Judge: Anne Hwang, Case: 21STCV32595, Date: 2023-08-23 Tentative Ruling

Case Number: 21STCV32595    Hearing Date: November 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

Defendant Lindsay Celeste Sena (Defendant) moves to compel Plaintiff Rosio Lus Mena’s (Plaintiff) responses to Form Interrogatories, Set One. Defendant also seeks monetary sanctions. Plaintiff has not filed an opposition.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses. (Code Civ. Proc. § 2030.290 (b).) Failure to timely respond waives all objections, including privilege and work product, unless “[t]he party has subsequently served a response that is in substantial compliance” and “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2030.290 (a)(1), (a)(2).) The statute contains no time limit for a motion to compel where no responses have been served and no meet and confer is required when a party does not respond to discovery requests. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

If a motion to compel responses is filed, the Court shall impose a monetary sanction against the losing party “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290 (c).) Further, “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)

DISCUSSION

Here, Defendant represents that she served Form Interrogatories, Set One on Plaintiff on March 9, 2023. (Trujillo Decl. ¶ 6, Exh. 1.) Responses were due on April 17, 2023. (Id. ¶ 7.) However, no responses have been served and no extension was requested. (Id.) Therefore, because responses have not been served, the motion to compel is granted.  

Defendant also requests $680.00 in monetary sanctions against Plaintiff representing an hourly rate of $155.00 for 2 hours preparing this motion, 2 hours reviewing the opposition and drafting the reply and preparing for the hearing, and the $60.00 filing fee. The Court finds sanctions are warranted because Plaintiff has failed to respond. However, the amount requested is excessive due to the type of motion at issue and the fact no opposition was filed. Therefore, the Court awards sanctions in the amount of $292.50 (1.5 hours of attorney time to file and appear at hearing, plus the $60 filing fee).

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion to Compel Form Interrogatories, Set One is GRANTED. Plaintiff Rosio Lus Mena shall provide verified responses, without objection, within 30 days.

The Court further GRANTS Defendant’s request for monetary sanctions against Plaintiff in the reduced amount of $292.50. Said monetary sanctions are to be paid to counsel for Defendant within 30 days of the date of this order.

Defendant shall provide notice of the Court’s order and file a proof of service of such.

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

Defendant Lindsay Celeste Sena (Defendant) moves for terminating sanctions against Plaintiff Rosio Lus Mena (Plaintiff) for failing to comply with the Court’s discovery order and failing to respond to discovery. Defendant asks the Court to dismiss Plaintiff’s action. No opposition has been filed.

LEGAL STANDARD

If a person is engaging in misuse of the discovery process, the Court may issue a terminating sanction by one of the following orders:

“(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.”

(Code Civ. Proc. § 2023.030 (d).)

“Misuse of the discovery process” includes: “(d) Failing to respond or to submit to an authorized method of discovery . . . (g) Disobeying a court order to provide discovery.” (Code Civ. Proc. § 2023.010.) 

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.)  

“Generally, ‘[a] decision to order terminating sanctions should not be made lightly.  But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal. App. 4th at p. 390 [citation omitted].)   

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendant’s Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].) 

DISCUSSION

This case involves a motor vehicle accident. Plaintiff filed her complaint on September 2, 2021. Plaintiff filed the operative second amended complaint (SAC) on September 19, 2022. On August 23, 2023, the Court granted Defendant’s motion to compel Plaintiff’s responses to Requests for Production, Set One. Plaintiff did not oppose the motion or appear at the hearing. (Min. Order, 8/23/23.) A proof of service of notice of ruling was filed on September 1, 2023. Plaintiff was also ordered to pay $215 in sanctions to Defendant’s counsel. Defendant contends no responses have been served. According to Defendant, Plaintiff has generally failed to propound or respond to discovery in this case. Plaintiff did not appear for her deposition on June 1, 2023. (Trujillo Decl. ¶ 8–9.)

However, the Court notes that Plaintiff has appeared in this case, most recently in February 2023 to oppose a demurrer. (See Min. Order, 2/6/23.) Defendant’s counsel states she has communicated with Plaintiff twice since February 2023, but offers no facts from these encounters that suggest Plaintiff’s acts are willful. (See Trujillo Decl. ¶ 10.) Additionally, Defendant states that Plaintiff appeared for her deposition on September 12, 2023, but failed produce documents requested in the notice. (Id. ¶ 14.) Based on the circumstances, there is not enough evidence to show that Plaintiff’s actions are willful. For example, there is no indication in the declaration of counsel that counsel attempted to follow up with Plaintiff at her deposition on September 12, 2023 regarding the Court’s order compelling responses, or that Plaintiff received the order but nevertheless expressed an unwillingness to comply. Therefore, terminating sanctions are inappropriate at this time.

Defendant also seeks monetary sanctions for bringing this motion and contends that Plaintiff has failed to pay past Court-ordered monetary sanctions. However, there is no authority for imposition of sanctions for failure to pay sanctions. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 [“a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”].) Sanctions orders are enforceable as money judgments unless the court orders otherwise. Thus, the remedy to enforce payment of monetary sanctions is to obtain and levy a writ of execution on assets of the debtor. (Id. at 615.) Therefore, the request for monetary sanctions is denied.

Defendant also seeks a $250.00 monetary sanction under section 2023.050(a). However, section 2023.050(e) contains the following provision: “For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.” Defendant states that Plaintiff is self-represented. (Trujillo Decl. ¶ 3.) For the reasons stated above, the Court finds Defendant has not shown by clear and convincing evidence that Plaintiff has not acted in good faith. Therefore, the request for sanctions under 2023.050 is denied.

CONCLUSION AND ORDER

Therefore, Defendant’s motion for terminating sanctions is DENIED.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.