Judge: Kerry Bensinger, Case: 20STCV49589, Date: 2023-08-28 Tentative Ruling

Case Number: 20STCV49589    Hearing Date: August 28, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 28, 2023                     TRIAL DATE:  March 5, 2024

         CASE:                         Fatemeh Azima v. Rolling Hills Plaza, LLC, et al.

         CASE NO.:                 20STCV49589

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY

MOVING PARTY:               Plaintiff Fatemeh Azima

RESPONDING PARTY:     Defendants Rolling Hills Plaza, LLC and American Multi-Cinema, Inc.

I.          BACKGROUND

On December 29, 2020, Plaintiff, Fatemeh Azima, filed this action against Defendants, Rolling Hills Plaza, LLC (“RHP”) and American Multi-Cinema, Inc. (“AMC”), for (1) general negligence and (2) premises liability arising from injuries Plaintiff allegedly sustained when a piece of tiled ceiling on Defendants’ premises broke and hit Plaintiff on the head and shoulders.

On February 18, 2022, Plaintiff served Defendants with Set One of Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admission.  After receiving two extensions to respond, Defendants served responses on July 8, 2022. 

On September 12, 2022, Plaintiff filed these motions to compel Defendants’ further responses to the propounded discovery.  The parties participated in an Informal Discovery Conference (IDC) and filed a Notice of Outcome and an IDC Joint Report on March 15, 2023, detailing the remaining discovery issues in dispute, Plaintiff’s agreement to sign Defendants’ proposed protective order, and Defendants’ agreement to provide verified further responses by March 29, 2023.  On March 21, 2023, the Court granted the parties’ stipulation for a protective order.  Thereafter, the motions were twice continued at Plaintiff’s request.  The parties continued to meet and confer.

On August 9, 2023, Plaintiff filed a supplemental brief detailing the remaining discovery issues.  Plaintiff seeks further responses to Special Interrogatory Nos. 13 and 44, and Request for Production No. 24.  Plaintiff requests sanctions again Defendants and their counsel. 

Defendants have not filed a supplemental opposition.

II.        LEGAL STANDARD TO COMPEL FURTHER DISCOVERY RESPONSES 

            Under Code of Civil Procedure sections 2030.300 and 2031.310, parties may move for a further response to interrogatories and requests for production of documents where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.  A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”  (Code Civ. Proc., § 2031.310, subd. (b)(1).)

            Notice of the motions 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., §§ 2030.300, subd. (c); 2031.310, subd. (c).)  The motions must also be accompanied by a meet and confer declaration.  (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).)

            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.)

            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.  

            With regard to a motion to compel further responses to requests for production, Code of Civil Procedure Section 2031.310, subdivision (h) provides that sanctions shall be awarded against any party, person or attorney who unsuccessfully makes or opposes a motion to compel further responses, unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.

            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

            The Court has reviewed Plaintiff’s separate statement and rules as follows.

A.    Special Interrogatories – RHP and AMC

            Plaintiff seeks Defendants’ further response to Special Interrogatories (“SROG”) Nos. 13 and 44.  Because Defendants have provided the same responses, the Court addresses both motions together.

            SROG No. 13: “DESCRIBE IN DETAIL any and all repairs done to the ceiling where the INCIDENT occurred, after the INCIDENT.”

Defendants responded as follows: “Objection. Relevance. The information requested is not calculated to lead to the discovery of admissible evidence. Pursuant to Evidence Code Section 1151, when, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.”  Defendants provided a supplemental response.  However, Plaintiff argues that Defendants cited a different interrogatory item in their supplemental response (SROG No. 14).  As such, No. 13 remains unanswered.  Defendants have not filed a supplemental opposition arguing to the contrary.

Accordingly, the motions are GRANTED as to SROG No. 13.

SROG No. 44: “Please DESCRIBE IN DETAIL how did YOUR on-duty employees became aware of the INCIDENT.”

Defendants responded as follows:  “Objection. This interrogatory calls for legal conclusion, calls for speculation, lacks foundation, and seeks a premature expert opinion. Further, this interrogatory improperly attempts to shift the burden of proof onto this responding party. Responding Party objects to the term “your” as defined, as it includes in its definition Responding Party’s attorneys. The inclusion of Responding Party’s attorneys in this definition causes to the Request to improperly seek disclosure of information protected by the attorney-product privilege and/or work product doctrine.”  Defendants provided a supplemental response.  However, as with the foregoing discovery request, Plaintiff argues that Defendants cited a different interrogatory item in their supplemental response (SROG No. 28).  As such, No. 44 remains unanswered.  Defendants have not filed a supplemental opposition arguing to the contrary.

Accordingly, the motions are GRANTED as to SROG No. 44.

B.     Request for Production – RHP

            Plaintiff seeks Defendants’ further response to Request for Production of Documents (“RPD”) No. 24.

RPD No. 24: “All incident reports filled in Rolling Hills Plaza in Torrance, California in the five years prior to 01/15/2019 for any PERSON that resulted injured.”

Defendants provided a supplemental response to this discovery request.  Defendants objected and provided the following substantive response:  “Incident Reports are prepared in anticipation of litigation and are protected from disclosure by the attorney-client privilege and the work-product doctrine, Responding Party has agreed to provide a list of injuries sustained at the subject location.”

Plaintiff argues a further response is required because Defendants submitted a document containing nothing more than a list of incidents devoid of any details regarding the incidents themselves.  Plaintiff further argues the parties have reached an agreement wherein the Defendants are authorized to redact identities of individuals who sustained injuries at the site of the alleged injury, which overcomes Defendants’ objection based on confidentiality and privacy of third parties.

The Court finds the response is incomplete.  To the extent the information raises confidentiality and privacy concerns, the Court agrees that Defendants’ authority to redact sufficiently addresses such concerns. 

Accordingly, the motion is GRANTED as to RPD No. 24.

C.     Monetary Sanctions

            Plaintiff requests sanctions against Defendants and their counsel of record.  Given the Court has granted these motions, 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.)   Defense Counsel does not meet their burden.  Accordingly, the Court imposes monetary sanctions against Defendants and their counsel in the amount of $860, which represents 2 hours at plaintiff’s counsel’s hourly rate and $60 in filing fees. 

IV.       CONCLUSION

Plaintiff’s Motions to Compel Further Responses to Special Interrogatories, Set One, Nos. 13, and 44, from Defendants Rolling Hills Park, LLC and American Multi-Cinema, Inc. are GRANTED.  Defendants Rolling Hills Park, LLC and American-Multi-Cinema, Inc. are ordered to provide verified further responses to Special Interrogatories Nos. 13 and 44.

Plaintiff’s Motions to Compel Further Responses to Request For Production of Documents, Set One, No. 24, is GRANTED.  Defendants are ordered to provide verified further responses to Request for Production, No. 24.

Plaintiff’s request for sanctions is GRANTED. 

Defendants and their counsel are ordered to pay, jointly and severally, monetary sanctions to Plaintiff Fatemeh Azima, by and through Plaintiff’s counsel, in the amount of $860. 

Sanctions are to be paid and further responses are to be provided within 20 days.

Moving party to give notice. 

Dated:   August 28, 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.