Judge: Kerry Bensinger, Case: 21STCV09345, Date: 2023-08-21 Tentative Ruling

Case Number: 21STCV09345    Hearing Date: August 21, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 21, 2023                                 TRIAL DATE:  September 8, 2024

CASE:                                Wesley Schwartz v. City of Los Angeles

CASE NO.:                 21STCV09345

MOTIONS TO COMPEL RESPONSES TO DISCOVERY

MOVING PARTY:               Defendant City of Los Angeles

RESPONDING PARTY:     Plaintiff Wesley Schwartz

I.          BACKGROUND

            On March 10, 2021, Plaintiff, Wesley Schwartz, initiated this action against Defendant, City of Los Angeles, for injuries Plaintiff sustained when, while riding his scooter on Abbot Kinney Boulevard, his scooter suddenly hit a pothole and caused Plaintiff to fly through the air and collide with a bicycle rack on the sidewalk.

On April 26, 2023, Defendant served Plaintiff with its second and third set of discovery, including, Form Interrogatories (Set Two), Requests for Admissions (Set Two), Special Interrogatories (Set Three), and Request for Production of Documents (Set Three).  The deadline for Plaintiff to respond was May 24, 2023.  Defendant granted Plaintiff four extensions related to this discovery with the final deadline to provide responses being July 20, 2023. 

On July 26, 2023, having not received responses, Defendant filed these motions to compel responses to Form Interrogatories (Set Two), Special Interrogatories (Set Three), and Request for Production of Documents (Set Three), and to deem admitted Requests for Admissions (Set Two) against Plaintiff.  In the notices of motion, Defendant requests monetary sanctions against Plaintiff and his counsel. 

On August 14, 2023, Plaintiff filed Non-Oppositions to the motions to compel responses to Form Interrogatories (Set Two), Special Interrogatories (Set Three), and Request for Production of Documents (Set Three), and an Opposition to the motion to deem admitted Requests for Admissions (Set Two).  In the filings, Plaintiff attaches verified responses to the at-issue discovery and argues the late responses, which were served on Defendant prior to the hearing, are substantially code compliant.  As such, Plaintiff requests the Court to impose minimal sanctions with respect to the Requests for Admissions (Set Two), to deny the request for sanctions in connection with the remaining discovery, and to relieve Plaintiff from the waiver of objections.  The responses are mixed facts and objections. 

On the same day, Defendant filed Replies, arguing (1) Plaintiff’s untimely Opposition should be disregarded, (2) Plaintiff must file a noticed motion to obtain relief from the waiver of objections, and (3) the motions to compel and to deem admitted the admissions request should be granted, along with the requests for sanctions.

Defendant does not dispute having received Plaintiff’s verified responses, albeit untimely, prior to this hearing.  Accordingly, the motions are MOOT.  If Defendant takes issue with the responses, Defendant must meet and confer, and if necessary, file a motion to compel further response, subject to the requirements under the Eighth Amended Standing Order for the Personal Injury Hub, Central District. 

The remaining issues are whether to relieve Plaintiff of the waiver of objections and the request for sanctions.  Defendant indicates it has not had an opportunity to review Plaintiff’s responses and determine whether they are substantially compliant. The Court intends to hear from the parties on this issue.

The Court now addresses Defendant’s request for sanctions.

II.        LEGAL STANDARDS

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

It is undisputed Plaintiff served late responses even after Defendant granted four extensions to respond.  Plaintiff waived the right to object to the interrogatories and requests for production, yet still interposed objections in his responses.  Under these facts, and given that sanctions in the context of late responses to Requests for Admissions are mandatory, the Court finds sanctions are warranted as to all at-issue discovery.

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.)  Here, Plaintiff’s counsel concedes service of Plaintiff’s discovery responses was untimely.  To that end, Plaintiff’s counsel requests sanctions be imposed against counsel alone in connection with the Requests for Admission (Set Two).  However, with respect to the Form Interrogatories (Set Two), Special Interrogatories (Set Three), and Request for Production (Set Three), Plaintiff’s counsel argues sanctions should be denied because the failure to provide timely response was the product of excusable neglect.  Specifically, counsel explains the at-issue discovery fell through the cracks as Plaintiff’s case file was transferred from Plaintiff’s former representation (and counsel’s former law firm), Stalwart Law Group, to counsel’s new law firm.  Further, counsel cannot explain why previous counsel requested three extensions to respond to the discovery.  Although Plaintiff’s counsel demonstrates he did not counsel discovery abuse, he also concedes the discovery “fell through the cracks” even after requesting an additional extension to provide responses (the fourth extension overall).  It is not clear responses would have been provided at all if Defendant had not filed these motions.  Accordingly, the Court finds sanctions are also warranted against counsel for the specific failure to provide timely responses after requesting an extension to respond.  Sanctions are imposed against Plaintiff’s counsel only in the amount of $958.95, representing three hours at defense counsel’s hourly rate, and $51.45 in filing fees. 

IV.       CONCLUSION 

The motions are moot. 

The request for sanctions is granted.  Sanctions are imposed against Plaintiff’s counsel of record in the amount of $958.95, to be paid to Defendant, by and through their counsel, within 30 days of this order.  

The Court will hear from the parties as to Plaintiff’s request for relief from the waiver of objections.  If Defendant finds the responses not to be in substantial compliance, Plaintiff must file a noticed motion to seek relief from the waiver.  Prior to filing any motion, the parties are ordered to meet and confer and schedule an IDC in compliance with the 8th Amended Standing Order.

Moving party to give notice. 

Dated:   August 21, 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.