 file an additional response2 to the Court’s OSC. (Id. at 2.) 14 On February 19, 2021, Mr. Ghermezian filed his additional response to the Court’s 15 OSC. (ECF No. 19.) Mr. Ghermezian apologized for the delay in responding to 16 Defendant’s written discovery requests, but explained that he “experienc[ed] tremendous 17 difficulty communicating with the Plaintiff” and immediately served his responses once he 18 received communication from his client. (Id. at ¶ 5.) Mr. Ghermezian claims that Mr. 19 Marrero knew at all times that Plaintiff’s mother and sister would not appear at the 20 depositions and will gladly appear for depositions on mutually agreeable dates and times 21 once depositions for Defendant’s employees are also scheduled. (Id. at ¶ 8.) Mr. 22 23 24 2 Mr. Ghermezian was ordered to specifically address the following in his additional response: “(1) his alleged failure to respond to Defendant’s written discovery requests and provide specific details to substantiate his claim 25 that he has fully responded to these requests; (2) his alleged failure to attend the December 17, 2020 depositions; (3) his alleged failure to present witnesses at the December 17, 2020 depositions; and (4) showing cause why 26 sanctions should not be imposed.” (ECF No. 18 at 2.) Additionally, Mr. Ghermezian was also ordered to state any 27 objections he may have as to: “(a) the sanctions requested by Defendant’s Counsel; (b) the amount of hours worked by Defendant’s Counsel and his staff; (c) the hourly rate of Defendant’s Counsel and his staff; (d) the amount of 28 attorney fees requested; and (e) the costs incurred by Defendant’s Counsel. Any exhibits attached must be 1 Ghermezian states that sanctions are not warranted, since Plaintiff’s mother and sister 2 asked him to represent them for deposition purposes and Mr. Marrero knew at all times 3 that they would not appear at the depositions. (Id. at ¶ 10.) 4 On March 10, 2021, pursuant to Judge Skomal’s Chambers’ Rule V(A), Defendant’s 5 counsel contacted the Chambers of Judge Skomal ex parte and indicated that Mr. 6 Ghermezian had been unresponsive to a request to meet and confer regarding his written 7 discovery responses. (ECF No. 22.) The Court set a Telephonic Discovery Conference 8 for March 12, 2021 to discuss Plaintiff’s responses. (See id.) After being in contact with 9 the Chambers of Judge Skomal prior to the Discovery Conference, both parties requested 10 to extend Plaintiff’s response deadline until March 19, 2021 to allow for Plaintiff’s counsel 11 to amend his responses to Defendant’s written discovery requests. (ECF No. 23.) The 12 Court granted the parties request3 and then the Court moved the Discovery Conference 13 from March 12, 2021 until March 22, 2021 at 2:00 PM. (Id.) 14 On March 22, 2021, the Court did not receive a joint phone call, as instructed in the 15 Court’s minute order, and then contacted counsel for both parties to inquire whether they 16 were going to attend the scheduled Discovery Conference. (ECF Nos. 23; 24 at 2.) The 17 Court was able to speak with Defendant’s counsel. (ECF No. 24 at 2.) However, the 18 Chambers of Judge Skomal was unable to get a hold of Mr. Ghermezian. (Id.) The Court 19 was told by Mr. Ghermezian’s assistant that he was in a Summary Judgment hearing and 20 was unable to speak. (Id.) The Court then rescheduled the Discovery Conference and 21 ordered Mr. Ghermezian to explain his failure to attend the conference. (Id.) 22 The Court held a Telephonic Discovery Conference on March 25, 2021, where the 23 parties discussed Mr. Marrero’s objections to certain discovery issues. (ECF No. 25.) Mr. 24 Marrero first objected to Mr. Ghermezian’s responses to Defendant’s written discovery 25 26 3 Mr. Ghermezian indicated to the Court that he agreed to supplement his responses to the written 27 discovery requests, where warranted, by March 19, 2021. (ECF No. 23.) Mr. Marrero indicated to the Court that he will not pursue sanctions for the written discovery indicated in the Court’s OSC, if Mr. 28 1 requests because it contained the language “Discovery and investigation continuing. 2 Plaintiff reserves the right to supplement and/or amend this response.” (Id.) Mr. 3 Ghermezian agreed to amend those responses by removing this language. (Id.) Mr. 4 Marrero then indicated that he will withdraw his sanctions motion concerning Mr. 5 Ghermezian’s responses once Plaintiff amends and removes this language from his 6 responses. (Id.) The Court allowed Mr. Ghermezian to amend his responses by March 29, 7 20214 and would then deem Mr. Marrero’s motion for sanctions regarding Mr. 8 Ghermezian’s responses withdrawn. (Id.) 9 At the Discovery Conference, Mr. Marrero also objected to Mr. Ghermezian’s 10 Requests for Production related to Defendant’s 30(b)(6) witnesses. (Id.) The Court 11 deemed the dispute resolved, after Mr. Ghermezian and Mr. Marrero agreed to limit the 12 Requests for Production to the ones that are relevant to the interior part of the restaurant 13 where the incident occurred, and indicated that the depositions of Defendant’s 30(b)(6) 14 witnesses will go forward on March 31, 2021. (Id.) Mr. Marrero then objected to 15 Plaintiff’s deposition topic no. 3 regarding Defendant’s 30(b)(6) witnesses. (Id.) Mr. 16 Ghermezian agreed to withdraw deposition topic no. 3 and the Court deemed the dispute 17 resolved. (Id.) As for Mr. Ghermezian’s failure to attend the March 22, 2021 discovery 18 conference (See ECF Nos. 23, 24), the Court accepted his explanation (ECF No. 25). 19 II. DISCUSSION 20 The Court ordered Mr. Ghermezian to respond to its OSC, explaining (1) his failure 21 to appear at the January 15, 2021 Discovery Conference; (2) his alleged failure to respond 22 to Defendant’s Interrogatories and Requests for Production; (3) his alleged failure to attend 23 the December 17, 2020 depositions; and (4) showing cause why sanctions should not be 24 imposed. (ECF No. 14.) The Court addresses each issue in turn. 25 26 27 4 Although Mr. Ghermezian indicated that he will amend his responses by March 26, 2021, the Court provided additional time and allowed Plaintiff’s counsel to amend his responses by March 29, 2021 at 28 1 a. January 15, 2021 Conference 2 i. Legal Standard 3 Federal Rule of Civil Procedure 16 permits the court to order attorneys and 4 unrepresented parties to appear for one or more pretrial conferences for several purposes, 5 including “establishing early and continuing control so that the case will not be protracted 6 because of lack of management” and “discouraging wasteful pretrial activities.” Fed. R. 7 Civ. P. 16(a). “At any pretrial conference, the court may consider and take appropriate 8 action” on several matters, including “controlling and scheduling discovery” and 9 “facilitating in other ways the just, speedy, and inexpensive disposition of the action.” See 10 Fed. R. Civ. P. 16(c)(2)(F), (P). 11 “When confronted with a party’s defiance of its management authority, a district 12 court is necessarily vested with considerable discretion in deciding whether to impose 13 sanctions on that party, and, if so, in determining what form the sanctions should take.” 14 Jones v. Winnepesaukee Realty, 990 F.2d 1, 5 (1st Cir. 1993). Rule 16(f) authorizes the 15 court to issue any just sanctions if a party, or its attorney, “fails to appear at a scheduling 16 or other pretrial conference” or “fails to obey a scheduling or other pretrial order.” Fed. R. 17 Civ. P. 16(f)(1)(A), (C). The Southern District of California’s Local Civil Rules also 18 authorizes magistrate judges to impose sanctions against attorneys for failing to appear as 19 ordered. See Civ. L. R. 83.1. 20 Further, “[i]nstead of or in addition to any other sanction, the court must order” the 21 attorney or party “to pay the reasonable expenses—including attorney’s fees—incurred 22 because of any noncompliance with this rule, unless the noncompliance was substantially 23 justified or other circumstances make an award unjust.” Fed. R. Civ. P. 16(f)(2); see also 24 Sedgwick v. Unknown K-9 Handler, 2013 U.S. Dist. LEXIS 77063, *11–*12 (S.D. Cal. 25 Apr. 2013) (citing Ninth Circuit cases demonstrating the circuit court has repeatedly upheld 26 monetary sanctions imposed for failure to comply with orders regarding settlement 27 conferences). 28 /// 1 ii. Analysis 2 Mr. Ghermezian was ordered to show cause as to why he should not be sanctioned 3 for his failure to attend the January 15, 2021 Telephonic Discovery Conference. (ECF No. 4 14 at 2.) In response, Mr. Ghermezian declared that he was diagnosed with COVID-19 on 5 January 5, 2021 and was under quarantine until February 8, 2021. (ECF No. 17 at ¶¶ 3, 4.) 6 Mr. Ghermezian indicated that he missed the January 15, 2021 conference due to his illness 7 and that even though he had designated another attorney to appear on his behalf, she failed 8 to appear. (Id. at ¶ 6.) 9 Here, Mr. Ghermezian tested positive for COVID-19 on January 5, 2021, eight days 10 prior to the Court’s minute order setting the Telephonic Discovery Conference. (See ECF 11 No. 17 at 4.) COVID-19 is a respiratory illness that can have a wide array of effects on a 12 person, from mild and moderate symptoms to severe and debilitating symptoms.5 It is 13 reasonable to believe that Mr. Ghermezian was unable to attend the scheduled conference 14 due to contracting the virus. Thus, the Court finds that Mr. Ghermezian’s failure to appear 15 at the January 15, 2021 Telephonic Discovery Conference was justified and does not 16 warrant sanctions. 17 b. Mr. Ghermezian’s Alleged Failure to Respond to Defendant’s Written Discovery Requests 18 i. Legal Standard 19 “Federal Rule of Civil Procedure 37 authorizes the district court, in its discretion, to 20 impose a wide range of sanctions when a party fails to comply with the rules of discovery 21 or with court orders enforcing those rules.” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 22 585, 589 (9th Cir. 1983). Under Rule 37(b), if a party fails to comply with a court order, 23 the Court may impose any of the sanctions authorized under Rule 37(b)(2)(A)(i)–(vi). The 24 Court may also order sanctions if “a party, after being properly served with interrogatories 25 26 27 5 See U.S. Department of Health & Human Services, Symptoms, CENTERS FOR DISEASE CONTROL AND 28 PREVENTION (March 8, 2021, 11:38 AM), https://www.cdc.gov/coronavirus/2019-ncov/symptoms- 1 under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, 2 objections, or written response.” Fed. R. Civ. P. 37(d)(1)(A)(ii). The Court may also grant 3 reasonable expenses, including attorney’s fees, for a party’s untimely response or objection 4 to written discovery requests under Rule 37. Mann v. Newport Tankers Corp., 96 F.R.D. 5 31, 33–34 (S.D.N.Y. 1982) (“The plaintiff’s failure to timely and appropriately respond to 6 defendants’ interrogatories, or timely object, despite a more than adequate period of time 7 afforded him to do so has made this motion necessary and has unduly burdened defendants 8 and this much burdened court without substantial justification. [. . .] Accordingly, [. . .], 9 movants are granted reasonable expenses, including attorneys’ fees[.]”) In lieu of, or in 10 addition to, the sanctions listed in Rule 37(b)(2)(A)(i)–(vi), the Court must award 11 reasonable expenses, including attorneys’ fees, caused by the failure, unless it concludes 12 that the failure was substantially justified or that other circumstances make an award of 13 expenses unjust. Fed. R. Civ. P. 37(d)(3). 14 ii. Analysis 15 Mr. Ghermezian was ordered to show cause as to why he should not be sanctioned 16 for his alleged failure to respond to Defendant’s written discovery requests, which were 17 served on October 8, 2020. (ECF Nos. 14 at 2; 15 at 2.) In response to the Court’s OSC, 18 Mr. Ghermezian informed the court that he has “fully and completely responded to all 19 outstanding discovery at issue. There are no further issues at hand to my knowledge.” 20 (ECF Nos. 17 at ¶ 8; 19 at ¶ 5.) Mr. Ghermezian apologized for the delay in responding to 21 the written discovery requests and indicated that he experienced “tremendous difficulty 22 communicating with the plaintiff.” (ECF No. 19 at ¶ 5.) Mr. Ghermezian indicated that 23 he immediately finalized and served Plaintiff’s responses once he received communication 24 from his client. (Id.) 25 Here, Mr. Ghermezian has not shown substantial justification for his failure to 26 respond to Defendant’s written discovery requests. Defendant served its written discovery 27 requests on October 8, 2020. (ECF No. 11 at 3.) On November 18, 2020, in the interest 28 of justice, the Court gave Plaintiff an additional 30 days to respond to the written discovery 1 requests, despite indicating that neither party had justified the extension of any deadlines. 2 (ECF No. 12.) Yet, on January 13, 2021, Defendant’s counsel contacted the Chambers of 3 Judge Skomal ex parte to set a telephonic conference and indicated that Mr. Ghermezian 4 had still not responded to its discovery requests. (ECF Nos. 13; 14 at 1.) It was not until 5 February 8, 2021 where Mr. Ghermezian claims to have fully and completely responded to 6 the written discovery at issue. (ECF Nos. 17 at ¶ 8; 19 at ¶ 5.) 7 The only justification that Mr. Ghermezian gave for failing to respond is that he 8 experienced “tremendous difficulty communicating with the plaintiff” and that he 9 immediately served Plaintiff’s responses once he received communication from his client. 10 (ECF No. 19 at ¶ 5.) However, this is the first time this issue has been brought to the 11 Court’s attention. There has been no indication that Mr. Ghermezian had any difficulty 12 communicating with his client. In fact, in the parties Joint Motion to Continue Discovery 13 and Pre-Trial Deadlines, there was no mention of Mr. Ghermezian having any difficulty in 14 communicating with the Plaintiff or that the difficulty in communicating with the Plaintiff 15 was the reason for why he had not responded to Defendant’s written discovery requests. 16 (See ECF No. 11.) 17 Mr. Ghermezian did not provide any other justification for his failure to respond or 18 for his failure to follow the Court’s November 18, 2020 order, which indicated that he 19 needed to provide his responses to Defendant’s written discovery requests by December 20 21, 2020. (See ECF Nos. 12 at 5 [November order]; 17 [Mr. Ghermezian’s first response 21 to OSC]; 19 [Mr. Ghermezian’s second response to OSC].) Mr. Ghermezian’s conduct 22 regarding the responses to Defendant’s written discovery requests has shown the Court that 23 he has not acted diligently during discovery and that he has not “take[n] all steps necessary 24 to bring an action to readiness for trial.” Civ. L. R. 16.1(b). Therefore, the Court finds that 25 Mr. Ghermezian has not provided substantial justification for his sanctionable conduct. 26 See Raygoza v. City of Fresno, 297 F.R.D. 603, 608 (E.D. Cal. 2014) (reasoning that 27 pursuant to Rule 37, the party facing sanctions has the burden to demonstrate the failure 28 was substantially justified). 1 However, the Court finds that there are circumstances present that would make an 2 award of expenses unjust, since Mr. Marrero has withdrawn his motion for sanctions as to 3 Mr. Ghermezian’s failure to respond. In his responses to the Court’s OSC, Mr. Ghermezian 4 declared that he had “fully and completely” responded on February 8, 2021. (ECF Nos. 17 5 at ¶ 8; 19 at ¶ 5.) However, Mr. Marrero objected to Mr. Ghermezian’s responses that 6 contained the language: “Discovery and investigation continuing. Plaintiff reserves the 7 right to supplement and/or amend this response.” (ECF Nos. 23; 25.) Nevertheless, Mr. 8 Marrero indicated that he will not pursue sanctions for the written discovery once Mr. 9 Ghermezian amends and removes this language from his responses. (Id.) Mr. Ghermezian 10 stated that he will amend certain responses to Defendant’s written discovery requests by 11 removing this language. (ECF No. 25.) The Court then allowed Mr. Ghermezian to amend 12 his amended responses by March 29, 2021 and deemed Mr. Marrero’s motion for sanctions 13 regarding Mr. Ghermezian’s responses to Defendant’s written discovery requests 14 withdrawn. (Id.) 15 Accordingly, with regard to for Mr. Ghermezian’s alleged failure to respond to the 16 written discovery requests, the Court finds that there are other circumstances that would 17 make an award of expenses unjust and that monetary sanctions are inappropriate under 18 these circumstances. 19 c. Mr. Ghermezian’s Alleged Failure to Attend December 17, 2020 Depositions 20 i. Legal Standard 21 Federal Rule of Civil Procedure 30(d)(2) allows for “[t]he court [to] impose an 22 appropriate sanction—including the reasonable expenses and attorney’s fees incurred by 23 any party—on a person who impedes, delays, or frustrates the fair examination of the 24 deponent.” Rule 30(d)(2) sanctions do not require a finding of bad faith. Robinson v. 25 Chefs’ Warehouse, No. 315CV05421RSKAW, 2017 WL 1064981, at *2 (N.D. Cal. Mar. 26 2017). 27 28 1 Further, pursuant to Federal Rule of Civil Procedure 37, the Court may order 2 sanctions if a party fails to appear for the deposition after being served with proper notice. 3 Fed. R. Civ. P. 37(d)(1)(A)(i); see also Wyle, 709 F.2d at 589. Under Rule 37(d), if a party 4 fails to comply with a court order and does not appear at his deposition, the Court may 5 impose any of the sanctions authorized under Rule 37(b)(2)(A), (B) and (C). In lieu of, or 6 in addition to, these sanctions, the Court must award reasonable expenses (including 7 attorneys’ fees) caused by the failure, unless it concludes that the failure was substantially 8 justified or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 9 37(d)(3). 10 Pursuant to Ninth Circuit precedent, a party fails to appear for deposition, within the 11 meaning of Rule 37(d), where the party unilaterally cancels the deposition immediately 12 prior to the date on which it is noticed. See Henry v. Gill Industries, Inc., 983 F.2d 943, 13 947 (9th Cir.1993) (rejecting plaintiff’s contention that he “never ‘failed to appear’ for his 14 noticed deposition because each such deposition was vacated” one business day before the 15 date it was properly noticed). Some courts have held that parties may not escape sanctions 16 simply by notifying the attorney who noticed the deposition that they will not appear. See 17 Rodriguez v. State Farm Lloyds, No. 5:15-CV-85, 2016 WL 10804244, at *1 (S.D. Tex. 18 Jan. 2016) (indicating that a party may not escape sanctions by simply notifying an attorney 19 that they will not appear at a deposition, in a case where the deponent gave five days’ notice 20 that she would not appear. Court did not sanction Plaintiff for other reasons.); Peyman v. 21 Rayan, No. 2:09-CV-01384-KJD, 2011 WL 976925, at *1 (D. Nev. Mar. 2011) (“Some 22 courts have held that parties may not escape sanctions simply by notifying the attorney 23 who noticed the deposition that they will not appear.”); see also Wayne D. Brazil, 7 24 Moore’s Federal Practice § 37.91 (Matthew Bender 3d ed.) (“Such notification does not 25 excuse a party’s failure to appear, and will not serve as a substitute for a motion for a 26 protective order.”). However, in determining whether Rule 37(d) sanctions are warranted, 27 the Court may consider “whether reasonable notice was given in cancelling a party’s 28 deposition.” See Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 592 (S.D. Tex. 2011). 1 In order to cancel or stay a properly-noticed deposition, the opposing party must 2 obtain a protective order before the deposition date in order to relieve the deponent or her 3 counsel of the duty to appear the properly noticed deposition. See Pioche Mines Consol., 4 Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964) (finding that unless a proposed deponent 5 obtains a court order that postpones or dispenses with his duty to appear for a noticed 6 deposition, the duty to appear remains, even if a motion for such an order is on file), cert. 7 denied, 380 U.S. 956 (1965); Koninlike Phillips Elec. N.V. v. KXD Tech., Inc., 2007 WL 8 3101248, at *18 (D. Nev. Oct. 2007) (“Absent a protective order or an order staying the 9 deposition, the party, including its officers or Rule 30(b)(6) deponents, is required to appear 10 for a properly noticed deposition.”), appeal dismissed, 539 F.3d 1039 (9th Cir. 2008); 8A 11 Wright, Miller & Marcus, Federal Practice and Procedure § 2035 (3d ed. 2012) (“At least 12 with regard to depositions, the [protective] order should ordinarily be obtained before the 13 date set for the discovery, and failure to move at that time has been held to preclude 14 objection later[.]”); see also Fed. R. Civ. P. Rule 37(d)(2). 15 ii. Analysis 16 Mr. Ghermezian was ordered to address Mr. Marrero’s allegation that he, as well as 17 Plaintiff’s mother and sister, failed to attend the properly noticed depositions scheduled for 18 December 17, 2020. (ECF No. 14 at 2.) In response, Mr. Ghermezian claimed that he has 19 not refused to make witnesses available for depositions and will gladly appear for 20 depositions on mutually agreeable dates and times, once depositions for Defendant’s 21 employees are also scheduled. (ECF Nos. 17 at ¶ 9; 19 at ¶¶ 6, 8.) Mr. Ghermezian alleged 22 that Mr. Marrero “refuses to allow [him] to take any depositions” and “still refuses to 23 provide dates for defendant[’s] employees.” (ECF Nos. 17 at ¶¶ 10, 11; 19 at ¶¶ 7, 9.) 24 Further, Mr. Ghermezian stated that sanctions are not warranted since Mr. Marrero knew 25 at all times that no one would appear at the December 17, 2020 depositions. (ECF No. 19 26 at ¶¶ 8, 10.) 27 After reviewing Mr. Ghermezian’s two declarations in response to the Court’s OSC, 28 as well as the attached exhibits, the Court finds that Mr. Ghermezian failed to appear at the 1 properly noticed depositions scheduled for December 17, 2020. Further, the Court 2 concludes that Mr. Ghermezian’s failure to appear was not “substantially justified” and 3 finds that there are no “other circumstances mak[ing] an award of expenses unjust.” See 4 Fed. R. Civ. P. 37(d). 5 The only factor that appears to have contributed to Mr. Ghermezian’s nonappearance 6 was the parties’ inability to schedule depositions for Defendant’s employees.7 (ECF Nos. 7 17; 19.) Mr. Ghermezian claimed that Mr. Marrero “refuses to allow [him] to take any 8 depositions of defendant employees” and “still refuses” to provide dates for defendant 9 employees despite notices and numerous emails. (ECF Nos. 17 at ¶¶ 10, 11; 19 at ¶¶ 7, 9.) 10 Mr. Ghermezian cited to Exhibit 2 in support of these statements. (ECF No. 17 at ¶ 10.) 11 Exhibit 2 consists of emails between counsel dating from March 6, 2020 until December 12 13, 2020. (See ECF No. 17 at 5–14.) Exhibit 2 includes two emails sent from Mr. 13 Marrero’s law clerk, Alberto Aldrete, to Mr. Ghermezian wherein Mr. Aldrete provided 14 dates for the depositions of Defendant’s employees. (ECF No. 17 at 9, 12.) On October 15 8, 2020, in response to Mr. Ghermezian’s request for deposition dates, Mr. Aldrete 16 responded: 17 Defendant will produce two PMKs, Melissa Sells and Abigale Childress. Ms. Sells is available for deposition between Nov. 2nd through Nov. 12th, except 18 Friday Nov. 6th. We have not received confirmation of Ms. Childress 19 availability for depo, but we expect she will also be available between Nov. 2nd through Nov. 12th. We will confirm Ms. Childress’ availability ASAP. 20 21 22 23 6 On December 1, 2020, Defendant’s counsel served Mr. Ghermezian with notice requiring Plaintiff’s 24 mother and sister to appear for depositions via remote video conference. (ECF No. 15-1 at 69–82.) The 25 deposition notices were sent to Mr. Ghermezian by first class mail at the address listed on the complaint. (ECF Nos. 1 at 8; 15-1 at 81.) 26 7 This is shown by Mr. Ghermezian’s December 2, 2020 email to Mr. Marrero’s law clerk, Alberto Aldrete, 27 wherein he stated “[w]e have been waiting for months to get dates to depose defendant employees without luck. We will not produce plaintiff’s mother or sister for a deposition until I receive dates for defendant 28 1 (ECF No. 17 at 9.) Then on December 4, 2020, Mr. Aldrete emailed deposition dates for 2 three of Defendant’s employees to Mr. Ghermezian and asked for confirmation on whether 3 the depositions of Plaintiff’s mother and sister will occur on December 17, 2020. (ECF 4 No. 17 at 12.) Mr. Aldrete sent a follow up email to Mr. Ghermezian on December 8, 2020 5 regarding the dates he provided for Defendant’s employees and again asked for 6 confirmation on whether Plaintiff’s mother and sister will be deposed on December 17, 7 2020. (ECF No. 17 at 13.) 8 Contrary to Mr. Ghermezian’s allegations, Defendant’s counsel appeared willing to 9 allow Mr. Ghermezian to take the depositions of Defendant’s employees and did provide 10 deposition dates on two occasions. Thus, according to Mr. Ghermezian’s own reasoning, 11 he should have attended the December 17, 2020 depositions since he was in fact given the 12 deposition dates that he was requesting. 13 Even if Mr. Marrero “continue[d] to place roadblocks on mutual discovery” or 14 prevented the depositions of Defendant’s employees from taking place, as Mr. Ghermezian 15 claims (See ECF Nos. 17 at ¶¶ 7, 10, 11; 19 at ¶¶ 4, 7, 9), this is not substantial justification 16 for his failure to attend the December 17, 2020 depositions. See Rangel v. Gonzalez 17 Mascorro, 274 F.R.D. 585, 594 (S.D. Tex. 2011) (finding that Defendant’s counsel did not 18 provide substantial justification for his failure appear at the noticed depositions, where 19 Defendant’s counsel canceled Defendant’s deposition in retaliation to Plaintiff’s counsel’s 20 improper termination of Plaintiff’s deposition. The Court indicated that Defendant’s 21 counsel made the situation worse and the “proper course of action would have been to 22 proceed with his clients’ depositions.”). Under these circumstances, Mr. Ghermezian 23 should have proceeded with the depositions as noticed, regardless of Mr. Marrero’s 24 conduct. See id. 25 Mr. Ghermezian also claimed that Mr. Marrero knew all along that he, as well as 26 Plaintiff’s mother and sister, would not appear at the noticed depositions. (ECF No. 19 at 27 ¶¶ 8, 10.) Mr. Ghermezian perhaps is referring to the email he sent to Mr. Aldrete on 28 December 8, 2020, wherein Mr. Ghermezian indicated that “no one will be produced” at 1 the December 17, 2020 depositions. (ECF No. 15-1 at 85.) Although this shows that Mr. 2 Ghermezian did provide Mr. Marrero with notice that he was not going to appear, a “lawyer 3 has no authority unilaterally to cancel a deposition that is reasonably noticed [. . .] which 4 is a step only the court is empowered to take.” Richardson v. BNSF Ry. Co., No. CIV.A. 5 13-5415, 2014 WL 5317866, at *2 (E.D. La. Oct. 2014). 6 A proposed deponent and her counsel have a duty to appear at the properly noticed 7 deposition, unless they “obtained a court order that postpones or dispenses with [their] duty 8 to appear.” See Pioche Mines Consol., Inc., 333 F.2d at 269; see also Paige v. Consumer 9 Programs, Inc., 248 F.R.D. 272, 277 (C.D. Cal. 2008) (“[P]laintiff’s failure to appear was 10 not substantially justified since plaintiff, as discussed above, failed to file a motion for a 11 protective order under Rule 26(c) before the date of the deposition[.]”); Koninlike Phillips 12 Elec. N.V., 2007 WL 3101248, at *18 (“Absent a protective order or an order staying the 13 deposition, the party, including its officers or Rule 30(b)(6) deponents, is required to appear 14 for a properly noticed deposition.”); see also Fed. R. Civ. P. Rule 37(d)(2). Simply 15 notifying Mr. Marrero, the attorney who noticed the deposition, that he would not appear 16 at the December 17, 2020 depositions did not relieve Mr. Ghermezian of his duty to appear. 17 See Pioche Mines Consol., Inc., 333 F.2d at 269; Rodriguez, 2016 WL 10804244, at *1 18 (indicating that a party may not escape sanctions by simply notifying an attorney that they 19 will not appear at a deposition, in a case where the deponent gave five days’ notice that she 20 would not appear. Court did not sanction Plaintiff for other reasons.). And since Mr. 21 Ghermezian never obtained a court order that postponed or dispensed his duty to appear, 22 he was required to attend the December 17, 2020 depositions. 23 Mr. Ghermezian’s notification that he was not going to appear at the depositions is 24 not a substitute for this court order and does not prevent the Court from still issuing 25 sanctions against him for his failure to attend. See Rodriguez, 2016 WL 10804244, at *1 26 (indicating that a party may not escape sanctions by simply notifying an attorney that they 27 will not appear at a deposition.); Koninklike Philips Elecs. N.V., 2007 WL 3101248, at *18 28 (indicating that the party subject to a properly noticed deposition was required to appear 1 “[a]bsent a protective order or an order staying the deposition[.]”); see also Wayne D. 2 Brazil, 7 Moore’s Federal Practice § 37.91 (Matthew Bender 3d ed.) (“Such notification 3 does not excuse a party’s failure to appear, and will not serve as a substitute for a motion 4 for a protective order.”). 5 Mr. Ghermezian indicated that “[Plaintiff’s] witnesses will gladly appear for 6 depositions on mutually agreeable dates and times once all defense employee[s’] 7 depositions are also scheduled.”8 (ECF No. 19 at ¶ 8.) However, Mr. Ghermezian’s 8 willingness to schedule these depositions does not preclude the imposition of sanctions due 9 to his failure to appear. The Ninth Circuit has held that a district court’s award of sanctions 10 against a party for failing to appear at his deposition is appropriate even when the opposing 11 party’s counsel is willing to work with the party to reschedule the deposition and when the 12 deposition is ultimately taken. See Henry, 983 F.2d at 947. This is because when a party 13 fails to appear for his deposition, the opposing party is prejudiced by that failure and later 14 compliance does not “cure the effects” of the failure to appear. See id.; see also G-K 15 Properties v. Redevelopment Agency of San Jose, 577 F.2d 645, 647–48 (9th Cir. 1978). 16 Accordingly, the Court finds that Mr. Ghermezian engaged in sanctionable conduct 17 for failing to attend the December 17, 2020 depositions. Further, the Court finds that 18 sanctions are appropriate under these circumstances, since Mr. Ghermezian did not provide 19 substantial justification for his failure to attend and there are no “other circumstances [that] 20 make an award of expenses unjust.” See Fed. R. Civ. P. 37(d). 21 d. Sanctions Regarding Mr. Ghermezian’s Failure to Attend Depositions 22 i. Legal Standard 23 The Court has great discretion in the imposition of discovery sanctions. See Yeti by 24 Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); Wyle, 709 F.2d 25 at 589. “Under Rule 37(d)(3), a noncompliant party may be ordered to pay the other party’s 26 27 8 The Court has already ordered the parties to complete the depositions of Plaintiff’s mother, Plaintiff’s 28 1 ‘reasonable expenses[,’ including attorney fees,] caused by the failure to comply with the 2 rules of discovery.” Raya v. Calbiotech, No. 3:18-CV-2643-WQH-AHG, 2019 WL 3 4962978, at *4 (S.D. Cal. Oct. 2019), reconsideration denied, No. 3:18-CV-2643-WQH- 4 AHG, 2019 WL 11504688 (S.D. Cal. Nov. 2019) (citing Fed. R. Civ. P. 37(d)(3)); see Fed. 5 R. Civ. P. 37(d)(3). There is no need to find that the failure to attend was “willful.” See 6 Lew v. Kona Hospital, 754 F.2d 1420, 1427 (9th Cir. 1985) (“Even a negligent failure to 7 allow reasonable discovery may be punished.”). When requesting attorney’s fees, the 8 moving party bears the burden of proving that the request is reasonable. Hensley v. 9 Eckerhart, 461 U.S. 424, 437 (1983) (“[T]he fee applicant bears the burden of establishing 10 entitlement to an award and documenting the appropriate hours expended and hourly 11 rates.”). Counsel should make a good faith effort to exclude from a fee request hours that 12 are “excessive, redundant, or otherwise unnecessary[.]” Id. at 434. 13 Fee awards, if awarded, are subject to two conditions. Superior Consulting Servs., 14 Inc. v. Steeves-Kiss, No. 17-CV-06059-EMC, 2018 WL 2183295, at *1 (N.D. Cal. May 15 2018), aff’d by 786 Fed. Appx. 648 (2019) (citing Fed. R. Civ. P. 11(c)(2), (4)). The award 16 must be limited to fees directly resulting from the violation, and the fees awarded must be 17 reasonable. Fed. R. Civ. P. 37(b)(2)(C) (“the court must order the disobedient party, the 18 attorney advising that party, or both to pay the reasonable expenses, including attorney’s 19 fees, caused by the failure”); Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 20 1186, n. 5 (2017) (“Rule-based and statutory sanction regimes similarly require courts to 21 find such a causal connection before shifting fees.”) (quoting Fed. R. Civ. P. 37(b)(2)(C)). 22 A “court can shift only those attorney’s fees incurred because of the misconduct at issue. . 23 . [The] causal connection . . . is appropriately framed as a but-for test: The complaining 24 party [] may recover only the portion of his fees that he would not have paid but for the 25 misconduct.” Goodyear Tire, 137 S. Ct. at 1186–87. 26 Pursuant to Rule 37(b)(2)(B), the District Court can also sanction a party for its 27 failure to comply with a discovery order by “prohibiting that party from introducing 28 designated matters into evidence.” See In re TMI Litig., 193 F.3d 613, 721 (3d Cir. 1999), 1 amended, 199 F.3d 158 (3d Cir. 2000). However, courts have also been reluctant in 2 excluding evidence due to a party’s failure to comply with a discovery order and consider 3 it to be an “extreme sanction.” See id. at 721 (“[T]he exclusion of evidence for violation 4 of a discovery order is an ‘extreme sanction.’”); Kotes v. Super Fresh Food Markets, Inc., 5 157 F.R.D. 18, 20 (E.D. Pa. 1994) (“The exclusion of critical evidence is an extreme 6 sanction which is not normally imposed absent a showing of willful deception or flagrant 7 disregard of a court order by the proponent of the evidence.”). 8 Terminating sanctions are “severe and are only justified where the failure to produce 9 stems from the ‘willfulness or bad faith’ of the offending party.” Rodriguez v. Cty. of San 10 Diego, No. 19-CV-0424-L-MDD, 2020 WL 4696734, at *3 (S.D. Cal. Aug. 2020) (citing 11 Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011)), report and recommendation 12 adopted, No. 3:19-CV-424-L-MDD, 2020 WL 5230493 (S.D. Cal. Sept. 2020); see also 13 Pioche Mines Consol., Inc., 333 F.2d at 269. 14 ii. Analysis 15 Mr. Marrero requested that the Court order Mr. Ghermezian to pay $6,225.00 in 16 attorney fees and $1,849.30 in expenses for his failure to attend the December 17, 2020 17 depositions, for a total amount of $8,074.30. (ECF No. 15 at 9–10.) Mr. Marrero also 18 requested to preclude Plaintiff’s mother and sister from testifying at trial. (Id. at 10.) 19 The Court finds that precluding Plaintiff’s mother and sister from testifying at trial 20 is not warranted, since it is a harsh penalty that should only be issued in extreme 21 circumstances and there is a less drastic sanction available to the Court for Mr. 22 Ghermezian’s conduct. See In re TMI Litig., 193 F.3d at 721 (“[T]he exclusion of evidence 23 for violation of a discovery order is an ‘extreme sanction.’”); Rigsbee v. City & Cty. of 24 Honolulu, No. CV 17-00532 HG-RT, 2019 WL 984275, at *5 (D. Haw. Feb. 2019) (“The 25 Court must also consider the availability of less drastic options rather than precluding the 26 witness from testifying at trial.”). 27 As described above, the Court found that Mr. Ghermezian did not substantially 28 justify his failure to attend the December 17, 2020 depositions and there are no 1 circumstances that make an award of expenses unjust. See Fed. R. Civ. P. 37(d)(3). Thus, 2 the Court has the authority to award reasonable expenses, including attorney fees, caused 3 by Mr. Ghermezian’s failure to attend. 4 The attorney fees that Mr. Marrero claimed are associated with Mr. Ghermezian’s 5 failure to attend the December 17, 2020 depositions total $6,225.00, which includes fees 6 for himself and his law clerk, Alberto Aldrete. (ECF No. 15 at 9–10.) Mr. Marrero has a 7 billable rate of $650.00 per hour and requests 6.2 hours of counsel’s labor leading up to the 8 Court’s OSC and 1.5 hours of counsel’s labor anticipated in relation to Plaintiff’s counsel 9 failure to attend the depositions,9 for a total of $5,005.00. (ECF No. 15 at 9–10.) Alberto 10 Aldrete has a billable rate of $200.00 per hour and requests 6.1 hours10 of labor leading up 11 to the Court’s OSC, for a total of $1,220.00. (ECF No. 15 at 9.) As for expenses, Mr. 12 Marrero provided an invoice11 from Esquire Legal Services that breaks down the $1,849.30 13 that he requests. (ECF No. 15-2 at 63.) 14 Here, the Court finds that sanctions are appropriate based on Mr. Ghermezian’s 15 conduct in not attending the scheduled depositions. However, since the parties were 16 ordered to proceed with these same depositions (See ECF No. 21), the Court, in its 17 18 9 In describing his work leading up to the Court’s Order to Show Cause, Mr. Marrero indicated that he 19 reviewed the discovery issue concerning the deposition schedule, drafted meet and confer letters regarding the depositions, communicated with Plaintiff’s counsel via email and phone, attended the deposition of 20 the witnesses as scheduled, attended the January 15, 2020 conference call, and prepared the instant 21 declaration. (ECF No. 15 at 9.) Further, Mr. Marrero anticipates 1.5 hours of his time will be dedicated to any subsequent hearings, preparation of documents, and meet and confer efforts related to Plaintiff’s 22 counsel’s failure to attend the deposition. (Id. at 9–10.) 23 10Mr. Marrero indicates that his law clerk, Alberto Aldrete, prepared the deposition subpoenas, communicated with Esquire Legal Services to coordinate the location of the depositions and 24 attendance via video conference, drafted meet and confer letters regarding deposition schedule, 25 communicated with Plaintiff’s counsel via email and phone, prepared deposition exhibits, prepared chronology of SeaWorld’s efforts to depose witnesses, and prepared the instant declaration. (ECF No. 26 15 at 9.) 27 11 The Esquire Legal Services’ invoice provides a list of its services that it provided, which includes certificates of non-appearance, colored exhibits with tabs, “Process & Compliance,” and “Spanish 28 1 discretion, limits sanctions to only the fees and expenses that were directly caused by Mr. 2 Ghermezian’s failure to attend the depositions. See Goodyear Tire & Rubber Co., 137 S. 3 Ct. at 1186 n.5 (indicating that there needs to be a causal link between the misconduct and 4 fees when the Court is acting under its inherent authority). Thus, the Court finds that the 5 following fees and expenses were directly caused by Mr. Ghermezian’s conduct: (1) the 6 time Mr. Marrero actually spent attending the December 17, 2020 depositions; (2) the 7 reasonable expenses incurred regarding those depositions; and (3) the time Mr. Marrero 8 spent preparing the portion of his declaration that dealt with Mr. Ghermezian’s failure to 9 attend the depositions. 10 In determining whether the fees requested are reasonable, “[t]he most useful starting 11 point [ ] is the number of hours reasonably expended on the litigation multiplied by a 12 reasonable hourly rate.” Hensley, 461 U.S. at 433. Here, Mr. Ghermezian failed to oppose 13 the hourly rate requested by Mr. Marrero despite having two opportunities to do so (See 14 ECF Nos. 17, 19), and as a result, Mr. Ghermezian is precluded from objecting to Mr. 15 Marrero’s hourly rate. See Dominguez v. Quigley’s Irish Pub, Inc., 897 F. Supp. 2d 674, 16 681 (N.D. Ill. 2012) (“Failure to object to a fee petition with specificity may preclude 17 objection.”). 18 However, before the Court can find that Mr. Marrero’s hourly rate is reasonable, Mr. 19 Marrero needs to provide justification for his hourly rate. See Gates v. Deukmejian, 987 20 F.2d 1392, 1401 (9th Cir. 1992) (court has duty “to independently review plaintiffs’ fee 21 request even absent defense objections”); see also Camacho v. Bridgeport Fin., Inc., 523 22 F.3d 973, 980 (9th Cir. 2008) (reasoning that it is the fee applicant’s burden in establishing 23 the reasonableness of the hourly rate and that providing the Court with the fee applicant’s 24 declaration, and nothing else, is insufficient). Thus, to justify his hourly rate, Mr. Marrero 25 must provide the Court with a supplemental declaration describing his experience as an 26 attorney and prior awards in similar cases where he was awarded fees with an hourly rate 27 of $650.00. See Hensley, 461 U.S. at 430 n.3 (indicating that the amount of fees can be 28 1 determined by, among other factors, the “the experience, reputation, and ability of the 2 attorneys” and “awards in similar cases”). 3 Mr. Marrero also failed to provide the Court with a detailed breakdown regarding 4 the hours expended on attending the December 17, 2020 deposition, as well as the hours 5 spent preparing the portion of his declaration that dealt with Mr. Ghermezian’s failure to 6 attend, and failed to provide any detailed explanation for the expenses listed in Exhibit 17. 7 (See ECF No. 15-2 at 63); see also In re Daou Sys., Inc., Sec. Litig., No. CIV.98-CV-1537- 8 L-AJB, 2008 WL 1832428, at *2 (S.D. Cal. Apr. 2008) (“It is the requesting counsel’s 9 burden to submit detailed time records justifying the attorneys’ fees requested.”); Intel 10 Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 623 (9th Cir. 1993) (finding that an award of 11 attorney fees without elaboration, particularly without findings that hours expended were 12 reasonable, is inadequate, where requesting party submits mere summaries of hours 13 worked). 14 Therefore, Mr. Marrero must file a supplemental declaration, no later than May 27, 15 2021, that details: (1) Mr. Marrero’s hourly rate and why it is reasonable; (2) a breakdown 16 of the time that Mr. Marrero spent waiting at the December 17, 2020 depositions as a result 17 of Mr. Ghermezian’s failure to attend; (3) an explanation for each expense listed in Exhibit 18 17 and why these expenses are reasonable, including a specific explanation for why a 19 Spanish interpreter was used and why the expense for the interpreter service is reasonable; 20 and (4) a breakdown of the time that Mr. Marrero spent preparing the portion of his 21 declaration that dealt with Mr. Ghermezian’s failure to attend the depositions. 22 Mr. Ghermezian may file a declaration, no later than June 3, 2021, if he objects to: 23 (1) the time Mr. Marrero actually spent attending the December 17, 2020 depositions; (2) 24 the reasonable expenses incurred regarding those depositions; or (3) the time Mr. Marrero 25 spent preparing the portion of his declaration that dealt with Mr. Ghermezian’s failure to 26 attend the depositions. 27 /// 28 /// 1 ||T. CONCLUSION 2 Accordingly, the Court finds that sanctions are appropriate under these 3 ||circumstances. The Court also finds that Mr. Ghermezian did not provide substantial 4 ||justification for his failure to attend and there are no other circumstances that make an 5 ||award of expenses unjust. However, the Court will determine the appropriate amount of 6 ||monetary sanctions and the due date for payment following receipt of a supplemental 7 declaration from Mr. Marrero and a response from Mr. Ghermezian, if any, as explained 8 || above. 9 IT IS SO ORDERED. 10 || Dated: May 13, 2021 p / / i on. Bernard G. Skomal 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28