Judge Joel L. Lofton, Case Number: 23AHCV01225, Date: 2024-05-13 Tentative Ruling

Judge: Joel L. Lofton, Case: 23AHCV01225, Date: 2024-05-13 Tentative Ruling

Case Number: 23AHCV01225 Hearing Date: May 13, 2024 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: May 13, 2024 TRIAL DATE: No date set.

CASE: MARGARET CASTRO, an individual v. LUXE 1801 INVESTMENT LP., a business entity; KAYLA CARBAJAL, an individual; and DOES 1 through 100, inclusive.

CASE NO.: 23AHCV01225

MOTION

MOVING PARTY: Plaintiff Margaret Castro

RESPONDING PARTY: Defendant Luxe 1801 Investment LP

SERVICE: Filed February 2, 2024

OPPOSITION: Filed April 30, 2024

REPLY: None filed as of May 8, 2024

RELIEF REQUESTED

Plaintiff moves for an order compelling Defendant Luxe 1801 Investment LP to respond to Plaintiff’s Form Interrogatory No. 4.1 and for monetary sanctions against Defendant Luxe 1801 Investment LP and its counsel of record, Armand Kizirian of Kizirian Law Firm, P.C., in the amount of $2,060.00.

BACKGROUND

This case arises from Plaintiff Margaret Castro (“Plaintiff”) slipping and falling on alleged defective stairs on December 13, 2022, at a premises located at 1801 W. Garvey Ave., Alhambra, CA 91803 (the “Premises”). On June 1, 2023, Plaintiff filed a Complaint against Defendants Luxe 1801 Investment LP (“Luxe”), Kayla Carbajal (“Carbajal”), and DOES 1 through 100 alleging causes of action for: (1) Negligence; and (2) Premises Liability. Plaintiff alleges that the Premises were owned, managed, and maintained in a negligent manner by Defendants. (Complaint, ¶ 18.)

On August 8, 2023, Defendant Luxe filed an Answer to the Complaint.

On August 14, 2023, Defendant Carbajal was dismissed from this action without prejudice.

On February 2, 2024, Plaintiff filed and served the instant Motion to Compel Defendant Luxe’s Further Responses to Plaintiff’s Form Interrogatory No. 4.1 and Request for Sanctions. Plaintiff seeks an order compelling Defendant Luxe to provide a further response to Plaintiff’s Form Interrogatory No. 4.1, and for monetary sanctions in the amount of $2,060.00 against Defendant Luxe and its counsel of record.

On March 14, 2024, Plaintiff filed an Amendment to Complaint, which identified Defendant Palos Verdes Management Co. LP (“PVM”) as Doe 1.

On April 18, 2024, Defendant PVM filed an Answer to the Complaint.

On April 30, 2024, Defendant Luxe filed and served an opposition brief. As of May 8, 2024, no reply brief has been filed. Any reply brief was required to have been filed and served at least five court days prior to the hearing under CCP § 1005(b).

TENTATIVE RULING

Plaintiff’s motion to compel further responses is GRANTED as to form interrogatory number 4.1.

Plaintiff’s request for monetary sanctions is GRANTED IN PART.

LEGAL STANDARD

In California, discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) “Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.)

A party may move for an order compelling a further response to interrogatories where: (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under CCP § 2030.320 is unwarranted or the required specification of those documents is inadequate; or (3) an objection is without merit or is too general. (Code Civ. Proc., § 2030.300, subds. (a)(1)-(3).)

A motion to compel further responses to interrogatories must be “given within 45 days of service of the verified responses, or any supplemental verified response, or on or before any specific later date to which the propounding party and responding party have agreed in writing” otherwise “the propounding party waives any right to compel a further response to the interrogatories.” (Code Civ. Proc., § 2030.300, subd. (c).)

“While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives are unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams, supra, 3 Cal.5th 531, 541.)

Code Civ. Proc. § 2023.010(d) provides that a misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. Code Civ. Proc. § 2023.010(h) states that a misuse of the discovery process includes making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery. A court may impose a monetary sanction against a party engaging in the misuse of the discovery process or any attorney advising such conduct under Code Civ. Proc. § 2023.030(a). A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.)

DISCUSSION

Overview

Plaintiff moves to compel further responses to Form Interrogatory No. 4.1. On August 18, 2023, Plaintiff served her first set of Form Interrogatories, including Form Interrogatory No. 4.1. (Ghermezian Decl., ¶ 2; Exh. A.) Ultimately, on January 19, 2024, Defendant Luxe provided unverified responses to Form Interrogatory No. 4.1. (Ghermezian Decl., ¶ 4; Exh. D.) Counsel for Defendant Luxe, Armand R. Kizirian (“Kizirian”), declares that verifications were provided on January 29, 2024. (Kizirian Decl., ¶ 3.)

Interrogatory No. 4.1: At the time of the INCIDENT, was there in effect any policy of insurance through which you were or might be insured in any manner (for example, primary, pro-rata, or excess liability coverage or medical expense) for the damages, claims, or actions that have arisen out of the INCIDENT? If so, for each policy state:

(a) the kind of coverage;

(b) the name and ADDRESS of the insurance company;

(d) the policy number;

(e) the limits of coverage for each type of coverage contained in the policy;

(f) whether any reservation of rights or controversy or coverage dispute exists between

you and the insurance company; and

(g) the name, ADDRESS, and telephone number of the custodian of the policy.

In response to Form Interrogatory No. 4.1, Defendant Luxe provided the following response:

Defendant incorporates by reference each of the aforementioned general objections. Defendant objects to this interrogatory because it seeks information that is not relevant and not reasonably calculated to lead to discovery of admissible evidence. Defendant further objects that this interrogatory is overly broad and burdensome. Moreover, this interrogatory impinges on Defendant’s right to privacy. Subject to and without waiving these objections, Defendant responds as follows: Defenant has declined to invoke insurance coverage in this matter. Discovery is ongoing. Defendant reserves the right to supplement this response while denying any obligation to do so.

Application

CCP § 2017.210 provides that “[a] party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. This discovery may include the identity of the carrier and the nature and limits of the coverage.” Additionally, “[a] party may also obtain discovery as to whether that insurance carrier is disputing the agreement’s coverage of the claim in the action, but not as to the nature and substance of that dispute. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial.” (Code Civ. Proc. § 2017.210.) However, “an insurer is not the stand-in for the insured. Plaintiffs can often sue the insured, but cannot sue the insurer until there is a judgment or assignment of rights.” (Barajas v. Sativa L.A. County Water Dist. (2023) 91 Cal.App.5th 1213, 1230.)

In opposition to the motion, David L. Delgado (“Delgado”), declares that Defendants Luxe and PVM have declined to activate insurance coverage in this matter and are defending this suit out of pocket and, if Plaintiff is able to secure a judgment in her favor, would pay for that judgment out of pocket. (Delgado Decl., ¶ 3.) Mr. Delgado states that due to the decision of Defendants Luxe and PVM, there effectively is no insurance coverage at issue in this matter. (Delgado Decl., ¶ 4.) Plaintiff’s counsel has said that even if Defendants do not initiate a claim with their carrier, he will write to their carrier to inform them of Plaintiff’s claim to try to get them to step in. (Delgado Decl., ¶ 5.) This would be an improper use of the carrier information. (Delgado Decl., ¶ 5.) All Plaintiff could achieve by contacting Defendants’ carrier is to interfere in the relationship with their carrier. (Delgado Decl., ¶ 6.)

The Court finds that compelling a further response to Form Interrogatory No. 4.1 is appropriate. The fact that Defendants Luxe and PVM have decided to defend this matter out of pocket does not obviate the fact that CCP § 2017.210 provides that Plaintiff “may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.”

Irrespective of Defendants Luxe and PVM not tendering this matter to their insurance carrier, it is undisputed that there is insurance coverage. Defendant Luxe did not respond to Form Interrogatory No. 4.1 as complete and straightforward as the information reasonably available to Defenant Luxe permits. (CCP § 2030.220(a).) The information sought by Form Interrogatory No. 4.1 is relevant.

The Court therefore ORDERS Defendant Luxe to provide verified, complete, and code-compliant responses, without objections, to Plaintiff’s Form Interrogatory No. 4.1 within 20 days of the date of notice of this order.

As to monetary sanctions, Plaintiff’s counsel declares that his hourly rate is $400 per hour and that a $60 filing fee was incurred as to the motion. (Ghermezian Decl., ¶ 7.) Plaintiff’s counsel states that he has spent 2.5 hours preparing the moving papers and anticipates spending no less than 2.5 hours preparing the reply brief and attending the hearing on the motion. (Ghermezian Decl., ¶ 7.)

The Court GRANTS IN PART Plaintiff’s request for monetary sanctions. Exercising its discretion, the Court AWARDS Plaintiff monetary sanctions in the reasonable amount of $460.00 (which represents 1.0 hours of work on the motion plus the $60.00 filing fee). The Court reduces the hours given the relative brevity of the motion and its straightforward nature. Monetary sanctions are to be paid to Plaintiff by Defendant Luxe and its counsel of record, Armand Kizirian of Kizirian Law Firm, P.C., jointly and severally, within 30 days of the date of notice of this order.

CONCLUSION

Plaintiff’s Motion to Compel Defendant Luxe’s further responses to Form Interrogatory No. 4.1 is GRANTED. The Court ORDERS Defendant Luxe to provide verified, complete, and code-compliant responses, without objections, to Plaintiff’s Form Interrogatory No. 4.1 within 20 days of the date of notice of this order.

Plaintiff’s request for monetary sanctions is GRANTED IN PART. The Court ORDERS Defendant Luxe and its counsel of record, Armand Kizirian of Kizirian Law Firm, P.C., jointly and severally, to pay monetary sanctions to Plaintiff in the amount of $460.00 within 30 days of the date of notice of this order.

Moving Party to give notice.

Dated: May 13, 2024 ___________________________________

Joel L. Lofton

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit. alhdeptx@lacourt.org