Judge: H. Jay Ford, III, Case: 21SMCV01182, Date: 2022-12-06 Tentative Ruling

Case Number: 21SMCV01182    Hearing Date: December 6, 2022    Dept: O

Case Name:  NEC-7, LLC, et al. v. Jib Street Homeowner’s Association, et al.

SUBJECT:                 MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO RFPs AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $18,635

MOVING PARTY:   Plaintiff Richard Taraska, MD

RESP. PARTY:         Defendant Jib Street Homeowners Association

TENTATIVE RULING

Plaintiff’s motion for discovery sanctions is GRANTED. The Court awards sanctions in the amount of $13,350.15 (28.9 associate hours @ $395/hr and 3 partner hours @ $645/hr).  The sanctions are imposed as to Defendant Jib Street Homeowners Association and its counsel fo record, Justin Nash and Leonard Siegel. 

            Plaintiff and Defendant resolved the substance of their discovery dispute over Plaintiffs’ 87 RFPs served on Defendant on 12-2-21.  Plaintiff and Defendant participated in an IDC on 8-14-22.  At the IDC, Defendant agreed to produce supplemental responses to the RFPs by 9-12-22.  On 10-3-22, parties informed the Court that the only remaining issue in connection with the RFPs is the Plaintiff’s request for $18,635 in discovery sanctions.

            Plaintiff’s request for sanctions in the amount of $18,635 based on $18,575 in fees plus a $60 filing fee.  Plaintiff’s counsel testifies that he spent a total of 11.1 hours @ $645/hr on the matter.  See Motion, Dec. of J. Stambaugh, ¶20.  Plaintiff’s counsel testifies that an associate of the firm spent a total of 28.9 hours on this matter @ $395/hr.  Id. 

            Prior to filing the motion, Defendant produced documents on 2-11-22 and 3-18-22.  See Motion, Dec. of J. Stambaugh, ¶¶9-19. Defendant had already received 5 extensions to respond.  Id.  Defendant promised further production by 6-21-22, but no further production was ever produced.  Throughout this time, Plaintiff was meeting and conferring with Defendant regarding the deficiency of Defendant’s production.  Id. 

            “[T]he 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 further response to 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.”  Code Civ. Proc., § 2031.310(i). 

Pursuant to CCP §2023.030(a), the “court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct…If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.”

Misuses of discovery include:  “(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. (b) Using a discovery method in a manner that does not comply with its specified procedures. (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (d) Failing to respond or to submit to an authorized method of discovery. (e) Making, without substantial justification, an unmeritorious objection to discovery. (f) Making an evasive response to discovery. (g) Disobeying a court order to provide discovery. (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.”  CCP §2023.010.

            Plaintiff is entitled to sanctions based on Defendant’s unsuccessful attempt to oppose this motion and its failure to provide supplemental responses as promised by 6-21-22.  Defendant ultimately provided further responsive documents, as it had promised prior to Plaintiff’s filing of this motion to compel further responses.  Plaintiff is entitled to reasonable fees incurred as a result of Defendant’s failure to provide supplemental responses by 6-21-22, including having to file this motion.  Until that time, Defendant had been cooperating by serving responses, both initial and supplemental. 

               Of the enumerated forms of discovery abuse in CCP §2023.010, the Court finds Defendant engaged in the “making or opposing, unsuccessfully and without substantial justification, a motion to compel…discovery.  As such, the sanctions award is limited to the meet and confer attempts after the promise to serve supplemental responses by 6-21-22, the motion itself, the opposition review and reply preparation, the IDC, the review of the supplemental opposition and filing of the supplemental reply.