Judge: Armen Tamzarian, Case: 22STCV15941, Date: 2024-12-05 Tentative Ruling
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Case Number: 22STCV15941 Hearing Date: December 5, 2024 Dept: 52
Plaintiff Sara Simms’s Motion for Leave
to File Second Amended Complaint
Plaintiff
Sara Simms moves for leave to file a second amended complaint.
Code
of Civil Procedure section 473(a)(1) provides, “The court may, in furtherance
of justice, and on any terms as may be proper, allow a party to amend any
pleading.” Courts
exercise their discretion “liberally to permit amendment,” and “[t]he policy
favoring amendment is so strong that it is a rare case in which denial of leave
to amend can be justified.” (Howard
v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) A
motion for leave to amend will normally be granted unless (a) the party seeking
to amend has delayed bringing the proposed amendment; and (b) the delay in
seeking leave to amend will cause prejudice to an opposing party. (Hirsa
v. Superior Court (1981) 118 Cal.App.3d 486, 490.)
Plaintiff did not delay bringing this motion. She first filed the motion in January
2023. Defendants successfully moved to
compel arbitration, so the hearing on the motion was vacated. In 2024, plaintiff moved to withdraw the
entire case from arbitration under the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act. The
court granted plaintiff’s motion on October 29, 2024. Plaintiff promptly filed this motion on
November 4. She could not have done so
earlier.
Even if plaintiff had delayed seeking to leave to
amend, defendants do not show prejudice resulting from the delay. The amendments are minimal. Plaintiff’s proposed second amended complaint
does not add any new cause of action.
Defendants make only a conclusory argument that granting leave to amend
will result in new discovery, more motions, and increase the costs of
litigation. Defendants do not show
sufficient prejudice to warrant denying leave to amend. (See Jo Redland Trust, U.A.D. 4-6-05 v.
CIT Bank, N.A. (2023) 92
Cal.App.5th 142, 168 [“An amendment causes no prejudice where it makes no
difference in the proof and involves no unfairness”].)
Disposition
Plaintiff
Sara Simms’s motion for leave to file a second amended complaint is granted. Plaintiff shall file her second amended
complaint forthwith.
Plaintiff Sara Simms’s Motion for Issue,
Evidence, and Monetary Sanctions Against Defendant Simon Ourian
Plaintiff
Sara Simms moves for issue and evidence sanctions against defendant Simon
Ourian. She further moves for $4,263.67
in monetary sanctions against Ourian and his counsel, Steven M. Kroll. If a responding party disobeys “an order compelling further response to
interrogatories, the court may make those orders that are just, including”
issue sanctions, evidence sanctions, terminating sanctions, or monetary
sanctions. (Code Civ. Proc., § 2030.300,
subd. (e).)
Ourian disobeyed an order compelling further
responses to interrogatories. On August
28, 2024, the court ordered Ourian “to serve further verified responses to
plaintiff’s special interrogatories, set one, Nos. 1-4 without objections
within 30 days.” (Gutierrez Decl., Ex. C,
p. 5.) Ourian served supplemental
responses that included objections.
(Gutierrez Decl., Ex. G.) He also
did not serve them within 30 days as required.
The proof of service of the supplemental responses is dated October
8. (Ibid.)
On August 28, 2024, the court further ordered Ourian
and his counsel “to pay plaintiff $1,380 in sanctions within 30 days.” (Gutierrez Decl., Ex. C, p. 6.) Ourian and his counsel did not do so. In the opposition filed on November 20,
Ourian’s counsel states he is “processing the sanctions payment and will send
it to Plaintiff’s attorney this week.”
(Kroll Decl., ¶ 11.) Assuming he
did so, the payment will be about two months late.
Appropriate Sanctions
Discovery
sanctions should be imposed incrementally, “starting with monetary sanctions and ending with the ultimate
sanction of termination.” (Lopez v.
Watchtower Bible & Tract Society of New York, Inc. (2016) 246
Cal.App.4th 566, 604.) Appropriate sanctions are those “such as are
suitable and necessary to enable the party seeking discovery to obtain the
objects of the discovery he seeks, but [not] which are designed not to
accomplish the objects of discovery but to impose punishment.” (Laguna Auto Body v. Farmers Ins. Exchange (1991)
231 Cal.App.3d 481, 488.)
The court will only impose monetary sanctions. Ourian ultimately served supplemental
responses without objections on November 20, 2024. (Kroll Decl., ¶ 7, Ex. 4.) Plaintiff has thus accomplished the objects
of discovery. Imposing evidence or issue
sanctions now would serve only to punish Ourian.
Ourian’s opposition argues sanctions are unjust because
the initial supplemental responses included adequate answers and the delay was
accidental. Regardless of the delay,
Ourian disobeyed the order compelling further responses without objections. He did not act with substantial justification
in doing so. Monetary sanctions are just
under the circumstances.
Amount of Sanctions
Plaintiff
did not reasonably incur $4,263.67 in expenses for this motion. Plaintiff’s counsel states he spent 6.7 hours
at $625 per hour on the motion, reply, and hearing. (Gutierrez Decl., ¶ 17.) This simple motion did not reasonably require
more than 4.5 hours of work. The court
will therefore impose sanctions of $2,888.67 for 4.5 hours of attorney fees at
$625 per hour plus $76.17 in filing fees.
Disposition
Plaintiff Sara
Simms’s motion for discovery sanctions is granted in part as to monetary sanctions. Defendant Simon Ourian and
his counsel of record, Steven M. Kroll are ordered to pay plaintiff $2,888.67
in sanctions within 20 days. Ourian and
his counsel are jointly and severally liable for the sanctions.
Plaintiff Sara Simms’s Motion to
Compel Responses to Form Interrogatories – General, Set Two Against Defendant
Epione Beverly Hills, Inc.
Plaintiff
Sara Simms moves to compel defendant Epione Beverly Hills, Inc. to respond to
form interrogatories – general, set two.
When the responding party fails
to serve a timely response to interrogatories, the requesting party may move
for an order compelling responses. (Code
Civ. Proc., § 2030.290, subd. (b).)
Failing to serve a timely response results in waiving any
objections. (Id., subd. (a).)
Plaintiff is entitled to an order compelling Epione
Beverly Hills, Inc. to respond without objections to form interrogatories –
general, set two. Plaintiff electronically
served the interrogatories on Epione Beverly Hills, Inc. on September 6,
2024. (Gutierrez Decl., ¶¶ 3-4, Exs.
A-B.) Responses were therefore due October
9. Defendant had not responded as of
October 16, when plaintiff filed this motion.
(Gutierrez Decl., ¶ 5.) Epione
Beverly Hills, Inc. thus did not serve timely responses to the form
interrogatories and waived all objections to them.
Sanctions
Plaintiff moves for $2,076.17 in sanctions against
defendant Epione Beverly Hills, Inc. and its counsel, Steven M. Kroll. Failing to respond to an authorized method of
discovery is a misuse of the discovery process subject to monetary
sanctions. (Code Civ. Proc., § 2023.010,
subd. (d).) Epione Beverly Hills, Inc. did
not respond to authorized discovery. It
did not act with substantial justification.
Sanctions are just under the circumstances.
Plaintiff did
not, however, reasonably incur $2,076.17 in expenses for this motion. Plaintiff’s counsel attests to 3.2 hours of
attorney fees at $625 hourly. (Gutierrez
Decl., ¶ 12.) This simple motion did not
reasonably require more than 2.0 hours of work.
The court will therefore impose sanctions of $1,326.17
for 2.0 hours of attorney fees at $625 per hour plus $76.17 in filing fees.
Disposition
Plaintiff Sara Simms’s motion to compel responses to
form interrogatories is granted. Defendant Epione
Beverly Hills, Inc. is ordered to serve verified responses without
objections to form interrogatories – general, set two, within 30 days. Defendant Epione Beverly Hills, Inc. and
counsel of record Steven M. Kroll are ordered to pay plaintiff $1,326.17
in sanctions within 30 days. Defendant
and its counsel are jointly and severally liable for the sanctions.