Judge: Kerry Bensinger, Case: 19STCV45683, Date: 2023-09-05 Tentative Ruling

Case Number: 19STCV45683    Hearing Date: September 5, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     September 5, 2023                             TRIAL DATE:  October 4, 2023

CASE:                         Audelino Abundis v. 5757 Wilshire LLC

CASE NO.:                 19STCV45683

MOTION TO DISMISS

MOVING PARTY:               Defendant 5757 Wilshire LLC

RESPONDING PARTY:     No opposition

I.          INTRODUCTION

            On December 18, 2019, Plaintiff, Audelino Abundis, initiated this action against Defendant, 5757 Wilshire LLC, for injuries arising from a slip and fall on the stairway of Defendant’s parking structure.

On September 30, 2022, the Court granted Defendant’s Motions to Compel Plaintiff’s Responses to Form Interrogatories (Set One), Special Interrogatories (Set One) and Demand for Identification and Production of Documents (Set One).  Plaintiff did not file written opposition to the motions.  Pursuant to the Court’s order, Plaintiff was ordered to provide verified responses to the discovery by within 45 days of the date of the Court’s order. 

On December 12, 2022, Defendant served Plaintiff with notice of the Court’s September 30, 2022 ruling.  However, at the time of the filing of this motion, Plaintiff had not served responses.  Defendant now seeks an order dismissing Plaintiff’s Complaint.  Defendant also seeks monetary sanctions against Plaintiff only.

On August 25, 2023, Plaintiff filed an untimely opposition, indicating the at-issue discovery responses had been served on Defendant with verifications.  As such, the issue is now moot.  Plaintiff also requests sanctions not be imposed.

            The motion was heard on August 30, 2023.  The Court issued a tentative ruling indicating an intention to consider Plaintiff’s untimely opposition and continued the matter to allow Defendant an opportunity to file a reply. 

            On September 1, 2023, Defendant filed a reply.  In reply, Defendant confirms receipt of the at-issue discovery.  Defendant proceeds with the motion as to the issue of sanctions. 

            The Court rules as follows.

II.        LEGAL STANDARD FOR MONETARY SANCTIONS

            Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿ 

            If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿ 

            If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary 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.”  (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).) ¿In the context of a motion to deem requests for admission admitted, it is mandatory that the court impose monetary sanctions on the party or attorney, or both, whose failure to serve a timely response to the request necessitated the motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).) 

III.       DISCUSSION

            It is undisputed Plaintiff failed to timely serve discovery responses despite a court order so directing.  Plaintiff’s counsel requests sanctions not be imposed because she was coping with the death of her sister.  (See Manning Decl.)  Plaintiff’s sister passed away around the time the Court granted Defendant’s motion to compel discovery responses.   However, Plaintiff’s counsel does not adequately explain the delay in serving discovery responses given that Defendant propounded the discovery in November 2021.   Under these facts, the Court finds sanctions against Plaintiff are warranted. 

            Accordingly, sanctions are imposed against Plaintiff in the sum of $960, representing 4 hours at defense counsel’s hourly rate and $60 in filing fees.

IV.       CONCLUSION

            The motion to dismiss is moot.

            The request for sanctions is granted.  Plaintiff is ordered to pay sanctions of $960 to Defendant, by and through defense counsel, within 45 days of this order. 

            Moving party to give notice. 

Dated:   September 5, 2023                                      ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.