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DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.


Case Number: 19STCV32171    Hearing Date: January 05, 2021    Dept: 56

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

KEVIN BROWN,

                        Plaintiff,

            vs.

 

AIRGAS USA, LLC, et al.,

 

                        Defendants.

 

 

 

      CASE NO.: 19STCV32171

 

[TENTATIVE] ORDER RE: MOTION FOR AN ORDER OF CONTEMPT AND REQUEST FOR SANCTIONS

 

Date:  January 5, 2021

Time: 8:30 a.m.

Dept. 56

 

 

MOVING PARTY: Defendant Airgas USA, LLC (“Moving Defendant”)

 

RESPONDING PARTY: Plaintiff Kevin Brown

 

The Court has considered the moving, opposition, and reply papers. Despite Plaintiff’s argument to the contrary, based on the continued January 5, 2021 hearing date, Moving Defendant’s motion was timely served and will be considered in its entirety.  

 

BACKGROUND

Moving Defendant filed a motion to compel Plaintiff to provide responses to: (1) Moving Defendant’s first set of form interrogatories—employment law; (2) Moving Defendant’s first set of special interrogatories; and (3) Moving Defendant’s first set of requests for production of documents (collectively, the “Discovery”).  Moving Defendant’s motion to compel also requested monetary sanctions in the amount of $5,000.00 against Plaintiff and his counsel.

 

On August 27, 2020, the Court held a hearing on Moving Defendant’s motion to compel and the Court granted the motion[1].  The Court ordered Plaintiff to provide code-compliant and verified responses to the Discovery within 30 days of the date of the Court’s order.   The Court also awarded Moving Defendant monetary sanctions in the amount of $1,100.00 against Plaintiff and his counsel, Gary Rand and Suzanne E. Rand-Lewis, jointly and severally, which was to be paid to Moving Defendant within 20 days of the Court’s August 27, 2020 order. 

 

On September 2, 2020, Moving Defendant served a notice of ruling as to the Court’s August 27, 2020 order.  On September 9, 2020, the Court issued a nunc pro tunc order which stated that the Court’s August 27, 2020 minute order did not properly reflect the Court’s order.  The Court corrected the August 27, 2020 minute order nunc pro tunc on September 9, 2020 as follows: (1) the Court struck “[c]ounsel submitted to the Court’s tentative ruling”; and (2) the Court added “[t]he Court hears oral argument.”  The Court’s nunc pro tunc order also stated that: (1) the Court having reviewed the tentative ruling did not make any changes; and (2) the tentative ruling became the ruling of the Court.

 

 

 

The Current Motion

            Moving Defendant filed a motion (the “Motion”) for an order of contempt and a request for monetary sanctions in the amount of $3,575.00 against Plaintiff and his counsel for attorneys’ fees incurred in filing the Motion.  The Motion is made on the grounds that: (1) Plaintiff served his discovery responses one week after the Court-ordered deadline and has failed to provide code-compliant responses to Moving Defendant’s requests for production of documents because Plaintiff has failed to produce any responsive documents; and (2) neither Plaintiff nor his counsel has paid the $1,100.00 in monetary sanctions previously ordered by this Court. 

 

JUDICIAL NOTICE

            The Court GRANTS Moving Defendant’s request for judicial notice.

 

DISCUSSION

             Code Civ. Proc. § 2023.030 allows a court to impose terminating sanctions, issue sanctions, evidentiary sanctions, or monetary sanctions against a party who engages in the misuse of the discovery process.  Code Civ. Proc. § 2023.030(e) allows a court to impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.  Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.  (Code Civ. Proc. § 2031.280(a).)

 

 

 

Issue No.1: Failure to Comply with the Court’s August 27, 2020 Order

            Plaintiff asserts that because the Court’s final ruling on the motion to compel was issued on September 9, 2020—which is when the clerk served the Court’s nunc pro tunc order on the parties by mail—that is the triggering date for when Plaintiff’s discovery responses were due. Here, the nunc pro tunc order did not change the substance of the Court’s August 27, 2020 order so Plaintiff’s argument on this point is unpersuasive.

 

            Initially, the Court exercises its discretion and finds contempt sanctions inappropriate against Plaintiff and his counsel.  The Court, however, does find that imposition of monetary sanctions against Plaintiff and his counsel is appropriate.  Plaintiff served responses to the Discovery on October 5, 2020, which was past the Court-ordered deadline[2].  Additionally, in response to Moving Defendant’s requests for production of documents, set one, Moving Defendant presents evidence that Plaintiff did not: (1) indicate which documents were responsive to each request; and (2) produce any responsive documents.  With his opposition papers, Plaintiff provides the declaration of his counsel, Suzanne E. Rand Lewis, who declares that: (1) on December 21, 2020, Plaintiff produced all responsive documents in his possession, custody, and control; and (2) on November 17, 2020, she mailed a check for full payment of sanctions imposed by the Court to defense counsel.  Such responses are clearly late based on the deadline set forth in the Court’s August 27, 2020 order.  Also, Plaintiff failed to submit any evidence for the Court to ascertain the substance of the December 21, 2020 production of responsive documents.  Moving Defendant, however, provides evidence in support of its reply brief that Plaintiff’s December 21, 2020 production of responsive documents failed to comply with Code Civ. Proc. § 2031.280(a).  (Halsing Decl. at ¶¶ 4-5 and Exhibit B.)  

 

Moreover, Plaintiff and his counsel failed to pay the ordered monetary sanctions by the Court-imposed deadline.  Plaintiff clearly failed to comply with the Court’s August 27, 2020 order in a timely and complete manner.

 

            The Court therefore GRANTS IN PART the Motion filed by Moving Defendant.  The Court DENIES Moving Defendant’s request for a contempt sanction against Plaintiff and his counsel. 

 

The Court, however, GRANTS Moving Defendant’s request for monetary sanctions against Plaintiff and his counsel of record, Suzanne E. Rand-Lewis and Gary Rand, jointly and severally, and AWARDS Plaintiff reasonable monetary sanctions in the amount of $1,100.00 under Code Civ. Proc. § 2023.010(g) and Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.  Monetary sanctions are to be paid by Plaintiff, Gary Rand, and Suzanne E. Rand-Lewis to Moving Defendant within 20 days of the date of this order.  The Court also ORDERS Plaintiff to provide verified, complete, and code-compliant responses, without objection, to Moving Defendant’s requests for production of documents, set one, within 30 days of the date of this order.

 

            Moving party is ordered to give notice of this ruling.

 

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

 

            Dated this 5th day of January 2021

 

 

 

 

Hon. Holly J. Fujie

Judge of the Superior Court

 



[1] The Court’s August 27, 2020 order stated that counsel submitted on the Court’s tentative ruling.

[2] Plaintiff had 30 days from August 27, 2020 to serve responses to the Discovery. 



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