Judge Kerry Bensinger, Case Number: 20STCV49058, Date: 2023-08-15 Tentative Ruling

Judge: Kerry Bensinger, Case: 20STCV49058, Date: 2023-08-15 Tentative Ruling

Case Number: 20STCV49058 Hearing Date: October 17, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: October 17, 2023 TRIAL DATE: March 22, 2024

CASE: Bertha Lidai Rapalo Rivera v. Oscar Misael Viera, et al.

CASE NO.: 20STCV49058

MOTION TO COMPEL RESPONSES TO DISCOVERY

MOVING PARTY: Defendants Oscar Misael Vira dba OMD Trucking and Victor Hugo Cardona

RESPONDING PARTY: No opposition

I. INTRODUCTION

On July 28, 2023, Defendants, Oscar Misael Vira dba OMD Trucking and Victor Hugo Cardona, filed this motion to compel Plaintiff, Bertha Lidia Rapalo Rivera, to provide responses to Request for Production of Documents, Set One. Defendant seeks sanctions against Plaintiff and her counsel of record.

The motion is unopposed.

II. LEGAL STANDARD TO COMPEL DISCOVERY RESPONSES

If a party to whom demands for inspection, copying, testing, or sampling is directed fails to serve a timely response, the propounding party may move for an order to compelling response to the demand.¿ (Code Civ. Proc., § 2031.300, subd. (b).)¿ Failure to timely serve responses waives objections to the requests.¿ (Code Civ. Proc., § 2031.300, subd. (a).)

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 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., § 2031.300, subd. (c).)

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

Defendants propounded Request for Production of Documents, Set One, on Plaintiff on June 2, 2023. However, to date, Plaintiff has failed to serve responses.¿ (See Capell Decl.)¿ Therefore, all objections to the production demands are waived.¿¿

As Defendants properly served the discovery requests and Plaintiff failed to serve responses, the Court finds Defendants are entitled to an order directing Plaintiff to provide responses to Request for Production of Documents, Set One.¿

Monetary Sanctions

Defendants request sanctions against Plaintiff and her counsel. Given the Court has granted this motion, sanctions are warranted. Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is also proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.) Plaintiff’s counsel does not meet their burden. Accordingly, sanctions are imposed against Plaintiff and his attorney of record in the amount of $290 as stated in the notice of motion.

IV. CONCLUSION

The motion is granted. Plaintiff Bertha Lidia Rapalo Rivera is ordered to provide verified, objection-free responses to Defendant’s Request for Production of Documents, Set One.¿

The request for sanctions is granted. Plaintiff and her attorney of record are ordered to pay, jointly and severally, sanctions in the amount of $290 to Defendants, by and through their counsel.

Discovery responses are to be provided and sanctions are to be paid within 20 days of this order.

Moving party to give notice.

Dated: October 17, 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.