Judge Christopher K. Lui, Case 21STCV37308 2023-01-06 Tentative Ruling

Judge: Christopher K. Lui, Case: 21STCV37308, Date: 2023-01-06 Tentative Ruling

Case Number: 21STCV37308 Hearing Date: January 6, 2023 Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Plaintiffs allege that there was a Battery Defect in the 2019 Chevrolet Bolt that Plaintiffs leased, and Defendant has failed to repair the vehicle to conform to warranties.

Plaintiffs move for an order compelling Defendant to comply with the Court’s September 7, 2022 discovery order granting Plaintiffs’ motion to compel further responses to document demands, set one, and ordering sanctions of $500 per day for each day following 5 calendar days that Defendant does not fully comply with the discovery order.

TENTATIVE RULING

Plaintiffs John Scandurra and Premini Scandurra’s motion to compel compliance and request for monetary sanctions is DENIED.

ANALYSIS:

Motion To Compel Compliance

CCP § 2031.300(c) provides:

Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, 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. If a party then fails to obey the order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(Civ. Proc. Code § 2031.300(c).)

Plaintiffs argue that Defendant has failed to serve any court-ordered supplemental response or documents by the court-ordered deadline, nor even by the date this motion was filed.

In the Opposition, Defendant admits that responses were not served, claiming the failure to do so was the result of mistake, inadvertence and excusable neglect in that counsel failed to calendar the deadline to respond. (Kay Decl., ¶¶ 4, 5.) Defendant indicates that supplemental responses and documents will be served by the hearing of this motion.

On December 29, 2022, Plaintiffs’ counsel Jami I. Littles filed a supplemental declaration indicating that as of December 29, 2022, Defendant has not served Plaintiffs with code-complaint responses.

Here, the Court need not order compliance with an order that has already issued: Defendant is already required to comply; another order doing so would be superfluous. Because Defendant has not served responses, the imposition of monetary sanctions would be appropriate, but the Court declines to impose $500/day sanctions. The use of coercive daily monetary sanctions, while unusual, has a basis in the Court's inherent power to curb pervasive litigation abuse. (See, e.g., Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259.) However, Padron involved a party's express and unequivocal repudiation of a Court's order to produce documents. The record before the Court in the instant case does not show a similar willful rejection of the Court's prior order.

While the Court would have also imposed a one-time monetary sanction for failure to comply with the September 7, 2022 order, and monetary sanctions in the amount of attorneys’ fees incurred in bringing this motion, Plaintiffs did not properly request such in the notice of motion, as required by CCP § 2023.040.

A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.

(Civ. Proc. Code, § 2023.040.)

The person and/or attorney against whom such sanctions are sought was not identified, and no sanctions in the amount of attorneys’ fees incurred in bringing this motion were requested. As such, the request for monetary sanctions is DENIED.

The motion to compel compliance is DENIED. The more appropriate, non-redundant request would have been to request issue, evidentiary or terminating sanctions, by way of a properly-noticed motion requesting such. If full compliance from Defendant General Motors with its discovery obligations is not forthcoming, the Court invites Plaintiffs to bring such a motion.