ADRIANA CRUZ v. NIKE RETAIL SERVICES INC (2024)

ORDER FOLLOWING HEARING ON ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED ON DEFENDANT AND DEFENDANT'S COUNSEL FOR VIOLATION OF A COURT ORDER

(I) Introduction

This is a wage and hour class action. See generally Doc. No. 1-2. The docket reflects a series of protracted discovery disputes that have required frequent intervention by the Court. See Doc. Nos. 29, 31, 32, 37-44, 46-54. Although the history of this case suggests the parties cannot agree on the color of an orange, the following two facts are undisputed: (1) on December 18, 2023, the Court ordered defendant to produce the class list by December 20, 2023 (the “Discovery Order”); and, (2) rather than produce the class list, defendant filed objections to the Discovery Order and did not produce the class list until January 26, 2024, after the District Judge overruled defendant's objections. See Doc. Nos. 51, 52, 58, 61 at 6:21-22.

On January 26, 2024, the Court ordered defendant and its counsel to show cause why they should not be sanctioned pursuant to Federal Rule of Civil Procedure 37(b) for failing to comply with the Discovery Order. Doc. No. 59 at 3-4 (the “OSC”). Defendant responded to the OSC on February 5, 2024. Doc. No. 61. The Court held a hearing on February 9, 2024, at which defendant's counsel appeared along with defendant's designated corporate representative. Doc. Nos. 63, 65. The Court heard counsel's arguments and took the matter of sanctions under submission. Doc. No. 63. At the Court's direction, plaintiff filed a declaration and billing statement containing the claimed fees and costs expended due to defendant's violation of the Discovery Order. See Doc. No. 63, 66. Defendant responded to plaintiff's statement of fees. Doc. No. 67. The record is now complete for this Court to resolve the sanctions issue.

(II) Whether the Issuance of Sanctions against Defendant or Defense Counsel is Appropriate

When a discovery order has been disobeyed, the Court “must order the disobedient party, the attorney advising the party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure.” Fed. R. Civ. P. 37(b)(2)(C) (emphasis added). The Court has broad discretion as to whether and what type of sanctions should be awarded under Rule 37. See Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir. 1983). However, the Court may decline to award sanctions where the conduct at issue was “substantially justified” or “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Sanctions are thus mandatory unless the Court makes one of the enumerated, exculpatory findings. See Notice v. DuBois, 187 F.R.D. 19, 20 (D. Mass. 1999). The party to be sanctioned under Rule 37(b) carries the burden of demonstrating the existence of mitigating factors. See Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir. 1981) (citing David v. Hooker, Ltd., 560 F.2d 412, 419 (9th Cir. 1977)). An otherwise sanctionable action could be “substantially justified” if “reasonable people could differ” over the appropriateness of the conduct. See Reygo Pac. Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (noting the “substantially justified” standard in Rule 37 does not mean “justified to a high degree of certainty” but rather “satisfied if there is a ‘genuine dispute’ ” about the propriety of the conduct at issue).

Defendant concedes it disobeyed the Court's Discovery Order to produce the class list by December 20, 2023. See Doc. No. 61 at 6:12-13. Thus, a sanctions award falls presumptively within the scope of the Court's discretion under a straightforward application of Rule 37(b). Before awarding any sanctions, however, the Court must resolve the following issues: (A) whether defendant's conduct was substantially justified; (B) if sanctions are to be awarded, the appropriate scope and amount of sanctions; and (C) whether defendant, its counsel, or both should be sanctioned.

(A) Whether Defendant Was Substantially Justified in Disregarding the Court's Discovery Order

Defendant argues sanctions are not warranted here because its failure to produce the full class list as ordered on December 20, 2023, was substantially justified. See Doc. No. 61 at 6. More specifically, defendant suggests there is a “genuine dispute” about whether defendant's objection to the Discovery Order served to automatically stay execution of the Discovery Order. See id. Defendant rests this argument on two premises: (1) there is no binding (i.e., Ninth Circuit) authority that proves dispositive of the issue; and (2) this “jurisdiction” has not adopted a “definitive rule.” Id. at 4. Thus, defendant argues, “reasonable minds differ” about whether a Rule 72 objection, as was filed in this case, triggers an automatic stay, and sanctions are therefore not warranted for its admitted disregard of the Discovery Order. See id.

The Ninth Circuit does recognize that a “good faith dispute concerning a discovery question might, in the proper case, constitute ‘substantial justification’ for disregarding a court order.” Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir. 1981). In Liew, an attorney disobeyed a court order that would require disclosure of the identities of his clients. Id. at 1048. The district court issued an order to show cause, held a hearing, and sanctioned the attorney. Id. The attorney argued he was substantially justified in refusing to divulge the information because he believed the information was both “irrelevant” and protected by the attorney client privilege. Id. The court held the sanctions order was not an abuse of discretion. Id. at 1050. Even though both objections had on-point support in case law, the court determined neither was well taken on the facts of the case, and the attorney was thus not substantially justified for asserting them. Id. at 1048-51.

In contrast to Liew, where there was some legal authority to support the position taken by the sanctioned party and its assertion that defiance of a court order was substantially justified, there is no controlling legal support for the defendant's position in this case. Defendant has identified no authority supporting the imposition of an automatic stay when a party files a Rule 72 objection to a pretrial order. See Doc. No. 61 at 4-7. Defendant instead relies on the fact that the absence of controlling Ninth Circuit or Supreme Court authority conclusively establishes that defendant correctly assumed that an automatic stay would be in place by merely filing an objection to the Discovery Order. Id. at 2, 4. This assertion does not serve as a substitute for sound legal authority to support defendant's failure to comply with a court order.

The absence of “substantial justification” for defendant's position is further shown by the contrary reported decisional authority that uniformly imposes the rule that objecting to a Magistrate Judge's pretrial order does not automatically stay execution of the order. See Playup v. Mintas, 635 F. Supp. 3d 1087, 1093-94 (D. Nev. 2022); accord Tempay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1260 (M.D. Fla. 2013); Zhou Jie Plant v. Merrifield Town Ctr. Ltd. P'ship, 711 F. Supp. 2d 576, 584-85 (E.D. Va. 2010); Tacori Enters. v. Beverlly Jewellery Co., 253 F.R.D. 577, 583-84 (C.D. Cal. 2008); Filler v. Lernout, 219 F.R.D. 28, 30 (D. Mass. 2003); Esparza v. Bridgestone/Firestone, Inc., 200 F.R.D. 654, 657 (D. Colo. 2001); White v. Burt Enters., 200 F.R.D. 641, 642-43 (D. Colo. 2000); Dayco Prods., Inc. v. Walker, 142 F.R.D. 450, 452 (S.D. Ohio 1992); Litton Indus., Inc. v. Lehman Bros. Kuhn Loeab, Inc., 124 F.R.D. 75, 78-79 (S.D.N.Y. 1989); see also Maness v. Meyers, 419 U.S. 449, 457-58 (1975) (“[E]ven incorrect orders from courts ordinarily must be obeyed until set aside․”); Kimbrell v. Adia, S.A., 834 F. Supp. 1313, 1317 (D. Kan. 1993) (“Decisions by a magistrate judge on nondispostive motions are intended to be effective unless overturned by the district judge ․”). The purpose behind this well-established rule is that “strategic” objections could otherwise turn a pretrial order like the Discovery Order at issue here into a paper tiger whenever a party files an objection, even if meritless. Playup, 635 F. Supp. 3d at 1093 n.1; Nat'l Excess Ins. Co. v. Civerolo, Hansen & Wolf, P.A., 139 F.R.D. 401, 404 (D.N.M. 1991).¹

After exhaustive research, the Court has not found a single reported decision in which filing a Rule 72 objection served to automatically stay the order objected to. If such a case exists, it has not been brought the Court's attention, the Court has not independently discovered it, and it would stand alone as an unpersuasive outlier buried beneath a landslide of contrary authority. The closest case the Court can discover is a single, unreported case where a District Court excused a pro se litigant from complying with a Magistrate Judge's order during the period when an objection was pending. See Rance v. Jenn, 06-61002-Civ-Marra/Johnson, 2007 WL 9701591, 2007 U.S. Dist. LEXIS 116795, at *4-6 (S.D. Fla. July 18, 2007). Even so, that court therein noted the ordinary rule that objections do not automatically stay pretrial orders, and the decision to excuse non-compliance was only made after the fact because the party was pro se. Id. The exceptions some courts might make for unsophisticated pro se litigants do not apply to sophisticated parties represented by equally sophisticated lawyers, as is the case here. Given the overwhelming case law to the contrary, reasonable lawyers simply could not conclude defendant was justified in failing to comply with the Court's Discovery Order. On this record, the Court finds defendant's legal position is not substantially justified

Defendant also argues it had a good-faith basis for believing an automatic stay can be “read into” the Rule 72 objection procedure. See Doc. No. 61 at 4-6. Defendant suggests this is the case both because a Rule 72 objection is analogous to a state court interlocutory appeal under California Code of Civil Procedure Section 916 and because an automatic stay would prevent a litigant from having to produce documents before the District Court can rule on an objection. Id. The Court finds both arguments unpersuasive.

Defendant asserts that a Rule 72 objection is akin to a state court interlocutory appeal because both preserve the “status quo” while an appeal is pending. See Doc. No. 61 at 4. This is not a California state court, however, and defendant was not appealing a ruling on the merits. In any event, the policy behind preserving the “status quo” pending a state court appeal is to “prevent[ ] the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may effect it.” Varian Med. Sys., Inc. v. Delfino, 106 P.3d 958, 964 (Cal. 2005). Defendant has not explained how or why this Court should be concerned with objections being rendered “futile” under Federal Rule of Civil Procedure 72. The analogy to state court appeals is therefore unpersuasive. Further, although California law provides for automatic stays on appeal, the automatic stay is not “free.” Rather, it comes with procedural protections—such as posting a substantial bond for more than judgment value and paying interest on affirmed judgments—which ameliorate the potential prejudice to the party defending an appeal. See Cal. Civ. Proc. Code § 917.1. No such protections exist to prevent gamesmanship of the Rule 72 objection procedure, hence judicial hostility towards the filing of “strategic” objections. Cf. Playup, 635 F. Supp. 3d at 1093 n.1. Defendant could therefore not have been substantially justified in any reliance on an analogy to state court interlocutory appeals.

Further, defendant has no legal authority for its argument that courts should read an automatic stay into Rule 72 to prevent parties from having to comply with discovery orders before the District Court can rule on an objection. Defendant describes itself as having been placed between the proverbial rock and hard place because the Court ordered production of the class list in two days, and defendant claims no other relief could have been obtained during the two-day period. See Doc. No. 61 at 5. As already acknowledged, the Court gave defendant a short deadline here—although the quick turnaround was based on an understanding that defendant had the class list in its possession and only needed to produce it. Doc. No. 65 at 13. That understanding appears to have been correct, given that defendant produced the class list only one day after the District Judge overruled defendant's objections. See Doc. No. 61 at 3. Defense counsel did, however, have other options. After the issuance of the Discovery Order, defendant could have asked plaintiff to jointly move for modification of the Order. If plaintiff did not agree, defendant may have been justified in seeking immediate ex parte relief from this Court, the District Court, or both, given the short deadlines imposed. Cf. Horne v. Wells Fargo Bank, N.A., 969 F. Supp. 2d 1203, 1205 (C.D. Cal. 2013); Mission Power Eng'g. Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). Further, it could have filed a motion for a stay of the production obligation requesting an expedited determination. Defendant did not avail itself of the multiple procedures available. Instead, it chose the nuclear option of simply ignoring a Court-imposed deadline.

The Court has considered defendant's arguments for substantial justification and finds that they fall short. Case law on the “automatic stay” argument is uniformly against defendant. An objection to a pretrial order is not analogous to a state court interlocutory appeal. There were ample procedures available to defendant short of disobeying a court order to obtain relief from complying with the Discovery Order. Because reasonable minds could not agree with defendant, the Court concludes defendant was not substantially justified when it disobeyed the Discovery Order. The Court will issue sanctions. The only remaining issues are how much and against whom.

(B) The Appropriate Amount of Sanctions

The purpose of civil sanctions is to ensure compliance with court orders and to compensate aggrieved parties for the sanctioned party's failure to comply with court rules and orders. Oracle USA, Inc. v. Rimini St., Inc., 81 F.4th 843, 858 (9th Cir. 2023); see also United States v. United Mine Workers, 330 U.S. 258, 303-04 (1947) (noting civil sanctions serve “to compensate the complainant for losses sustained”). The appropriate sanction here should compensate plaintiff for the expenses incurred by defendant's obdurate disregard of the Court's authority. Oracle USA, Inc., 81 F.4th at 843; see also Kraszewski v. State Farm Gen. Ins. Co., 130 F.R.D. 111, 113 (N.D. Cal. 1984) (noting the goal of compensatory sanctions is “to make the injured party whole.”). “[T]he Court must tailor its award to the pecuniary injury caused by the unexcused conduct.” Kraszewski, 130 F.R.D. at 113 (citing Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 779 (9th Cir. 1984)). “The amount necessary to compensate the aggrieved party may be estimated by the sanctioning court.” Id. (citing United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1371 (9th Cir. 1980)).

The Court directed plaintiff to file a statement of fees incurred by preparing the Joint Motion to Amend the Scheduling Order that appears as Docket No. 57 (the “Joint Motion”). See Doc. No. 63; Doc. No. 65 at 16-17. Although the Court could have made a broader request, e.g., “all attorneys' fees incurred because of defendant's defiance of the Court's Discovery Order,” the Court limited the recoverable fees to the filing of the Joint Motion because the continuance sought by plaintiff was in part a consequence reasonably attributable to defendant's noncompliance with the Discovery Order. See Doc. No. 57 at 4.

The Court calculates an attorneys' fee award under the following standard:

“The calculation of the amount of a ‘reasonable attorney's fee’ is not a precise science.” Green v. Baca, 225 F.R.D. 612, 614 (C.D. Cal. 2005). Still, a “strong presumption exists that the lodestar figure represents a reasonable fee.” Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987)․ The lodestar method multiplies the number of hours counsel “reasonably expended on the litigation ․ by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The Court should, however, exclude time that is “excessive, redundant, or otherwise unnecessary.” Id. at 434.

Infanzon v. Allstate Ins. Co., 335 F.R.D. 305, 314 (C.D. Cal. 2020) (parallel citation omitted) (ellipsis in original).

Plaintiff filed a declaration, accompanied by an itemized billing statement, in which she claims to have incurred $12,275 in legal fees preparing and filing the Joint Motion. See Doc. No. 66. The billing statement includes charges billed by three individuals: Christine LeVu, Jeffrey Herman, and Yesenia Silva. Id. Ex. 1. The breakdown of fees attributed to these individuals is as follows:

Timekeeper Christine LeVu Yesenia Silva Jeffrey Herman Combined Rate $750.00 $250.00 $750.00 Hours (Attorney) 15.2 0.4 15.7 Hours (Staff) 2.3 2.3 Total $11,400 $575 $300 $12,275

See id. Defendant challenges both the reasonableness of counsel's hourly rates and the reasonableness of the time expended. See Doc. No. 67. The Court will examine—and adjust as necessary—the rates and hours to ensure only reasonable fees are awarded.

(1) Reasonableness of Hourly Rates

The Court must assess the reasonableness of the hourly rates claimed for all three timekeepers. Courts making lodestar calculations “should be guided by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Chalmers v. City of L.A., 796 F.2d 1205, 1210-10 (9th Cir. 1986). Prevailing rates may be established by affidavit or declaration. See United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). The Court may rely on its own knowledge and experience of the relevant legal market to assess the reasonableness of an hourly rate. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). The Court may also look to fee awards issued in other cases as a touchstone of reasonableness. See Shayler v. 1310 PCH, LLC, 51 F.4th 1015, 1022-23 (9th Cir. 2022).

The Court will address the three timekeepers at issue in order of simplicity. Notably, plaintiff failed to submit any evidence, by way of declaration or otherwise, relevant to establishing the reasonableness of her counsels' hourly rates. The Court will accordingly rely on its own knowledge and experience to determine reasonable hourly rates as compared to fee awards in other cases.

Mr. Herman's rate proves easiest. The Court has no knowledge of his involvement in this case other than his name appearing on pleadings filed by plaintiff. Plaintiff makes no effort to justify his rate, as defendant points out. See Doc. No. 67 at 8. The Court would struggle to assess a reasonable hourly rate for Mr. Herman, however, as the Court notes, infra, Mr. Herman's time will be disallowed for other reasons. Thus, the Court need not and does not decide whether his hourly rate is reasonable.

Ms. Silva's rate is second easiest to evaluate. Although Ms. Silva's role is not explained in plaintiff's submission, Ms. Silva claims an hourly rate of $250 and the tasks she performed are those properly performed by a paralegal or other administrative staffer, rather than an attorney. See, e.g., Doc. No. 66 at 4. From this, the Court concludes Ms. Silva must work in an administrative capacity, either as a paralegal, secretary, or in some other non-attorney role. Defendant's response does not challenge the reasonableness of Ms. Silva's hourly rate other than to argue plaintiff has failed to justify the claimed rate. Doc. No. 67 at 8. This is not a fatal omission because courts in this District have found $250 reasonable for support staff. See Durruthy v. Charter Commc'ns, LLC, 20-cv-1374-W-MSB, 2021 WL 6883423, 2021 U.S. Dist. LEXIS 253560, at *15-16 (S.D. Cal. Sept. 30, 2021) (collecting cases and awarding $250 per hour for paralegal services). However, the Court notes this high rate has generally been applied to support staff with decades of experience. See id. Nothing in the record establishes Ms. Silva has sufficient experience to bill her time at rates near the top of the market in this District. Accordingly, the Court exercises its discretion to reduce Ms. Silva's rate to $175 per hour, which is more in accord with the Court's knowledge and experience of the relevant legal market absent any circumstances, such as extraordinary skill and experience, justifying a top-of-market rate.

Ms. LeVu's hourly rate requires the most complicated assessment. She claims a billing rate of $750 per hour. See Doc. No. 66 Ex. 1. Defendant raises three objections: (1) Ms. LeVu is not a partner at her law firm, so her rate should be lower; (2) plaintiff's application does not adequately substantiate the claimed rate with any evidence; and (3) defendant's counsel bills at a lower rate than Ms. LeVu. See Doc. No. 67 at 8. Defendant's first claim is unpersuasive because, partner or otherwise, Ms. LeVu has been the lead attorney on this matter and has shown herself to have commensurate competence to that of defense counsel in this case, including Sheppard Mullin partner Matthew Tobias. As to defendant's third objection, it is not enough for a party opposing a fee request to simply argue its own attorney's rates are lower. See Bodely v. Thompson, C-04-375-JSC, 2005 U.S. Dist. LEXIS 5113, at *15-16 (N.D. Cal. Mar. 23, 2005). Rather, the party opposing the fee request must establish not only that the experience and level of expertise of its counsel is comparable (or superior) to the other attorney, but also the rates charged are not representative of a reasonable rate in the relevant legal market. See id. Here, the assertion that Ms. LeVu's rates should be reduced simply because Mr. Tobias's rates are slightly lower is therefore unpersuasive.

Defendant's remaining contention has merit. Plaintiff has made no showing as to why Ms. LeVu's rates should be set at such a high rate. In the Court's experience, lawyers with expertise and experience representing clients in class action litigation are competent problem solvers who consequentially command the highest rates. Counsel in this case, however, including Ms. LeVu, have spent countless hours challenging each other and disputing issues that concern the most basic aspects of federal civil procedure and which could (and should) have been resolved informally through the exercise of basic professionalism. As noted at the OSC hearing, the Court has seen “time and time again in this case ․ an inability of the parties to work collaboratively together,” and has commented that “both sides [of this case] need to take a moment and think about how [they] can professionally move this case forward” because that had “not been the course of action in this case.” Doc. No. 65 at 16.

Although the conduct of defendant and its counsel are now at issue, it cannot reasonably be disputed that conduct on both sides contributed to the snarled procedural posture of this case and the protracted discovery fights which have punctuated this litigation. Through multiple discovery conferences, the Court has observed the parties taking intractable positions, and their inability to work together has rendered meaningless the “meet and confer” process intended to resolve disagreements through reasonable compromises. Based on the foregoing, the Court exercises its discretion to reduce Ms. LeVu's rate to $550 per hour, which is consistent with what lead counsel in employment law cases can reasonably command in this District. See, e.g., Durruthy, 2021 U.S. Dist. LEXIS 253560, at *14.

(2) Reasonableness of Time Expended

Plaintiff seeks to recover 0.4 hours of billable time for Mr. Herman, 2.3 hours for Ms. Silva, and 15.2 hours for Ms. LeVu. The standard for this element of an attorneys' fee award is “whether a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed.” Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 839 (9th Cir. 1982). The Court will exclude any “excessive, redundant, or otherwise unnecessary hours.” Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012). The Court will again address the three timekeepers in order of simplicity.

The only billable task attributed to Mr. Herman is “[r]eview Order re joint motion and OSC re sanctions to defendant.” Doc. No. 66 at 7. Plaintiff does not explain how reviewing the Court's Order to Show cause has any connection to preparing the Joint Motion, or why Mr. Herman was involved in any such review. Accordingly, the Court concludes Mr. Herman's 0.4 hours are not reasonably incurred and will disallow his time from the billing statement.

Plaintiff claims Ms. Silva billed 2.3 hours in connection with filing the Joint Motion. See Doc. No. 66 Ex. 1. The only charge attributable to Ms. Silva that defendant challenges directly is a 0.5-hour time entry dated January 3, 2024. See Doc. No. 67 at 6. That entry reads: “Finalize P's responses to Defendant's Obj. to Order re Joint Discovery Motion. Review magistrate's and DJ's chamber orders re courtesy copy. File via ECF. Email to Court Docs.” Doc. No. 66 at 4. Defendant argues this entry does not relate to the filing of the Joint Motion. See Doc. No. 67 at 6. Although defendant's objection to the Discovery Order catalyzed the chain of events leading to this Court issuing the OSC, defendant is not being sanctioned for objecting. Rather, defendant is being sanctioned for disobeying the Discovery Order and failing to produce the class list as ordered. Hence, the Court directed plaintiff to submit a declaration and recitation of fees incurred in preparing the Joint Motion. See Doc. No. 65 at 16-17. The Court accordingly disallows Ms. Silva's time entry from January 3, 2024. Moreover, as the Court will explain, infra, the Court is not prepared to compensate plaintiff for the preparation of an exhibit book that was not requested, and which proved almost totally unnecessary to resolving the issues in the Joint Motion. Accordingly, the Court disallows Ms. Silva's 0.5-hour time entries from both January 18, 2024, and January 19, 2024; a further reduction of 1.0 hours. Ms. Silva's total hours are therefore adjusted downwards to 0.5 hours of compensable time.

Finally, plaintiff seeks to recover 15.2 hours for the time expended by attorney Christine LeVu in preparing the Joint Motion. See generally Doc. No. 66 Ex. 1. Defendant raises objections to most of the time entries. See generally Doc. No. 67. Those objections fall broadly into two categories: (a) some of Ms. LeVu's time is duplicative or not properly directed towards preparation of the Joint Motion; and (b) Ms. LeVu's hours are inflated by her own unreasonable conduct. See id. The Court will address both concerns.

As to the duplicative and irrelevant entries, defendant first objects to Ms. LeVu billing for time spent reviewing the Court's OSC because that arose after the Joint Motion had been filed. See Doc. No. 67 at 6. Because Ms. LeVu's time reviewing the OSC falls outside the scope of billable tasks the Court directed plaintiff to account for, the Court disallows the 0.4 hours of time billed by Ms. LeVu on January 29, 2024. Defendant further argues a time entry from January 16, 2024, titled “Email to M. Tobias re: meet and confer re: briefing schedule for class certification; Telephone call to M. Tobias re: same” should be disallowed because it relates to a proposed briefing schedule for a class certification motion. See Doc. No. 67 at 7. However, the Court's review of the email cited by defendant (Exhibit D to Mr. Tobias's declaration) shows Ms. LeVu proposing an addition to the Joint Motion, rather than separately addressing a class certification briefing schedule. See Doc. No. 67-5 at 2. Thus, it appears the email defendant wants to the Court to consider does not correlate with the challenged billing entry. Based on the Court's independent scrutiny of the billing statement, Ms. LeVu's time entries from January 16, 2024, include two entries for emails sent to Mr. Tobias: one of them describes the Joint Motion (and which appears to be Exhibit D to Mr. Tobias's declaration), whereas the other billing entry refers to a class certification briefing schedule. See Doc. No. 66 at 4. The Court concludes the 0.4 hours billed for meeting and conferring about the class certification motion on January 16, 2024, should be disallowed, but the 0.3 hours spent meeting and conferring about the Joint Motion on that same day is not improper.

Defendant finally argues the Court should reduce Ms. LeVu's time spent composing various short emails and leaving short voicemails. See Doc. No. 67 at 6-7. Defendant included the underlying communications that correspond to the billing entries at issue. See Doc. Nos. 67-3 at 2; 67-4; 67-5 at 2; 67-6. The Court has reviewed the emails at issue and concludes each should have been reasonably billed for no more than 0.1 hours.

The Court therefore adjusts the following entries:

Date 1/14/24 1/16/24 1/17/24 Time Entry Email to M. Tobias re Joint Motion to Amend Scheduling Order and meet and confer Email to M. Tobias re: revisions to Joint Motion to Amend Scheduling Order and Declaration of C. LeVu in support of Joint Motion Email to B. Lewis re: follow-up re Joint Motion Billed Time 0.4 0.3 0.2 Adjusted Time 0.1 0.1 0.1

The Court's total adjustments to these specific billing entries yield a combined reduction of 0.6 hours. In conjunction with the 0.8 hours of time the Court concludes should be disallowed for performing unrelated tasks, the total downwards adjustment to Ms. LeVu's time is 1.4 hours. The Court will next address the overall reasonableness of Ms. LeVu's remaining 13.8 hours spent on the Joint Motion.

The majority of defendant's objections are a variation on the following theme: it took Ms. LeVu longer than necessary to prepare the Joint Motion because she is unreasonable in all her dealings with defendant. See Doc. No. 67 at 3-6. The Court rejects this argument. Neither party is wholly blameless here, as the Court has noted, and the Court will not referee counsels' collective finger-pointing to determine which lawyer was more unreasonable than the other. The Court has already imposed an across-the-board reduction to Ms. LeVu's hourly rate based on her role in counsel's collective failure to work professionally with each other. The Court finds this is a better approach than making ad hoc determinations about how much time individual tasks might have taken if one or more lawyers had been more or less reasonable in their negotiations with opposing counsel.

Even so, the Court determines that the time spent preparing the Joint Motion is facially unreasonable. Paragraph VI of the Court's Chambers Rules specify the contents of a joint motion to amend the Scheduling Order, which is meant to be a streamlined filing that resolves otherwise routine scheduling issues. Here, Ms. LeVu appended hundreds of pages of exhibits to the Joint Motion. Those exhibits included meet-and-confer emails, discovery requests and responses, and copies of documents already included on the Court's docket. See Doc. No. 57-1 Exs. 9-12, 17-19. The scope of information in the exhibit book far exceeded the guidelines set forth in the Chambers Rules and was unnecessary for the Court to consider in ruling on the Joint Motion. The Court only needed to find good cause to extend the deadlines imposed in this case, which the Court easily found based on defendant's discovery production made near the close of the fact discovery period. See Doc. No. 59 at 2.² The Court accordingly concludes the number of hours Ms. LeVu spent to compile a needlessly voluminous Joint Motion to be unreasonable, and therefore exercises its discretion to reduce Ms. LeVu's time expended on this endeavor by half. Of the 13.8 hours not yet adjusted, the Court therefore finds 6.9 hours were reasonably expended on the Joint Motion, which aligns the Court's knowledge and experience as to what is reasonable for a contested motion to amend the Scheduling Order.

(3) Total Sanctions

The following summary represents the hours and rates as adjusted to reflect what the Court finds reasonable:

Timekeeper Christine LeVu Yesenia Silva Jeffrey Herman Combined Rate $550 $175 $750 Hours (Attorney) 6.9 0 6.9 Hours (Staff) 0.5 0.5 Total $3,795 $87.50 $0 $3,882.50

Plaintiffs asked the Court to impose a total of $12,275 in sanctions. The Court finds that amount unreasonable because both the hourly rates and the total time billed were too high. The Court concludes, after making the appropriate downward adjustments, a total sanction of $3,882.50 is reasonable based on the facts of this case.

(B) The Appropriate Party to be Sanctioned

The Court may subject a party, the party's attorney, or both to monetary sanctions for violating a court order. See Fed. R. Civ. P. 37(b)(2)(C). The Court should, if possible, ascertain whether the attorney or the party is at fault, and apportion sanctions accordingly. See Tom v. S.B., Inc., 280 F.R.D. 603, 612 (D.N.M. 2012); accord Ransmeier v. Mariani, 718 F.3d 64, 70 (2d Cir. 2013); Weisberg v. Webster, 749 F.2d 864, 873-75 (D.C. Cir. 1984); Cardena v. Dorel Juv. Grp., Inc., 230 F.R.D. 611, 634 n.68 (D. Kan. 2005); In re Cath. Bishop of Spokane, CV-10-083-JLO; 2010 U.S. Dist. LEXIS 116208, at *31-32 (E.D. Wash. Oct. 28, 2010).

Defendant's attorney acknowledged at the hearing that counsel is accountable for the violation of the Court's Discovery Order. Doc. No. 65 at 4-5. As he stated, “we believe[d]” the state law privacy issue justified an objection and “[w]e felt” the lack of “controlling authority” warranted an objection. Id. (emphasis added). Thus, the Court finds, based on the record here, the responsibility for disobeying the Court's Order lies with defendant's attorneys of record, and not with defendant. The Court accordingly imposes sanctions against counsel rather than defendant.

III Conclusion

Having reviewed the record in this matter, the Court finds defendant and its counsel were not substantially justified in choosing to disobey the Court's Discovery Order. The Court also finds counsel bears sole responsibility for the disobedience. The Court therefore imposes sanctions of $3,882.50 jointly and severally against attorneys Matthew A. Tobias, Bryanne J. Lewis, and Elyssa M. Sternberg.

Such sanctions shall be paid to the law firm retained to represent plaintiffs on or before April 24, 2024, and certification of payment by declaration is to be confidentially lodged to the Court's efile inbox that same day. The Court is aware that sanctions orders must be self-reported to the State Bar of California under certain situations, including the imposition of judicial sanctions against an attorney. See Cal. Bus. & Prof. Code § 6068(o)(3). However, the Court treats this a sanction for “failing to produce discovery,” which is not reportable under the relevant statute. See id. Accordingly, the Court does not order defense counsel to report this sanction to the state bar.

The Order to Show Cause is hereby DISCHARGED.

IT IS SO ORDERED.

FOOTNOTES

1.   Although not specifically reflected in the Civil Local Rules of this District, Civil Local Rule 72-2 of the nearby Central District of California (where defense counsel of record in this case maintains their offices) expressly codifies the “no automatic stay” rule from case law. Other districts have likewise enshrined this in their local rules. See, e.g., Dayco Prods., 142 F.R.D. at 452; Wallace c. McCauley, 22-12530, 2023 WL 4372684, 2023 U.S. Dist. LEXIS 115955, at *7-8 (E.D. Mich. July 6, 2023). It is unreasonable to conclude, as the defendant herein apparently did, that the absence of a similar local rule in this district provides substantial justification for delaying compliance with court orders until rulings are made on Rule 72 objections. See Doc. No. 61 at 2:12-14.

2.   When the Joint Motion was filed on January 24, 2024, class certification discovery was set to close on January 26, 2024. Doc. No. 57 at 3. A class certification motion was due to be filed on or before February 12, 2024. Id. On January 11, 2024, defendant served amended initial disclosures disclosing 60 witnesses defendant might use to support its case. Id. at 57. At least 46 of those witnesses had not been disclosed prior to that date. Id. The class list was not produced until January 26, 2024, the day fact discovery closed. Doc. No. 61 at 3. Plaintiff request for a discovery continuance to use the class list for the purpose of locating favorable witnesses was accordingly justified.

Hon. Karan S. Crawford United States Magistrate Judge