Judge Jill Feeney, Case BC708569 2022-10-20 Tentative Ruling

This is an action for negligence, premises liability, and negligent infliction of emotional distress arising from a trip and fall incident which took place in December 2014. Plaintiffs Sandra Momotiuk and Robert Gustavson filed their Complaint against Defendants Extended Stay America-Los Angeles-Arcadia, ESH Hospitality, Inc., and ESA Management LLC on June 1, 2018.

Plaintiffs seek issue or evidentiary sanctions on the grounds that ESA’s verified discovery responses are invalid because the employee who signed ESA’s verifications in its discovery responses did not have knowledge of the incident at issue.

ESA argues that Plaintiffs’ motion should be disregarded because Defendant was improperly served, Plaintiffs failed to meet and confer, Plaintiffs’ separate statement is defective, and ESA’s verifications were proper.

On reply, Plaintiffs argue that the motion was properly served, Plaintiffs did meet and confer, their separate statement is code compliant, and ESA’s verifications are fraudulent.

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose…sanctions against anyone engaging in conduct that is a misuse of the discovery process.” (Code Civ. Proc. section 2023.030.) “The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.” (Code Civ. Pro. section 2023.030, subd. (b).)

“Discovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)¿ “Although the court has discretion in choosing a sanction, this discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information.” (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193 (citation omitted).) “Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Ibid. (citations omitted).)

A motion for issue or evidentiary sanctions must be accompanied by a separate statement. (Cal. Rules of Court, Rule 3.1345(a)(7).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, Rule 3.1345(c).)¿

Monetary sanctions may be imposed for misuse of discovery process. (Code Civ. Proc., § 2023.030, subd. (a).) Monetary sanctions may also be imposed on one unsuccessfully asserting that another has engaged in the misuse of discovery process. (Id.)

ESA argues the motion was improperly served because Plaintiff left the motion with the security guard to ESA’s counsel’s building. ESA’s counsel’s legal assistant was aware of Plaintiff’s attempt to personally serve the motion while counsel’s office was closed for maintenance. (Crhoelman Reply Decl., ¶¶6-8.) The security guard to ESA’s counsel’s building delivered the counsel’s office. (Id., ¶8.) Because the motion was personally served to ESA’s counsel’s office, counsel’s legal assistant was aware of the delivery, and ESA was on notice of the motion and filed an opposition, the Court will consider Plaintiff’s motion.

ESA also argues that Plaintiff’s separate statement was not code compliant because it failed to provide the required set number, the text of each response, answer, objection, and any further responses or answers to all of the Requests for Admissions. Plaintiff filed an amended separate statement on October 11, 2022.

Plaintiffs allege that ESA’s verification are invalid because the verifications were signed by Jesse Oldman, who was not a manager for the hotel where the subject accident occurred and was not employed at the hotel where the accident occurred. (Motion, p. 8.) During Oldman’s deposition, Oldman could not testify as to who was the manager at the hotel, the hotel’s inspections, and internal reports about the incident. Oldman’s lack of knowledge and answers at deposition were contrary to the written discovery responses that he verified.

In opposition, ESA argues that Oldman’s verifications were proper because the general and district managers at the hotel at issue are no longer employed by ESA. Plaintiff has a motion pending to compel the deposition of Martha Gavarrette and has commenced the deposition of Carlos Yong with a second deposition session set for next week . (Opp., p. 4; Huang Decl., ¶6.) Oldman has served as ESA’s district manager since 2014 and oversaw the hotel at issue from 2018 to 2021. (Huang Decl., ¶7.) At deposition, Oldman could not recall what he reviewed and discussed prior to signing the discovery responses, apart from privileged conversations with counsel. (Id.) ESA was required to have an officer or agent verify its discovery responses under Code Civ. Pro. sections 2030.250(b), 2031.250, and 2033.240.

As a threshold matter, the Court cannot issue evidentiary or issue sanctions unless a party disobeys a court order. Here, the parties’ dispute concerns ESA’s discovery responses. Plaintiffs have not filed a motion to compel discovery responses to address the alleged deficiencies with the verifications of ESA’s discovery responses. ESA has not violated a court order. Thus, Plaintiffs’ motion is denied.

Regarding the verifications, the agent or officer signing verifications on behalf of a corporation or other entity may not have personal knowledge of the subject of discovery. Discovery requests directed to an entity require the entity to disclose information from all sources under its control, not merely what is known to the particular officer or agent designated to verify the entity’s responses. (Gordon v. Sup.Ct. (U.Z. Mfg. Co.) (1984) 161 CA3d 157, 167-168.) An entity responding to discovery requests must nevertheless have an officer or agent execute a verification on its behalf. (Code Civ. Pro. sections 2030.250(b), 2031.250, and 2033.240.) Plaintiff has not cited to any cases addressing this apparent contradiction.

Here, Oldman’s verification states he is “authorized to make this verification for and on behalf” of ESA and that he is “informed and believe” the discovery responses to be true. (Motion, Exhibit 1.) ESA’s discovery responses comply with Code Civ. Pro. sections 2030.250(b), 2031.250, and 2033.240 on their face. ESA responded to Plaintiff’s discovery requests in good faith and appropriately provided the district manager who oversaw the hotel at issue from 2018 forward when the general and district managers who oversaw the hotel at the time of the incident were no longer employed by ESA.