Judge Kerry Bensinger, Case Number: 21STCV00605, Date: 2023-08-09 Tentative Ruling

Judge: Kerry Bensinger, Case: 21STCV00605, Date: 2023-08-09 Tentative Ruling

Case Number: 21STCV00605 Hearing Date: August 9, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: August 9, 2023 TRIAL DATE: Not set

CASE: Valerie Childress v. Park West Apartments, et al.

CASE NO.: 21STCV00605

MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES

MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES

MOTION TO COMPEL RESPONSES TO DEMAND FOR PRODUCTION OF DOCUMENTS

MOVING PARTY: Defendant Equity Residential Management, L.L.C.

RESPONDING PARTY: No opposition

I. INTRODUCTION

On January 7, 2021, Plaintiff, Valeria Childress, filed this action against Defendants, Park West Apartments and Equity Residential Management, LLC (“ERM”), for injuries arising from a slip and fall on Defendants’ premises.

On February 2, 2023, ERM filed these motions to compel Plaintiff’s responses to Form Interrogatories, Special Interrogatories, and Demand for Production of Documents. ERM seeks sanctions against Plaintiff and her counsel.

The motions are unopposed.

II. LEGAL STANDARD TO COMPEL DISCOVERY RESPONSES

If a party to whom interrogatories and inspection demands were directed fails to serve a timely response, the propounding party may move for an order to compel responses without objections.¿ (Code Civ. Proc., §§ 2030.290, subd. (b), 2031.300, subd. (b).)¿ Failure to timely serve responses waives objections to the requests.¿ (Code Civ. Proc., §§ 2030.290, subd. (a), 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 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).)¿

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

ERM served the at-issue discovery requests on Plaintiff on July 14, 2022. However, to date, Plaintiff has not responded to ERM’s written discovery requests.¿ (See Ijams Decls.)¿ Therefore, all objections to the interrogatories and demand for production are waived.¿¿

As ERM properly served the discovery requests and Plaintiff failed to serve responses, the Court finds ERM is entitled to an order directing Plaintiff to provide responses to Set One of ERM’s Form Interrogatories, Special Interrogatories, and Demand for Production of Documents.¿

Monetary Sanctions

ERM requests imposition of monetary sanctions against Plaintiff and her counsel. Given that the Court has granted these motions, the Court finds 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, the Court GRANTS monetary sanctions against Plaintiff and her counsel in the total amount of $630, consisting of 3 hours at counsel’s hourly rate and $180 in filing fees.

IV. CONCLUSION

The motions are granted. Plaintiff Valerie Childress is ordered to provide verified responses to the foregoing discovery.

The request for sanctions is granted. Plaintiff and her counsel are ordered to pay, jointly and severally, sanctions in the amount of $630 to Defendant Equity Residential Management, LLC, 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: August 9, 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.