Judge Holly J. Fujie, Case 21STCV46218 2023-04-17 Tentative Ruling

This action arises out of a former attorney-client relationship. Plaintiff’s complaint (the “Complaint”) alleges: (1) breach of written contract; (2) common count – goods and services rendered; and (3) common count – account stated.

On January 26, 2023, the Court granted three motions to compel discovery responses that Plaintiff filed and ordered Defendant to submit responses to Plaintiff’s Form Interrogatories (“FROGs”), Set 1; Special Interrogatories (“SPROGs”), Set 1; and Requests for Production (“RFPs”), Set 1. The Court also granted Plaintiff’s motion to deem Requests for Admissions, Set 1 (“RFAs”) admitted. On March 1, 2023, Plaintiff filed four motions for terminating, evidence, issue, and/or monetary sanctions based on Defendant’s noncompliance with the Court’s January 26, 2023 order and failure to submit proper SPROG, FROG, RFP, and RFA responses (respectively, the “SPROG Motion,” “FROG Motion,” “RFP Motion,” and “RFA” Motion,” and collectively, the “Motions”).

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.) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

In support of the Motions, Plaintiff provides evidence that after the Court’s January 26, 2023 order Defendant did not provide any FROG, RFP, or RFA responses. (See Declaration of Jeremy J. Osher (“Osher Decl.”) ¶ 6.) Defendant did provide SPROG responses, but Plaintiff contends that these responses contained improper objections and unintelligible responses. (See id.) In his opposition (the “Opposition”), Defendant provides evidence that he planned to provide further SPROG responses and that he has retained an attorney to assist him in this matter moving forward. (See Declaration of Michael Hakim (“Hakim Decl.”) ¶¶ 2, 7.)[1] The Opposition does not address the status of Defendant’s responses (or lack thereof) to the FROGs, RFPs, or RFAs.

The Court declines to issue terminating, issue, or evidence sanctions at this time since this is Defendant’s first violation of a court order, and it appears that Defendant made an effort to retain representation to assist him with responding to discovery. In addition, the Court deemed the RFAs admitted in the January 26, 2023, which impliedly obviates the need for Defendant to provide responses (unless he also files a motion to withdraw the admissions).[2] Without assessing the sufficiency of Defendant’s SPROG responses, it is undisputed that Defendant has not provided RFP or FROG responses, in violation of a court order. The Court therefore finds that Plaintiff is entitled to monetary sanctions due to Defendant’s continued misuse of the discovery process. (See Do v. Superior Court (2003) 109 Cal.App.4th 1210, 1218.)

Plaintiff requests monetary sanctions in the amounts of: (1) $5,603 in connection to the RFA; (2) $4,932 in connection to the SPROG Motion; (3) $4,003.50 in connection to the FROG Motion; and (4) $5,536 in connection to the FROG Motion. These amounts include the attorney fees incurred on the motions underlying the January 26, 2023 order and represent work performed at an hourly rate of $645 per hour. (See Osher Decl. ¶¶ 12-13.)

The Court exercises its discretion and awards Plaintiff sanctions in the reasonable amount of $3,225, which represents a total of five hours drafting, responding to the oppositions to and arguing the Motions at a rate of $645 per hour. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.) The Court therefore GRANTS the Motion in part and orders that Defendant provide code-compliant responses consistent with the January 26, 2023 order and pay $3,225 in monetary sanctions within 20 days of the date of this order.

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.

[1] On April 5, 2023, Plaintiff filed a Substitution of Attorney form with his counsel’s information. In its reply (the “Reply”), Plaintiff contends that the further SPROG responses remain inadequate. (See Supp. Osher Decl., Exhibit 2.)

[2] Although the January 26, 2023 order does not expressly state that Defendant’s RFA responses are admitted, it indicates that Plaintiff’s motion to deem the RFAs admitted was granted.