Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This case arises from a motor vehicle v. pedestrian accident on July 25, 2023.  Plaintiff Allen Ashkenazi was in a crosswalk with a green pedestrian light, when Defendant Drewella McLendon made a left turn crossing over the crosswalk and severely injuring Plaintiff.  At the time of the accident, McLendon was driving in the course and scope of her employment with co-defendants Stepping Stones Group and Center for Behavioral Education and Social Therapies.   

On May 30, 2024, Plaintiff propounded four sets of discovery requests on Stepping Stones: Form Interrogatories (set one); Special Interrogatories (set one); Demand for Production (set one), and Requests for Admissions (set one).  Responses were due by July 2, 2024.  On May 31, 2024, Plaintiff propounded another two sets of discovery requests on Stepping Stones: Special Interrogatories (set two), and Demand for Production of Documents (set two).  Responses were due by July 3, 2024. 

Defendant requested an extension to July 16, 2024, which was granted.  However, Defendant did not respond by July 16.  On July 22, Plaintiff’s counsel sent a reminder that responses were due and objections were waived.  On July 30, defense counsel notified Plaintiff that his father had passed away but assured Plaintiff he would have responses “next week sometime.”  On the same date, another member of defense counsel’s law firm requested an extension until “the end of the week or Monday to complete.”  Plaintiff agreed to the extension on the condition that objections were waived.   

On July 31, Plaintiff’s counsel was contacted by yet another member of defendant’s firm who stated that Defendant’s responses would be served “within one week” (or by August 7, 2024).  Plaintiff’s counsel denied the request for extension and stated that objections were waived, but Plaintiff would not be “rushing to file” a motion to compel.   

This hearing is on Plaintiff’s six motions to compel Stepping Stones’ responses to Form Interrogatories (Set One), Special Interrogatories (Sets One and Two), Document Demands (Sets One and Two), motion to deem admitted Requests for Admissions (“RFAs”) and request for sanctions.  Over a week after the motions were filed, Defendant served its responses.  Accordingly, the motions to compel initial responses are moot, and the only issue remaining for this Court is whether sanctions should be awarded.   

DISCUSSION 

Requests for Admissions 

Regardless of the reason or excuse for the delay in responding to RFAs, it is¿mandatory¿that the court impose a monetary sanction on a party whose¿failure¿to¿timely respond¿to the RFAs necessitated the motion.¿ (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 634;¿Code Civ. Proc., § 2033.280(c).)  While delayed responses may avoid a motion to deem admitted, they will not avoid monetary sanctions.  (Code Civ. Proc., § 2033.280 subd. (c);¿Gonzales v. Harris, 2021 Cal. Super. LEXIS 29267 at *6¿(even if delayed responses are served, sanctions are mandatory because the motion had to be brought, regardless of whether it is ultimately denied because responses are served before the hearing).) 

In determining the appropriate amount of sanctions, the Court¿starts¿with the¿lodestar¿which is the reasonable hourly rate multiplied by the reasonable hours spent.¿ (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096; see also¿Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) 

Defense counsel attests his hourly rate is $670.  But counsel does not elaborate further on his experience or years in practice.  He also does not provide any indication that this rate is what he customarily charges, that his rate is reasonable given the rates in the prevailing legal market, or that his rate has been approved by other courts.  Accordingly, the Court has no basis to conclude that his hourly rate is reasonable and will reduce the rate to $250. 

As to the hours spent on the motion, counsel attests he spent 3 hours drafting and tagging exhibits for the motion; he expects to spend one hour in reviewing the expected opposition and drafting a reply, and that he will require at least 3 hours of travel time and one hour at the hearing.  The Court concludes that while the hours spent drafting the motion, attending the hearing, reviewing the opposition and preparing a reply are reasonable, those for travel are excessive.  The Court will award six hours or $1,500 plus $61.50 in motion fees for a total of $1,561.50.   

Interrogatories 

Plaintiff requests sanctions based on Defendant’s failure to timely respond to Plaintiff’s form and special interrogatories (sets one and two).  Plaintiff relies on Code Civ. Proc. § 2030.290 which states: “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 interrogatories, 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.” 

Although § 2030.290 imposes sanctions only when a party unsuccessfully makes or opposes a motion to compel, and Defendant is not opposing the motion to compel (and indeed provided discovery responses to all the interrogatories), Local Rule 3.1348 allows the Court to impose sanctions “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.” 

Moreover, the Court may award sanctions for discovery abuses which include the failure to timely respond to discovery.  (Code Civ. Proc., §§¿2023.010 subd. (d),¿2023.030).)  “Courts are authorized to exercise their discretion to award discovery sanctions for abuse of the discovery process.”  (NewLife Sciences, LLC v. Weinstock (2011) 197 Cal.App.4th 676, fn. 10 (citing Code Civ. Proc., §§¿2023.010,¿2023.030).) 

Defendant argues that no sanctions should be imposed because there was substantial justification for the failure to timely respond and the circumstances make the imposition of sanctions unjust.  The case was initially handled by Joseph Escarez, who left defense counsel’s firm and was replaced by Debra Cahir who also left the firm within a short time after taking over the matter.  Lead attorney Jeffrey Lenkov then became the handling attorney, but his father died in July 2024, and Mr. Lenkov thereafter assigned the file to Tanya Prouty.  Ms. Prouty needed some time to become familiar with the file, including the outstanding discovery, and as soon as she became aware the discovery was outstanding, she tried to obtain the necessary information from the client to prepare the responses as soon as possible.  However, it took some time to gather the information from the client, so Defendant was not able to serve verified responses until August 27, 2024.     

In Opposition, Plaintiff points out that Defendant was unable to respond despite Plaintiff granting three extensions.  Further, while defense counsel claims not to have had the time or resources to respond, during the pendency of the interrogatories, counsel had the time and resources to propound multiple sets of discovery including 48 special interrogatories, 34 demands for production, 29 RFAs, form interrogatories and a notice of Plaintiff’s deposition with 67 demands to produce.  In addition, while sympathetic to the death of counsel’s father, Mr. Lenkov’s father passed almost a month after the discovery was already overdue, and Mr. Lenkov was able to assign the case to another attorney when his father passed.  Meanwhile, Plaintiff is a solo practitioner and has managed to respond timely to all discovery requests in this matter.        

On these facts, the Court concludes that Defendant has not shown substantial justification for its untimely responses or that the circumstances would make the imposition of sanctions unjust.  The death of Mr. Lenkov’s father was not the cause of overdue responses, which were already untimely at the time of the passing.  There was no excuse for defense counsel, who was part of a 25-attorney firm, to fail to serve timely responses, particularly where it had the time and resources to serve its own extensive sets of discovery requests.       

In determining the amount of sanctions, the Court starts with the lodestar and a reasonable hourly rate of $250.  As to the amount of hours expended, counsel represents he spent 3 hours for each motion to compel special interrogatories (set one) and form interrogatories (set one), and one hour on the motion to compel special interrogatories (set two).  Counsel also attests he expects to spend one hour in reviewing the opposition and preparing the reply as to each motion, and he expects to spend three hours of travel time and one hour to attend the hearing.   

Counsel acknowledges that he can only seek the travel and hearing time once as he will only be attending one hearing on the six motions to compel he has filed.  Also, Plaintiff has only filed one omnibus reply to the six motions to compel, and accordingly, the Court will award only one hour total for all time spent to review the oppositions (which were largely identical) and prepare the consolidated reply, which time is already accounted for in the sanctions awarded for the motion to deem RFAs admitted.1  In sum, the Court will award seven hours to prepare all three motions to compel (or $1,750) plus motion fees ($184.50) for a total of $1,934.50.  

Document Demands 

Plaintiff requests sanctions based on Defendant’s failure to timely respond to Plaintiff’s document demands (sets one and two).  Plaintiff relies on Code of Civil Procedure § 2031.300 which states: “(c) 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.” 

Although § 2030.290 imposes sanctions only when a party unsuccessfully makes or opposes a motion to compel, and Defendant is not opposing the motion to compel (and indeed provided discovery responses to all document demands), Local Rule 3.1348 allows the Court to impose sanctions “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.” 

Moreover, the Court may award sanctions for discovery abuses which include the failure to timely respond to discovery.  (Code Civ. Proc., §§¿2023.010 subd. (d),¿2023.030).)  “Courts are authorized to exercise their discretion to award discovery sanctions for abuse of the discovery process.”  (NewLife Sciences, 197 Cal.App.4th at fn. 10 (citing Code Civ. Proc., §§¿2023.010 2023.030).) 

In determining the amount of sanctions, the Court uses the lodestar and a reasonable hourly rate of $250.  As to the amount of hours spent, counsel represents he spent 3 hours on the motion to compel document demands (set one), and one hour on the motion to compel document demands (set two).  Counsel also attests he expects to spend one hour in reviewing the opposition and preparing the reply as to each motion, and he expects to spend three hours of travel time and one hour to attend the hearing.  Counsel acknowledges that he can only seek the travel and hearing time once as he will only be attending one hearing on the six motions to compel he has filed.  Also, Plaintiff has only filed one omnibus reply to the six motions to compel, and accordingly, the Court will award only one hour total for all time spent to review the opposition and prepare the reply, which time is already accounted for in the sanctions awarded for the motion to deem RFAs admitted.  In sum, the Court will award four hours to prepare the two motions to compel (or $1,000) plus motion fees ($123) for a total of $1,123. 

CONCLUSION 

Based on the foregoing, the Court DENIES Plaintiff’s motions to compel as moot and GRANTS IN PART and DENIES IN PART the request for sanctions.  The Court will award sanctions in the amount of $4,619 jointly and severally against Defendant and its counsel’s law firm Zelm, Erlich & Mack.   

 

 

IT IS SO ORDERED. 

 

DATED: October 18, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court