Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

 

This is a legal malpractice action.  Plaintiff Annunziata Crupi retained Defendant Barkhordarian Law Firm, P.C. to represent her in an employment dispute with the University of Southern California (“USC”).  (Compl. ¶ 1.)  Plaintiff alleged she had been wrongfully terminated and also claimed whistleblower retaliation and discrimination.  (Id.) 

Plaintiff alleges the Defendant was negligent in its representation of her in the underlying employment case by acquiescing to arbitration when the arbitration agreement was not enforceable and was repudiated by USC; failing to properly investigate the amount of damages; failing to properly allege all available claims; providing unilateral discovery to USC during settlement negotiations; asking Plaintiff to sign a settlement agreement that would have deprived Plaintiff of rightfully acquired intellectual property, would have damaged Plaintiff’s career and reputation and would have subjected her to self-incrimination; requiring Plaintiff to pay its fees when Plaintiff refused to sign the settlement agreement; failing to disclose its attorneys were associated with USC, and failing to request right to sue letters from the EEOC.  (Id. ¶¶ 3-19, 40, 45.) 

The operative complaint alleges four claims for (1) legal malpractice, (2) breach of duty, (3) fee dispute, and (4) breach of contract.  Plaintiff seeks “financial damage, social status damage, loss of life enjoyment, physical and mental health damage, emotional damage, possible self-incrimination, possible future conviction [and] possible death.”  (Id. ¶34.)  Plaintiff is appearing in pro per.   

This hearing is on Defendant’s motions to compel responses to Form Interrogatories (Set One) (“FROGs”), Special Interrogatories (Set One) (“SROGs”), and Document Demands (Set One) (“RFPs”), motion to deem admitted Requests for Admissions (“RFAs”), and request for sanctions.   

LEGAL STANDARD 

A motion to compel an initial response can be made on the ground that a party did not serve a timely response.  (Code Civ. Proc., § 2030.290, subd. (a), § 2031 subd. (a) and (b); see¿Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.)¿¿ Failing to timely respond waives any objections. (CCP § 2030.290(a).)¿ 

To move to compel initial responses, a movant must show: (1) proper service (see¿Code Civ. Proc., § 2030.080, subd. (a)); (2) expiration of the deadline for the initial response, 30 days after service or on date agreed to by the parties (see¿Code Civ. Proc., § 2030.260, subds. (a),¿(b)); and (3) no timely response (see¿Code Civ. Proc., § 2030.90).¿ 

There is no “meet and confer” requirement where there is a total failure to respond to discovery.¿ (Sinaiko, 148 Cal.App.4th at 411.)¿ There is also no separate statement requirement for a motion to compel initial responses.¿ (Cal. Rules of Court Rule 3.1345(b).)¿ 

Where the court grants a motion to compel responses, sanctions shall be imposed against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel, unless the person or entity acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., §§ 2030.290, 2031.90, 2033.280, subds. (c);¿Cal. Rule of Court, rule 3.1348.)¿ In addition, the court may award sanctions for any misuse of discovery process.¿ (Code Civ. Proc. §§ 2023.010¿and¿2023.030.)¿ A failure to timely respond constitutes a misuse of the discovery process.¿ (Code Civ. Proc, § 2023.010, subd. (d).)¿¿ 

DISCUSSION 

Interrogatories 

Code Civ. Proc. § 2030.290(a) provides that if a party fails to serve a timely response to served interrogatories, that party waives any objections, and the propounding party may move for an order compelling responses thereto.  Plaintiff’s responses to Defendant’s FROGs and SROGs were due by July 24, 2024.  Instead of serving a response, Plaintiff served a pleading that stated she “will respond to the discovery requests when time and financial resources allow, and hopefully within the next six months.”  (Ex. 2 to Motion).  To date, Plaintiff has not served any responses.  The Opposition raises a host of objections to the interrogatories.  As the objections were not raised within the time to respond, they are deemed waived.  (Code Civ. Proc. § 2030.290.)  Accordingly, pursuant to Cal. Code Civ. Proc. § 2030.290, this Court grants the motion to compel responses to the interrogatories within 20 days of this Court’s Order. 

Document Demands 

Code Civ. Proc. § 2031.300 (a) and (b) provides that if a party fails to serve a timely response to a demand for production, that party waives any right to serve objections to the demand, including ones based on privilege or work product protection, and the propounding party may move for an order compelling responses thereto.  Plaintiff’s responses to Defendant’s RFPs were due by July 24, 2024.  Instead of serving a response, Plaintiff served a pleading that stated she “will respond to the discovery requests when time and financial resources allow, and hopefully within the next six months.”  (Ex. 2 to Motion).  As of the date of this motion, no responses have been provided.  The Opposition raises a slew of objections to the RFPs.  As the objections were not raised within the time to respond, they are deemed waived.  (Code Civ. Proc. § 2031.300.)  Accordingly, pursuant to Code Civ. Proc. § 2031.300, this Court grants the motion to compel responses to the RFPs within 20 days of this Court’s Order. 

Requests for Admissions 

Where a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.  (Code Civ. Proc., § 2033.280, subd. (b).)  The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect.  (Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).) 

The court shall grant a motion to deem admitted requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  (Code Civ. Proc., § 2033.280, subd. (c).) 

Here, Plaintiff’s responses to Defendant’s RFAs were due by May 9, 2024.  On November 4, 2024, Plaintiff served responses but the responses are not substantially compliant.  Plaintiff asserts objections to 8 of the 10 RFAs, when objections were deemed waived by the failure to timely respond.  While the court may grant relief from waiver, Plaintiff must show she (1) has subsequently served a substantially compliant response, and (2) that her failure to respond was the result of mistake, inadvertence, or excusable neglect.  (Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).)  Plaintiff has shown neither.  Accordingly, the Court orders the RFAs deemed admitted.  (Code Civ. Proc. § 2033.280; St. Mary v. Superior Ct. (2014) 223 Cal.App.4th 762, 775–76.) 

Sanctions 

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.)   

When determining the proper hourly rate for monetary sanctions, counsel’s rate is not limited to insurance defense rates, but a party is entitled to attorneys’ fees based upon reasonable hourly rates.  (Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1058.)  An attorney who accepts a reduced rate from a client is not precluded from seeking a reasonable hourly rate pursuant to the lodestar method. (Id.)  The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. (Id.)  This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. (Id.) 

Here, defense counsel requests an hourly rate of $649.  He has been practicing for 30 years and is a specialist in the field of professional responsibility defense, including defending attorneys in legal malpractice, malicious prosecution and other actions.  His rate was approved in Melissa Zelenovic v. The Law Offices of Leonard J. Meyberg, Jr., et al., LASC Case No. 22STCV22762 by the Honorable Daniel M. Crowley.  (Ex. 6 to Smith  Decl.)  The Court considers defense counsel’s rate of $649 reasonable in the prevailing Los Angeles legal market.   

As to the hours spent on the motion, counsel attests he spent two hours drafting the motion, and he expects to spend an additional three hours reviewing and analyzing the opposition, preparing a reply and attending the hearing.  Defendant also incurred a filing fee of $60 for the motion.  There was no reply filed so the Court reduces the hours spent to four hours.  The Court will award $2,656 for the motion to deem RFAs admitted.   

Defendant also requests sanctions based on Plaintiff’s failure to timely respond to the FROGs, SROGs and RFPs.  Code Civ. Proc. § 2030.290 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.” 

Likewise, Code of Civil Procedure § 2031.300 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.” 

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).)   

Here, Plaintiff has unsuccessfully opposed the motions to compel and has also failed to timely respond to the discovery requests.  Accordingly, sanctions are warranted.   

In determining the amount of sanctions, the Court starts with the lodestar and a reasonable hourly rate of $649.  As to the amount of hours expended, counsel represents he spent two hours for each motion to compel.  Further, counsel attests he expects to spend an additional three hours for each motion, to review the opposition, to prepare the reply, to attend the hearing and to analyze the Court’s ruling.  But Defense counsel is attending a single hearing for all four motions, and accordingly, the Court reduces the hours Defendant seeks by three hours.  In addition, there was no reply filed, so the Court reduces the hours spent by an additional three hours.  In sum, the Court will award nine hours as to the motions to compel SROGs, FROGs and RFPs for a total of $5,841 plus $180 in filing fees for the three motions, or $6,021.     

CONCLUSION 

Based on the foregoing, the Court DENIES IN PART and GRANTS IN PART Defendant’s motions to compel, motion to deem RFAs admitted and requests for sanctions.  The Court awards sanctions in the amount of $8,677 against Plaintiff.   

 

IT IS SO ORDERED. 

 

DATED: January 7, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court