Judge: Kerry Bensinger, Case: 20STCV45774, Date: 2023-08-04 Tentative Ruling

Case Number: 20STCV45774    Hearing Date: August 4, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 4, 2023                                   TRIAL DATE:  April 3, 2024

CASE:                         Gerald Blasi v. Lesky Figueroa Aguiar, et al.

CASE NO.:                 20STCV45774 [Consolidated with 20STCV47619 and 20STCV47372]

MOTION TO COMPEL FURTHER RESPONSES TO

REQUEST FOR PRODUCTION

MOVING PARTY:               Plaintiff Woztbeli Antonio Garcia

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On December 10, 2020, Plaintiff, Woztbeli Antonio Garcia, filed an action (Case No. 20STCV47372) against Defendants, Team Love Transport Corporation and Lesky Figueroa Aguiar (“Aguiar”), for motor vehicle negligence arising out of a collision on December 12, 2018. 

On September 9, 2022, the parties engaged in an Informal Discovery Conference (IDC) with the Honorable Jill Feeney.  The Court ordered Aguiar to serve verified further responses and produce responsive documents to Plaintiff’s discovery request by October 7, 2022.   

On November 7, 2022, the parties engaged in another IDC wherein counsel for Defendants represented to the Honorable William Crowfoot that client communication was delayed due to inclement weather but that the requested documents would be delivered no later than November 14, 2022.  By oral agreement of the parties, the Court set December 14, 2022 as the deadline for filing motions to compel further discovery responses.  

On December 14, 2022, Plaintiff filed this motion to compel Aguiar’s further verified responses to Plaintiff’s Request for Production of Documents.  Plaintiff seeks monetary sanctions against Defendant and his counsel. 

The motion was set to be heard on April 14, 2023.  However, pursuant to joint stipulation, this case was consolidated with 20STCV45774 and 20STCV47619 on April 11, 2023, with Case No. 20STCV45774 as the lead case.  As a result, Plaintiff’s motions were taken off calendar.  Plaintiff re-filed this motion on May 25, 2023.  The Court now considers the merits herein.

The motion is unopposed.[1]

II.        LEGAL STANDARDS TO COMPEL FURTHER RESPONSES TO DISCOVERY

Under Code of Civil Procedure section 2033.290, parties may move for a further response to requests for admission where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.   

Notice of the motion must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.  (Code Civ. Proc., §2033.290, subd. (c).)  The motion must also be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2033.290, subd. (b).)    

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.  (Cal. Rules of Court, rule 3.1345, subd. (a)(3).)   

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, 2031.310.)   

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 inspection demands or requests for admission, 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., §§ 2031.310, subd. (h); 2033.290, subd. (d).)¿¿¿  

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿ 

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party’s misuse of the discovery process, monetary sanctions against the party’s attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney’s actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney’s advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

III.      DISCUSSION

A.    45-Day Requirement

Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.  (Code Civ. Proc., § 2033.290, subd. (c).)  Here, the parties agreed multiple times in writing to extend the time in which Plaintiff may file motions to compel further.  December 14, 2022 was the last deadline.  Plaintiff has complied with this agreement.  Accordingly, the motion is timely.

B.     Analysis

Plaintiff seeks an order compelling Aguiar’s further response to Request for Production, Set One (“RPD”), Nos. 1-43 because Aguiar provided meritless, non-code compliant objections. The Court agrees.  In objecting to RPDs, the responding party must identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item.  (See Code Civ. Proc., § 2031.240, subd. (b)(1).)  Here, Aguiar failed to identify which part of the demand the objection was directed.         

Given that the Court ordered Aguiar to provide verified further responses, and, to date, Aguiar has failed to provide any responses despite representing that such responses would be forthcoming, the Court finds Plaintiff is entitled to an order compelling Aguiar’s verified further responses to the RPDs.

C.     Monetary Sanctions 

Plaintiff requests monetary sanctions against Aguiar and his counsel for preparing and filing this motion.  Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Defense counsel does not meet their burden.  Accordingly, Plaintiff’s request for monetary sanctions is GRANTED.  The Court imposes monetary sanctions against Aguiar and his counsel in the amount of $661.65, which represents 2 hours at plaintiff’s counsel’s hourly rate and $61.65 in filing fees. 

IV.       CONCLUSION

The unopposed motion is granted.   

Defendant, Lesky Figueroa Aguiar, is ordered to provide further verified responses and responsive documents to Plaintiff’s Request for Production of Documents, Set One.

            The unopposed request for monetary sanctions is granted.   

Defendant, Lesky Figueroa Aguiar, and his counsel, are ordered to pay, jointly and severally, monetary sanctions to Plaintiff, by and through Plaintiff’s counsel, in the amount of $661.65.

¿Verified further responses and documents are to be provided and sanctions are to be paid within 10 days of this order.

Moving party to give notice. 

Dated:   August 4, 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.