Judge: Anne Richardson, Case: 21STCV13617, Date: 2023-08-22 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. 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) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) 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 email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV13617    Hearing Date: September 27, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Javier Alarcon Munoz sues Defendants Juvenal Alejandro Farias (Farias), Bargain Rent-a-Car dba Lexus of Cerritos (Cerritos Lexus), Schoolsfirst Insurance Services, LLC (Schoolsfirst), Ivonne Maria Guerrero (Guerrero), Mercury Insurance Company (Mercury Ins. Co.), Mercury General Corporation (dismissed with prejudice on May 26, 2023), and Does 5-50 pursuant to an October 12, 2022 Fourth Amended Complaint alleging claims of (1) Revocation of Acceptance of Goods, (2) Rescission, (3) Breach of Oral Contract, (4) Breach of Implied-in-Fact Contract, (5) Breach of Written Contract, (6) Fraud, (7) Violations of Consumer Legal Remedies Act, (8) Violation of Unfair Business Practices Act/Unfair Competition, (9) Violation of Penal Code Section 496, (10) Common Counts (Money Had and Received), (11) Breach of Fiduciary Duty, (12) Negligence, (13) Negligent Misrepresentation, and (14) Reformation / Revision.

The claims arise from allegations that, among other things, these Defendants provided Plaintiff with an automobile insurance policy that did not provide full / comprehensive coverage for a vehicle that Plaintiff purchased from Cerritos Lexus through Juvenal Farias, which Farias represented to be a 2015 Lexus model number “RC F” with “[n]o issues, no problems,” only for Plaintiff to later discover that the vehicle was salvage-titled, carried an invalid VIN number, was not marketable, and may have had other problems.

On September 16, 2022, Plaintiff’s counsel served discovery on counsel for Defendants Schoolsfirst and Guerrero, including Form Interrogatories, Set 1 (FROGs, Set One), and Request for Production of Documents, Sets 1 (RPDs, Set One).

Counsel for Schoolsfirst and Guerrero did not request an extension to provide responses to this discovery.

By February 8, 2023, Plaintiff had not received responses to FROGs, Set One, and RPDs, Set One, from Schoolsfirst or Guerrero.

That same day, Plaintiff filed motions to compel responses to FROGs, Set One, and RPDs, Set One, from Schoolsfirst and Guerrero. The motions also sought monetary sanctions. (See CRS# 6234 and 1916.)

On September 13, 2023, Schoolsfirst and Guerrero opposed Plaintiff’s motions in a combined opposition. A declaration by counsel attached to the opposition represents that these Defendants failed to timely respond based on a failure to calendar the response date for the discovery. Counsel also represents that Defendants will provide responses and/or production relating to FROGs, Set One, and RPDs, Set One, prior to this hearing, thus indicating that as of September 13, 2023, Schoolsfirst and Guerrero had not served responses to these discovery requests.

On September 14, 2023, Plaintiff replied to Schoolsfirst and Guerrero’s opposition. The reply represents that as of that date, Schoolsfirst and Guerrero had failed to serve responses and/or production to FROGs, Set One, and RPDs, Set One.

On September 25, 2023, the Court held a hearing on a different motion involving the same parties, at which time counsel for Schoolsfirst and Guerrero represented that Schoolsfirst and Guerrero have since served responses and/or production to FROGs, Set One, and RPDs, Set One.

Plaintiff’s motions to compel are now before the Court.

Motion to Compel Responses to Interrogatories and Production

Legal Standard

A motion to compel an initial response can be made on the ground that a party did not serve a timely response to interrogatories or a demand to produce. (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [demand to produce]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 (Sinaiko).) To establish this ground, a movant must show:

(1) Proper service (see Code Civ. Proc., §§ 2030.080, subd. (a) [interrogatories], 2031.040 [demand to produce]);

(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., §§ 2030.260, subds. (a), (b) [interrogatories], 2031.260, subds. (a), (b) [demand to produce]); and

(3) No timely response (see Code Civ. Proc., §§ 2030.290 [interrogatories], 2031.300 [demand to produce]).

A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See CBS, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)

Order Compelling Initial Responses: MOOT.

Plaintiff provides evidence showing his service of FROGs, Set One, and RPDs, Set One, on Schoolsfirst and Guerrero. (Motions, Ex. 1, Proof of Service [two separate FROGs, Set One, and RPDs, Set One, shown in Exhibit 1, one directed at Schoolsfirst and another directed at Guerrero].)

Plaintiff provides evidence showing that Schoolsfirst’s and Guerrero’s deadline to respond to FROGs, Set One, and RPDs, Set One—per Plaintiff, October 18, 2022—has expired. (Motions, Vardapour Decl., ¶ 4.)

Plaintiff provides evidence showing that as of October 18, 2022, Schoolsfirst and Guerrero had failed to respond to FROGs, Set One, and RPDs, Set One. (Motions, Vardapour Decl., ¶ 5; Replies, Vardapour Decl., ¶ 3.)

The Court’s review of FROGs, Set One, and RPDs, Set One, shows that they are within the scope of discovery. (See Motions, Vardapour Decl., Ex. 1.)

However, the Court notes that Plaintiff’s motions are MOOT because prior to this hearing, Schoolsfirst and Guerrero served responses to FROGs, Set One, and RPDs, Set One. (Supplemental Dec. of Mark Worthge in support of combined Opposition to Motions to Compel, filed September 25, 2023.)

Sanctions: GRANTED.

The Court must impose monetary sanctions against anyone—party, nonparty, or attorney—who unsuccessfully makes or opposes the motion, unless it finds that the person to be sanctioned acted withs substantial justification or other circumstances make the imposition of the sanctions unjust. (See Code Civ. Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [demand to produce]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404 [interrogatories and demand to produce].)

The 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, subd. (a).)

The Court must also impose a $250.00 monetary sanction on any party, person, or attorney who does not respond in good faith to a request for the production of documents. (Code Civ. Proc., § 2023.050, subd. (a)(1).) This sanction is in addition to any other sanction imposed pursuant to Code of Civil Procedure sections 2023.010 to 2023.040. (Code Civ. Proc., § 2023.050, subd. (a).)

The Court finds that sanctions are merited here even if discovery has been produced by Defendants Schoolsfirst and Guerrero. Even if a calendaring mistake initially caused these Defendants’ failure to timely respond to FROGs, Set One, and RPDs, Set One, Schoolsfirst and Guerrero became aware of the need for initial responses to this discovery no later than February 8, 2023, when the motions before the Court were filed. (Combined Opp’n, Worthge Decl., ¶¶ 4-5.) Yet, these Defendants failed to produce the relevant discovery for more than seven months (Replies, Vardapour Decl., ¶ 3), only making their production less than a week before this hearing. Imposing monetary sanctions on Schoolsfirst and Guerrero for such delay is neither without substantial justification nor unjust.

In relation to FROGs, Set One, sanctions are GRANTED in the amount of $2,252.34, comprised of (1) three hours expended drafting the motions at a rate of $350 per hour, (2) three hours to be expended replying to the opposition and attending this hearing at a rate of $350 per hour, and (3) $152.34 in hearing and e-filing costs. (See Motions, Vardapour Decl., ¶¶ 6-6(b).) Schoolsfirst and Guerrero are individually liable for $1,126.17 in sanctions related to FROGs, Set One.

In relation to RPDs, Set One, sanctions are GRANTED in the amount of $2,285, comprised of (1) 2.1 hours expended drafting the motions at a rate of $350 per hour, (2) three hours to be expended replying to the opposition and attending this hearing at a rate of $350 per hour, (3) $152.34 in hearing and e-filing costs, (4) $250 in sanctions against Schoolsfirst pursuant to Code of Civil Procedure 2023.050, subdivision (a)(1), and (5) $250 in sanctions against Guerrero pursuant to Code of Civil Procedure 2023.050, subdivision (a)(1). (See Motions, Vardapour Decl., ¶¶ 6-6(b); Replies, Vardapour Decl., ¶ 7.) Schoolsfirst and Guerrero are individually liable for $1,142.50 in sanctions related to RPDs, Set One.

As requested in the motions, Counsel Mark W. Worthge, Andrew K. Aaronian, and Litchfield Cavo LLP are jointly and severally liable along with the Defendants for all the above sanctions.

Conclusion

I.

Plaintiff Javier Alarcon Munoz’s Motion to Compel Responses to Form Interrogs. General (Set 1) Against Defendants Schoolsfirst Insurance Services, LLC and Ivonne Maria Guerrero is MOOT.

The corresponding Request for Monetary Sanctions is GRANTED in the amount of $2,252.34.

Defendants Schoolsfirst and Ivonne Maria Guerrero as well as Counsel Mark W. Worthge, Andrew K. Aaronian, and Litchfield Cavo LLP are jointly and severally liable for these sanctions.

Defendant Schoolsfirst and counsel are ORDERED to remit $1,126.17 to Plaintiff Javier Alarcon Munoz within 30 days of this ruling.

Defendant Ivonne Maria Guerrero and counsel are ORDERED to remit $1,126.17 to Plaintiff Javier Alarcon Munoz within 10 days of this ruling.

II.

Plaintiff Javier Alarcon Munoz’s Motion to Compel Responses to Requests for Production (Set 1) Against Defendants Schoolsfirst Insurance Services, LLC and Ivonne Maria Guerrero is MOOT.

The corresponding Request for Monetary Sanctions is GRANTED in the amount of $2,285.

Defendants Schoolsfirst and Ivonne Maria Guerrero as well as Counsel Mark W. Worthge, Andrew K. Aaronian, and Litchfield Cavo LLP are jointly and severally liable for these sanctions.

Defendant Schoolsfirst Insurance Services, LLC and counsel are ORDERED to remit $1,142.50 to Plaintiff Javier Alarcon Munoz within 30 days of this ruling.

Defendant Ivonne Maria Guerrero and counsel are ORDERED to remit $1,142.50 to Plaintiff Javier Alarcon Munoz within 30 days of this ruling.