Judge Kerry Bensinger, Case Number: 21STCV17703, Date: 2024-05-16 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On February 5, 2024, Plaintiff Excel Adjusters Inc. (“Excel” or “Plaintiff”) filed these motions to compel Defendant Tigran Petrosyan (“Petrosyan” or “Defendant”) to provide responses to Form Interrogatories, Set One, and to have Requests for Admission, Set One, deemed admitted against Petrosyan. Excel also seeks sanctions against Petrosyan and his counsel of record.

If a party to whom interrogatories 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).) If a party to whom requests for admission are directed fails to serve a timely response, the propounding party may move for an order that the truth of the matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) Failure to timely serve responses waives objections to the requests. (Code Civ. Proc., §§ 2030.290, subd. (a), 2033.280, subd. (a).) A party moving to compel discovery responses under these statutory provisions is not required to meet and confer prior to filing the motion.¿ (See Code Civ. Proc., §§ 2030.290, subd. (b), 2031.300, subd. (b); see also Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411 (Sinaiko) (citing Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906 for the proposition that “meet and confer” requirement “did not apply when propounding party sought order compelling responses to interrogatories and sanctions for responding party's failure to respond ‘within the statutorily permitted time’”).)¿¿¿

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, 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).) 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.)¿

Plaintiff moves for an order compelling Petrosyan to provide responses to Plaintiff’s Form Interrogatories and to deem admitted the Requests for Admission.

It is undisputed that Plaintiff properly served Petrosyan with the at-issue discovery requests on September 12, 2023.¿ To date, Petrosyan has not served responses. Accordingly, all objections to the discovery requests are waived. Further, Plaintiff is entitled to an order compelling responses to the interrogatories and to deemed admitted the requests for admission.

Plaintiff requests sanctions against Petrosyan. Given the Court’s ruling, sanctions are warranted. In the context of admissions request, they are mandatory. (Code Civ. Proc., § 2033.280, subd. (c).) 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, sanctions are imposed against Petrosyan and his counsel of record in the amount of $1,034.26, consisting of two hours at plaintiff’s counsel hourly rate and $134.26 in filing fees.

The unopposed motions are GRANTED. Defendant Tigran Petrosyan is ordered to provide verified, objection-free responses to Plaintiff Excel Adjusters Inc.’s Form Interrogatories, Set One, within 30 days of this order. Plaintiff Excel Adjusters Inc.’s Requests for Admission, Set One, is deemed admitted against Defendant Tigran Petrosyan.

The request for sanctions is granted. Defendant Tigran Petrosyan and his counsel of record are ordered to pay, jointly and severally, sanctions in the amount of $1,034.26 to Plaintiff, by and through its counsel within 30 days of this order.

The stay in this case is lifted pursuant to the court’s orders issued on September 15, 2022 and June 13, 2023.

Kerry Bensinger

Judge of the Superior Court

[1] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)