Judge: Cherol J. Nellon, Case: 21VEUD00952, Date: 2023-11-28 Tentative Ruling

Case Number: 21VEUD00952    Hearing Date: November 28, 2023    Dept: 14

Redwood Holdings v. Shaposhnik- 21VEUD00952

(1)-(3) Motions to Compel

            Plaintiff now moves this court, per Code of Civil Procedure §§ 2030.290, 2031.300, and 2033.280 for orders (1) compelling Defendant Shaposhnik to serve initial responses to Plaintiff’s Form and Special Interrogatories, Set No. One, and Requests for Production, Set No. One, (2) deeming Plaintiff’s Requests for Admissions Set No. One as admitted by Defendant Shaposhnik, and (3) awarding sanctions of $555 per motion, amounting to a total of $1,665.00, against Defendant Shaposhnik and her counsel, Mr. Mainak D’Attaray jointly and severally.

Decision

The motions are DENIED as MOOT. However, sanctions of $1,665.00 are awarded to Plaintiff, payable by Defendant Shaposhnik and her counsel, Mr. Mainak D’Attaray, jointly and severally. Sanctions are to be paid to Plaintiff’s counsel within 30 days.

Discussion

            The facts surrounding these motions are undisputed. Plaintiff served discovery on Defendant’s counsel on January 18, 2022. No responses came. Plaintiff filed these motions on February 4, 2022.

            On February 10, 2022, this court ordered the case stayed and took these motions off-calendar. On May 31, 2023, this court ordered the stay lifted due to Defendant’s failure to comply with the court’s orders. At that hearing, the court placed these motions back on calendar for June of 2023.

            For various reasons having to do entirely with the court’s own calendar, the motions were continued multiple times. Plaintiff eventually served responses on August 24, 2023. However, she had not filed an opposition when these motions eventually did come on for hearing on October 18, 2023. This court continued the hearing to permit the filing of an opposition and reply.

            Defendant does not dispute this court’s power to award sanctions pursuant to Code of Civil Procedure §§ 2030.290, 2031.300, and 2033.280, or even the general propriety of doing so when one party forces another to go through motion practice just to get initial responses. But she argues that sanctions against her would be inappropriate because (1) the case was stayed and (2) the discovery was served at the wrong address. She also argues that sanctions against her attorney would be inappropriate because he did not advise her to withhold discovery. Each argument is addressed in turn.

            The case was not stayed until several days after the motions were filed. The stay was lifted on May 31, 2023, multiple months before responses were served. Nor was there an appellate stay. The only order Defendant appealed in this case was the court’s order to post a bond. (Order filed April 14, 2023; Notice of Appeal filed May 12, 2023). And as this court explained in its order on the motion for reconsideration, there is no appellate stay on an order to pay money unless a bond is posted. Code of Civil Procedure § 917.1(a)(1).

            The service issue stems from the fact that Defendant’s answer and jury demand both provide only one address for her counsel: an office suite in Long Beach. This is the address to which Plaintiff directed her discovery. Defense counsel’s subsequent pleadings bear two addresses; the one in Long Beach on top and identified as the “Main Office,” underneath which comes the direction “All Notices, Correspondences, and Pleadings To” a different location, in Lake View Terrace. The fundamental ambiguity of this practice provides little shelter to Defendant, especially since the mailing address counsel has on record with the court is the Long Beach address. Plaintiff cannot be faulted for using the address opposing counsel has provided to the court. But even could the initial failure to respond be chalked up to a simple misunderstanding, Defendant well knew the responses were owed when the stay was lifted on May 31, 2023. It should not have taken her almost three months to provide them.

            Finally, the failure to make these responses can be laid at the feet of counsel. The burden is on counsel to prove that the failure to make responses was the result of the client’s decisions rather than theirs. Ghanooni v. Super Shuttle (1993) 20 Cal.App.4^th 256, 261. The only evidence counsel offers is the fact that responses were eventually offered. That is not material to the issue, which is the delay and timing of those responses.

Conclusion

            Because responses have been served, the motions are DENIED as MOOT. However, because Plaintiff had to engage in motion practice to get responses, and because they came so late, sanctions of $1,665.00 are awarded to Plaintiff, payable by Defendant Shaposhnik and her counsel, Mr. Mainak D’Attaray, jointly and severally. Sanctions are to be paid to Plaintiff’s counsel within 30 days.