Judge: Elaine Lu, Case: 22STCV02571, Date: 2023-11-22 Tentative Ruling

Case Number: 22STCV02571    Hearing Date: March 18, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

            On January 21, 2022, Plaintiffs Yolanda Sujey Pina Ramirez; Yonathan Efrain Rodriguez Pina, a minor, by and through his guardian ad litem, Yolanda Sujey Pina Ramirez; Jacqueline Rodriguez Pina, a minor, by and through her guardian ad litem, Yolanda Sujey Pina Ramirez; Jose Guadalupe Rodriguez Mederos; Lupita Rodriguez-Pina; Sujey Rodriguez Pina; Saul Alexander Lopez Morales; Ingrid Jeanneth Luna Ramirez; Jerry Estuardo Lopez Luna, a minor, by and through his guardian ad litem, Ingrid Jeanneth Luna Ramirez; and Alexis Yahir Lopez Luna, a minor, by and through his guardian ad litem, Ingrid Jeanneth Luna Ramirez filed the instant breach of habitability action against Defendant Lorena Gamboa.  On May 23, 2023, Plaintiffs filed a Doe Amendment naming Terra 96 d/b/a Terra Management as Doe 1.

            On February 23, 2024, Plaintiffs Yolanda Sujey Pina Ramirez; Yonathan Efrain Rodriguez Pina, a minor, by and through his guardian ad litem, Yolanda Sujey Pina Ramirez; Jacqueline Rodriguez Pina, a minor, by and through her guardian ad litem, Yolanda Sujey Pina Ramirez; Jose Guadalupe Rodriguez Mederos; Lupita Rodriguez-Pina; Liam Valadez, a minor, by and through her guardian ad litem, Lupita Rodriguez-Pina; Sujey Rodriguez Pina; Saul Alexander Lopez Morales; Ingrid Jeanneth Luna Ramirez; Jerry Estuardo Lopez Luna, a minor, by and through his guardian ad litem, Ingrid Jeanneth Luna Ramirez; and Alexis Yahir Lopez Luna, a minor, by and through his guardian ad litem, Ingrid Jeanneth Luna Ramirez (collectively “Plaintiffs”) filed the operative First Amended Complaint (“SAC”) against Defendant Lorena Gamboa (“Gamboa”) and Terra 96 dba Terra Management.

            On January 24, 2024, Plaintiffs filed the instant motion for terminating sanctions against Gamboa, motion to compel Gamboa’s responses to Form Interrogatories, Set Two (“FROGs”), and motion to deem Requests for Admissions, Set One (“RFAs”) propounded on Gamboa admitted.  On January 25, 2024, Plaintiffs filed the instant motion to deem Request to Admit the Genuineness of Documents, Set One (“RFAs Documents”) admitted.  On March 1, 2024, the Court advanced the instant motions to be heard together on March 18, 2024.  (Minute Order 3/1/24.)

            On March 11, 2024, Defendant Gamboa filed declarations in opposition to the motion to deem RFAs admitted and the motion to deem RFAs Documents admitted.  On March 13, 2024, Defendant Gamboa filed an opposition to the motion for terminating sanctions.  Defendant Gamboa has not filed any opposition to the motion to compel her responses to the FROGs.

            On March 13, 2024, Plaintiffs filed a reply to the motion to deem RFAs admitted and motion to deem RFAs Documents admitted.  Plaintiff has not filed any reply for the motion for terminating sanctions or motion to compel responses to the FROGs.

Motions to Compel FROGs, to Deem RFAs Admitted, and to Deem RFAs Documents Admitted

Time to Respond

Under Code of Civil Procedure section 2030.260 subdivision (a), a party must respond to interrogatories within 30 days of service.  Under Code of Civil Procedure section 2033.250 subdivision (a), a party must respond to requests for admission within 30 days of service.  However, these time limits are extended if served by mail, overnight delivery, fax, or electronically.  (See CCP §§ 1010.6(a)(4), 1013.)  Failure to timely respond waives all objections including privilege or on the protection of work product.  (See CCP § 2030.290(a) see also CCP § 2033.280(a).) 

Here, Plaintiffs served the FROGs, RFAs, and RFAs Documents at issue on December 13, 2023.  (Leon FROGs Decl. ¶¶ 2-3, Exhs. A-B; Leon RFAs Decl. ¶¶ 2-3, Exhs. A-B; Leon RFAs Documents Decl. ¶¶ 2-3, Exhs. A-B.)  Accordingly, the last date by which Defendant Gamboa could timely respond to the discovery requests was January 17, 2024.  Defendant Gamboa failed to respond before Plaintiffs filed the instant motions on January 24, 2024 and January 25, 2024.  (Leon FROGs Decl. ¶ 5; Leon RFAs Decl. ¶ 1[1]; Leon RFAs Documents Decl. ¶ 1.)

After Plaintiffs filed the instant motions, Defendant Gamboa filed and served responses to the FROGs at issue and RFAs at issue on March 5, 2024, and the RFAs Documents at issue on March 6, 2023. (Opia-Enwemuche 3/13/14 Decl. ¶ 5, Exhs. 3-5.)

Compel Responses to FROGs

As Defendant Gamboa has served responses without objection to the FROGs, the instant motion to compel Defendant Gamboa’s responses is MOOT except as to sanctions.

Motions to Deem Admitted

Where there has been no timely response to a request for admissions under Code of Civil Procedure section 2033.010, 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, as well as for a monetary sanction.  (CCP § 2033.280(b).)  The party who has failed to respond waives any objections to the demand, unless the court grants that party relief from the waiver, upon a showing (1) that the party 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.  (CCP § 2033.280(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.”  (CCP § 2033.280(c).)

Here, Defendant Gamboa has served substantially compliant responses to the RFAs and RFAs documents.  Thus, the instant motions to deem admitted are MOOT except as to sanctions.

Monetary Sanctions

Plaintiff requests a total of $9,180.00 for the fees and costs incurred in bringing the three motions to compel responses to the FROGs, to deem RFAs admitted, and to deem RFAs Documents admitted.  Plaintiff’s counsel identically claims to have spent three hours on the respective moving papers, one hour on the reply, and one hour attending the hearing for each of the three motions at a claimed hourly rate of $600 an hour plus filing fees of $60 per motion.  (See e.g., Leon FROGs Decl. ¶ 8.) 

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], 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.”  (CCP § 2031.300(c); CCP § 2030.290(c).)  As to the failure to timely respond to the requests for admission, “[i]t is mandatory that the court impose a monetary sanction …on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.  (CCP § 2033.280(c).) 

Here sanctions are mandatory, and there are no circumstances making the imposition of sanctions unjust.  Moreover, the Court finds that Defendant Gamboa’s failure to timely respond to the discovery request is an abuse of discovery.  (CCP § 2023.030(a); Cal. Rules of Court, Rule 3.1348(a).) 

            However, the requested amount of sanctions is vastly overstated and unsupported.  The instant motions are simple.  Each of the three motions is nearly identical except for the discovery request at issue.  Thus, the claimed hours are not reasonable.  Moreover, Plaintiffs did not file a reply for the motion to compel Defendant Gamboa’s responses to FROGs.  The Court is hearing all of the motions together, which economizes the time for Plaintiffs’ attendance at the hearing.  Accordingly, based on the totality of the circumstances, as to the three motions to compel responses to the FROGs, to deem RFAs admitted, and to deem RFAs Documents admitted, the Court finds that sanctions totaling $1,980 are warranted.

            Defendant Lorena Gamboa and her attorney of record Kingsley Opia-Enwemuche, jointly and severally, are liable and ordered to pay to Plaintiffs by and through Plaintiffs’ counsel of record sanctions totaling $1,980.00, within 30 days of notice of this order.

Motion for Terminating Sanctions

Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .”  Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery . . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’”  (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 [quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246].)  “Generally, ‘[a] decision to order terminating sanctions should not be made lightly.  But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’”  (Los Defensores, supra, 223 Cal.App.4th at p. 390 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.”  (Ibid. [citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491 disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn.4, [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

However, “a penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.”  (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 707.) 

Pursuant to Code of Civil Procedure section 2023.030(d):

The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

Discussion – Terminating Sanctions

            Here, Plaintiffs contend that terminating sanctions are warranted due to Defendant Gamboa’s failure to comply with the Court’s January 5, 2024 Order.  The January 5, 2024 Order compelled Defendant Gamboa to produce code compliant responses to Request for Production, Set Two within 15 days of notice of the order and for Defendant Gamboa and her Counsel to jointly pay monetary sanctions of $2,060.00 within 30 days of notice of the order.  As the Court gave notice by electronic service, Defendant Gamboa had until January 23, 2024 to provide the code compliant responses and February 6, 2024 to pay the monetary sanctions.

            Plaintiffs assert that they have not received any verified responses or the monetary sanctions.  (Leon Terminating Sanction Decl. ¶ 4.)  Plaintiffs filed the instant motion for terminating sanctions on January 24, 2024.  Thus the monetary sanctions were not yet due.  Moreover, “terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.”  (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)  As the Court of Appeal noted in Newland, “many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws.”  (Ibid.)  Monetary sanctions “have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction.”  (Ibid.) 

            As to the failure to timely provide code compliant responses to Request for Production, Set Two, Defendant Gamboa’s Counsel states in opposition that the delay in serving the response was due to the funeral of Defense Counsel’s mother.  (Opia-Enwemuche 3/13/24 Decl. ¶ 4, Exh. 1 [Funeral Program Booklet].)  Defendant Gamboa’s Counsel states that he served code compliant responses to the Request for Production, Set Two on March 6, 2024 and has paid the sanctions.  (Opia-Enwemuche 3/13/24 Decl. ¶ 5, Exh. 2.)

            Accordingly, the Court finds that as Defendant Gamboa has fully complied with the January 5, 2024 Order.  The Court further finds that the failure to timely comply was justified due to the death of Defense Counsel’s mother.  Neither terminating sanctions nor further monetary sanctions are warranted. 

Conclusion and ORDER

            Based on the foregoing, Plaintiffs’ motion to compel Defendant Lorena Gamboa’s initial responses to Form Interrogatories, motion to deem Requests for Admissions, Set One propounded on Lorena Gamboa admitted, and motion to deem Request to Admit the Genuineness of Documents, Set One propounded on Lorena Gamboa admitted are DENIED AS MOOT.

            Plaintiffs’ request for sanctions is GRANTED AS MODIFIED.

            Defendant Lorena Gamboa and her attorney of record Kingsley Opia-Enwemuche, jointly and severally, are liable and ordered to pay to Plaintiffs by and through Plaintiffs’ counsel of record sanctions totaling $1,980.00, within 30 days of notice of this order.

            Plaintiffs’ motion for terminating sanctions is DENIED.

            Moving Parties are to give notice and file proof of service of such.

DATED: March ___, 2024                                                     ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court