Judge: Holly J. Fujie, Case: 20STC19545, Date: 2023-02-23 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 20STC19545    Hearing Date: February 23, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND CONSOLIDATED ACTION

MOVING PARTY: Plaintiffs Emma Martin, Elisabeth Gagliano, and Kathryn Sessinghaus (collectively, “Plaintiffs”)

RESPONDING PARTY: Defendants Serrano Post Acute LLC (“Defendant”)

            The Court has considered the moving, opposition and reply papers. 

BACKGROUND

The currently operative fourth amended complaint (the “4AC”), filed on March 21, 2022, alleges: (1) violations of the Elder and Dependent Adult Civil Protection Act; (2) negligence; (3) wrongful death; (4) fraudulent concealment; and (5) fraudulent misrepresentation.

On January 17, 2023, Plaintiffs filed a motion to compel compliance with a court order and for sanctions (the “Motion”).  The Motions seek an order compelling Defendant’s compliance with the Court’s December 1, 2022 order that was issued after an Informal Discovery Conference (“IDC”) in addition to evidentiary, issue, and monetary sanctions.

DISCUSSION

Under California Code of Civil Procedure (“CCP”) section 2023.030, where a party engages in misuse of discovery process, the court may impose monetary, issue, evidence, terminating, or contempt sanctions.  (See CCP § 2023.030.)  Misuses of the discovery process include failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery.  (See CCP § 2023.010, subds. (d), (g).) 

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)  Discovery sanctions 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.  (Id.)  Continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.  (Id.)  Where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction.  (Id.)  A trial court has broad discretion to impose discovery sanctions, but absent unusual circumstances, the court must generally find: (1) a failure to comply with a court order; and (2) the failure was willful.  (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) 

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  If a lesser sanction fails to curb abuse, a greater sanction is warranted.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  However, the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.  (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) 

Following a December 1, 2022 IDC, the Court issued an order requiring Defendant to serve supplemental, Code-compliant, and verified responses to Plaintiffs’ Requests for Production (“RFPs), Sets 2-6 covering the period from 2019-2020 and an updated privilege log.  On January 6, 2023, Defendant produced documents responsive to RFP, Set 2 and a compliance log, but did not produce further responses or a privilege log.  (Declaration of Hannah Brown (“Brown Decl.”) ¶ 12, Exhibit K.)  Defendant’s counsel acknowledged that the January 6, 2023 responses were incomplete and warranted that Defendant would submit further responses on a rolling basis through January 13, 2023.  (Brown Decl., Exhibit J.)  Plaintiffs’ counsel informed Defendant that if it did not comply with the Court’s order by January 13, 2023, Plaintiffs would move for sanctions.  (Brown Decl. ¶ 13, Exhibit L.)  Plaintiffs did not receive a response to this communication or further responses before they filed the Motion on January 17, 2023.  (Brown Decl. ¶ 13.) 

Defendant produced additional responses after the Motion was filed.  (See Declaration of Zachary Remijas (“Remijas Decl.”) ¶ 8; Supp. Brown Decl. ¶¶ 4-8.)  Defendant’s further responses are not verified and do not include a privilege log.  (See Supp. Brown Decl. ¶¶ 3-8.)

The Court declines to issue terminating or issue sanctions at this time.  Although Defendant has continued to submit supplemental responses, its supplemental responses remain incomplete and are not in compliance with the Court’s December 1, 2022 order.  The Court therefore GRANTS the Motion in part and orders that Defendant produce supplemental responses that are in accordance with the Court’s December 1, 2022 order within 20 days of this order.

Monetary Sanctions

            Plaintiffs seek attorney’s fees in connection to the Motion in the amount of $21,600.  (Brown Decl. ¶ 14.)  This amount represents: (1) 25 hours on meet and confer efforts related to the discovery requests at issue; (2) three hours preparing for and attending the December 1, 2022 IDC; and (8) hours preparing the Motion and accompanying papers at a rate of $600 per hour.  (Id.) 

The Court exercises its discretion and GRANTS Plaintiffs’ requests for monetary sanctions in the reasonable amount of $3,000, which represents a total of five hours of work spent on the Motion at a rate of $600 per hour.  (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.)  Defendant is ordered to pay this amount within 20 days of this order.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

    Dated this 23rd day of February 2023