Judge: Gary Y. Tanaka, Case: YC072796, Date: 2023-02-07 Tentative Ruling
Case Number: YC072796 Hearing Date: February 7, 2023 Dept: B
LOS ANGELES SUPERIOR
COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday,
February 7, 2023
Department B
Calendar No. 2
PROCEEDINGS
Sabine De Weijer v. Brookside Village
Homeowners Association, Inc., et al.
YC072796
1. Sabine
De Weijer’s Motion to Compel Compliance with Request for Production of
Documents, Set Three, and Request for Sanctions
2. Sabine
De Weijer’s Motion to Compel Further Responses to Requests for Production of
Documents, Set Three, and Request for Sanctions
TENTATIVE RULING
Sabine
De Weijer’s Motion to Compel Compliance with Request for Production of
Documents, Set Three, and Request for Sanctions is moot, in part, and granted,
in part.
Sabine
De Weijer’s Motion to Compel Further Responses to Requests for Production of
Documents, Set Three, is moot, in part, and granted, in part.
Background
Plaintiff
filed her Complaint on April 3, 2018. Plaintiff is the owner of real property
located at 605 South Prospect Avenue, Unit 307, Redondo Beach, CA 90277. Her
unit is part of a condominium development managed and maintained by Defendant
Brookside Village Homeowners Association, Inc. (“HOA”), in accordance with a
Declaration of Establishment of Conditions, Covenants and Restrictions
(“CC&Rs”). Plaintiff alleges that
Defendant improperly maintained the common areas, as well as areas to which it
had a duty to maintain including the attic space and cavity spaces above and
adjacent to Plaintiff’s unit, which caused stains and defects to Plaintiff’s
unit. Plaintiff alleged causes of action for: 1. Breach of CC&Rs; 2.
Enforcement of Equitable Servitudes; 3. Nuisance; 4. Negligence; 5. Declaratory
Relief.
Motions
to Compel
Code Civ. Proc., § 2031.320 states, in relevant
part:
“(a) If a party filing a response to a demand for
inspection, copying, testing, or sampling under Sections 2031.210, 2031.220,
2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection,
copying, testing, or sampling in accordance with that party's statement of
compliance, the demanding party may move for an order compelling compliance.
(b) 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 compliance with a demand, 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.
(c) Except as provided in subdivision (d), if a
party then fails to obey an order compelling inspection, copying, testing, or
sampling, 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 that sanction, the court may impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010).
(d)(1) Notwithstanding subdivisions (b) and (c),
absent exceptional circumstances, the court shall not impose sanctions on a
party or any attorney of a party for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as the result
of the routine, good faith operation of an electronic information system.”
A party responding to an
inspection demand shall respond to each demand with one of the following: a statement the party will comply with the
demand, a representation the party lacks the ability to comply with the demand,
or an objection. (Code Civ. Proc., §
2031.210, subd. (a).) A response to an
inspection demand may be inadequate because it is evasive or incomplete;
contains an incomplete statement of compliance; an inadequate, incomplete, or
evasive representation of inability to comply; or meritless or overly general
objections to a demand. (Code Civ.
Proc., § 2031.310, subd. (a).)
If a demanding party
believes the responding party responded inadequately, the demanding party may
move for an order compelling further response.
(Code Civ. Proc., § 2031.310, subd. (a).) “Unless notice of this motion is given within
45 days of the service of the verified response, or any supplemental verified
response, or on or before any specific later date to which the demanding party
and the responding party have agreed in writing, the demanding party waives any
right to compel a further response to the demand.” (Code Civ. Proc., § 2031.310, subd. (c).)
Meet and Confer
Defendants set forth a meet and confer declaration
in substantial compliance with CCP §§ 2031.310(b)(2) and 2016.040. (Declarations, Elaine T. Ding.)
Motions
to Compel
Defendant
served further responses on January 3, 2023, and produced additional documents
on January 25, 2023. Therefore,
Plaintiff’s Motions are deemed moot. The
propriety of the further responses and any objections asserted in the further
responses are not the subject of these motions. In addition, the motion to compel compliance
is moot as any statement of compliance would now be triggered by the further
responses on January 3, 2023. Plaintiff
argues that Defendant continues to fail to fully comply with its statement of
compliance. However, any purported failure
to fully comply must be directed to the further responses that were served on
January 3, 2023. The Court is mindful of
Plaintiff’s argument that Defendant has and continues to engage in
“gamesmanship” with respect to discovery. However, the Court must follow the statutory
mandates of the Discovery Act, and any purported gamesmanship can be fully
addressed with appropriate sanctions, as necessary.
Sanctions
Plaintiff’s
requests for monetary sanctions are granted. Defendant served further responses only after
the motions were filed. “The court may
award sanctions under the Discovery Act 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.” Cal. Rules of Court, Rule 3, 1348(a). Sanctions are awarded in favor of Plaintiff
and against Defendants and its counsel in the total amount of $2,223.50. The amount was derived by allotting for 6
hours to prepare and appear for the motions at a rate of $350/hour ($2,100.00),
plus 2 filing fees of $61.75 each ($123.50), for a total amount of $2,223.50. Sanctions are payable within 30 days of this
date.
Defendant’s
requests for monetary sanctions are denied.
Plaintiff
is ordered to give notice of this ruling.