Judge: Elaine Lu, Case: 22STCV06126, Date: 2024-01-08 Tentative Ruling

Case Number: 22STCV06126    Hearing Date: January 8, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On February 17, 2022, Plaintiffs R. Bruce Keiner, Suellen T. Keiner, William G. Keiner, Alexis M. Keiner (collectively “Plaintiffs”) filed the instant quiet title action against Defendants Trevor Damyan (“Defendant”) and Done Right Home Remodeling, Inc. 

            On December 9, 2022, Plaintiffs filed the operative Second Amended Complaint (“SAC”) against Defendant.  The SAC asserts five causes of action for (1) Quiet Title, (2) Damages for Trespass and Injunctive Relief, (3) Nuisance, (4) Negligence, and (5) Prescriptive Easement. 

            On July 11, 2023, Plaintiffs filed the instant motion for issue and evidentiary sanctions.  On January 4, 2023, Plaintiffs filed a notice of no opposition to the instant motion.  No opposition has been filed. 

Legal Standard

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 . . . .”

“Nevertheless, absent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.”  (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.)  “Even where nonmonetary sanctions are called for, they ‘ “...’should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ [Citations.] ‘ “... [¶] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.’ ” ’ [Citations.]”  (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

“A trial court has broad discretion when imposing a discovery sanction.”  (Lee, supra, 175 Cal.App.4th at p.1559.)  “In exercising this discretion [for nonmonetary sanctions], a variety of factors may be relevant, including, 1) the time which has elapsed since [the discovery requests] were served, 2) whether the party served was previously given a voluntary extension of time, 3) the number of [the discovery requests] propounded, 4) whether the unanswered questions sought information which was difficult to obtain, 5) whether the answers supplied were evasive and incomplete, 6) the number of questions which remained unanswered, 7) whether the questions which remain unanswered are material to a particular claim or defense, 8) whether the answering party has acted in good faith, and with reasonable diligence, 9) the existence of prior orders compelling discovery and the answering party's response thereto, 10) whether the party was unable to comply with the previous order of the court, 11) whether an order allowing more time to answer would enable the answering party to supply the necessary information, and, 12) whether a sanction short of dismissal or default would be appropriate to the dereliction.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796–797.)

Discussion

            On April 17, 2023, the Court granted Plaintiffs’ motion to compel further responses to Plaintiffs’ Form Interrogatories, Set One, Request for Production, Set One, and Request for Admission, Set One and ordered Defendant to serve  verified, further code compliant responses without objection within 30 days.  (Minute Order 4/17/23; Hepworth Decl. ¶ 2, Exh. A.)  Plaintiffs assert that Defendant failed to comply with the Court’s order and that the Court should impose issue, evidentiary, and further monetary sanctions.

            As to all three further responses to Plaintiffs’ Form Interrogatories, Set One (“FROGs”), Request for Production, Set One (“RPDs”), and Request for Admission, Set One (“RFAs”), Defendant did not serve the response until May 22, 2023 – i.e., five days after the further responses were due.  In addition, Defendants’ supplemental responses to the FROGs, RPDs, and RFAs were unverified.  (Hepworth Decl. ¶ 3.)  “Unsworn responses are tantamount to no responses at all.”  (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

            As to the supplemental responses to the RFAs, Defendant improperly included general objections on the grounds that the requests were not compliant with Code of Civil Procedure section 2033.060(d) and that the requests were vague and ambiguous.  (Hepworth Decl. ¶ 4, Exh. B.)  These objections are ineffective as objections must be specifically stated in response to each request.  (CCP § 2033.210.)  More importantly, Defendant was ordered to provide further responses without objection, (Minute Order 4/17/23). 

            As to the supplemental responses to RFAs Nos. 25 and 26, Defendant states that he is “Unable to admit or deny. Responding party has no personal knowledge and cannot speculate.”  (Hepworth Decl. ¶ 4, Exh. B.)  However, this response is not code compliant.  Claiming a lack of personal knowledge is not a valid response.  “ ‘Since requests for admissions are not limited to matters within personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge.’ [Citation.]”  (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 751–752.)  Here, the supplemental responses to RFAs Nos. 25 and 26 fail to specify whether Defendant made any reasonable investigation in responding to the request.  Defendant merely claims a lack of personal knowledge.  (CCP § 2033.220(c).)  Thus, in addition to the lack of proper verification, Defendant’s responses to RFAs Nos. 25 and 26 are separately improper.

            Plaintiffs further contend that the response to RFA No. 18 is improper because Defendant erroneously repeated the text of RFA No. 17 as the text of RFA No. 18.  However, there is no requirement to repeat the text of the request.  (CCP § 2033.210(e), [“Each answer or objection in the response shall bear the same identifying number or letter and be in the same sequence as the corresponding request. The text of that request need not be repeated…”].)  Thus, the response to RFA No. 18 is not separately improper beyond the lack of verification.
            As to the supplemental responses to the FROGs, Plaintiffs assert that the supplemental response to FROG no. 17.1 is improper because Defendant grouped together multiple RFAs to his responses.  FROG No. 17.1 requires for each response to an RFA that is not an unqualified admission that additional information be provided.  Here, Defendant’s supplemental response has grouped multiple RFAs together instead of separately listing and repeating information when necessary.  (Hepworth Decl. ¶ 4, Exh. C.)  Compared to the other defect of lack of verification, this is a minor issue that would not warrant non-monetary sanctions.  Plaintiffs can readily determine the relevant responses.  However, the supplemental response is technically non-compliant because the RFAs that are not unqualified admissions should be separately listed and individually answered even if the responses are identical.

            Based on the five-day delay, lack of verification, and defects noted above, Plaintiffs seek – in addition to monetary sanctions – issue and evidentiary sanctions (1) prohibiting Defendant from introducing evidence regarding damages as to his cross-complaint, (2) prohibiting Defendant from calling any witnesses other than Eyad Khalil of Urban Professional Builders, (3) prohibit Defendant from relying upon any documents, photographs or videos other than the ones he has already produced and from every claiming any privilege at any point, and (4) deeming Requests for Admission Nos. 15-20, 25 and 26 admitted.

            “[T]wo facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.”  (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.)  Here, Defendant failed to comply with the Court’s April 17, 2023 Order.  Moreover, Defendant failed to file an opposition despite the months of time to do so.  Defendant also failed to remedy the defects identified in the instant motion.  Accordingly, the Court concludes that Defendant does not have a meritorious argument in opposition and that the failure to comply was willful.  (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797.)   Thus, nonmonetary sanctions are warranted.

However, “[e]ven where nonmonetary sanctions are called for, they ‘ “...’should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ [Citations.] ‘ “... [¶] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.’ ” ’ [Citations.]”  (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

Here, the requested nonmonetary sanctions are extreme and go well beyond accomplishing the objects of discovery and plainly seek to punish.  For example, as to the RPDs, the only issue identified is the five-day delay and lack of verification.  Yet Plaintiffs seek to exclude the admission of not only those documents that are responsive to Plaintiffs’ requests for production.  Instead, Plaintiffs seek an order excluding all documents – even those documents that Plaintiffs did not request in their requests for production.  Plaintiffs have clearly received substantive responses to the RFAs, RPDs, and FROGs.  Thus, the requested issue and evidentiary sanctions are not necessary to obtain the objects of the discovery they seek.  Accordingly, Plaintiff’s request for nonmonetary sanctions is DENIED.

Monetary Sanctions

            In light of Defendant’s willful failure to fully and properly comply with the Court’s April 17, 2023 Order, monetary sanctions are clearly warranted.

            “If a party then fails to obey an order compelling further response [to interrogatories, request for production, or requests for admission], the court may … impose a monetary sanction under [CCP § 2023.030.]”  (CCP §§ 2030.300(e), 2031.310(i), 2033.290(e).)  Under Code of Civil Procedure section 2023.030(a), the court may impose sanction covering the costs of “reasonable expenses, including attorney’s fees”.  (CCP § 2023.030(a).) 

            Here, Plaintiff’s Counsel states that he spent five hours preparing the instant motion and anticipates spending another two hours in connection with this motion at an hourly rate of $350.  (Hepworth Decl. ¶ 5.)  Based on the totality of the circumstances, the Court finds that $2,450.00 reasonably compensates Plaintiffs for attorney’s fees and costs incurred in bringing this motion.

            Defendant Trevor Damyan is ordered to pay monetary sanctions in the amount of $2,450.00 to Plaintiffs R. Bruce Keiner, Suellen T. Keiner, William G. Keiner, Alexis M. Keiner by and through counsel, within thirty (30) days of notice of this order. 

Conclusion and ORDER

Based on the foregoing, Plaintiffs R. Bruce Keiner, Suellen T. Keiner, William G. Keiner, Alexis M. Keiner’s motion for issue and evidentiary sanctions is GRANTED IN PART.

Defendant Trevor Damyan is ordered to pay monetary sanctions in the amount of $2,450.00 to Plaintiffs R. Bruce Keiner, Suellen T. Keiner, William G. Keiner, Alexis M. Keiner by and through counsel, within thirty (30) days of notice of this order. 

Defendant Trevor Damyan is ordered to serve verified (as set forth under Code of Civil Procedure section 2015.5) code compliant responses without objection to Plaintiffs’ Request for Admission, Set One Nos. 15-20, 25-26, Plaintiffs’ Form Interrogatories, Set One No. 9.1, 9.2, 12.1, 17.1 and Plaintiffs’ Request for Production, Set One Nos. 1-34 within five (5) days of notice of this order.

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

DATED:  January 8, 2024                                                      ___________________________

Elaine Lu

                                                                                          Judge of the Superior Court