Judge Kerry Bensinger, Case 21STCV28237 2023-04-13 Tentative Ruling

On July 30, 2021, Plaintiff, Claire Rochon, filed this action against Defendant City of Los Angeles for injuries and damages arising from a fall on an uneven public sidewalk.

On February 6, 2023, the parties participated in an Informal Discovery Conference (IDC) to resolve a dispute regarding Plaintiff’s responses to Defendant’s Form Interrogatories, Special Interrogatories, and Demand for Production of Documents. The Court required Plaintiff to produce substantive responsive pleadings by February 27, 2023. Plaintiff’s failure to comply would entitle Defendant to file their motion(s) to compel further. Plaintiff did not comply.

On March 20, 2022, Defendant filed the instant motion to compel initial responses to Form Interrogatories Nos. 1.1, 2.1, 2.2, 2.5-2.10, 2.12, 2.13, 4.2, 6.1, 6.3, 7.1-7.3, 8.1-8.8, 9.1, 9.2, 10.1-10.3, 11.1, 11.2, 12.1, 13.1, 13.2, and 14.2; Special Interrogatories Nos. 1-14, 16, and 22-24; and Request for Production Nos. 1, 3-9, and 13. Defendant also seeks an order compelling Plaintiff’s further responses to Form Interrogatories Nos. 2.3, 2.4, 2.11, 4.1, 6.2, 6.4-6.7, 12.2-12.7, 14.1; Special Interrogatories Nos. 15, 17-21, 25-27; and Demand for Production Nos. 2, 10, 11, 12. In the notice of motion, Defendant seeks monetary sanctions against Plaintiff and her counsel.

As a preliminary matter, Defendant’s motion is procedurally improper. Defendant seeks an order to compel initial responses and further discovery responses to three distinct sets of discovery. Defendant should have filed six separate motions. Nonetheless, the Court considers the merits.

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).) Moreover, failure to timely serve responses waives objections to the requests. (Code Civ. Proc., §§ 2030.280, subd. (a), 2030.290, subd. (a), 2031.300, subd. (a).)

section 2030.300, a propounding party may move for an order compelling a further response to interrogatories if an answer to a particular interrogatory is evasive or incomplete or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a)(1)-(2).)

The Code of Civil Procedure contemplates three forms of proper responses to an interrogatory: (1) an answer containing the information sought to be discovered; (2) an exercise of the party’s option to produce writings; and (3) an objection to the particular interrogatory. (Code Civ. Proc., § 2030.210, subd. (a)(1)-(3).) Code of Civil Procedure section 2030.220 further provides that each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible. If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party. (Code Civ. Proc., § 2030.220, subds. (a), (b), (c).)

Section 2031.310, parties may move for a further response to requests for production of documents where a statement of compliance is incomplete or where a representation of inability to comply is inadequate, incomplete, or evasive. 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).)

The Code of Civil Procedure contemplates three forms of proper responses to a request for production: a statement of compliance in full or in part (CCP § 2031.220); a statement of inability to comply (CCP § 2031.230); and a partial objection coupled with a statement of compliance or representation of inability to comply (CCP § 2031.240).

A statement of compliance under section 2031.220 has two parts: (1) the responding party “shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part,” and (2) “that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

A representation of inability to comply under section 2031.230 has three parts: the statement must (1) affirm that a diligent search and reasonable inquiry has been made in an effort to comply, and (2) the statement shall specify whether the inability to comply is because “the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” The third part comes into play if the responding party knows or believes someone else has possession of the documents: if so, “[t]he statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

Finally, California 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).)

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 interrogatories or requests for production, 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. (Code Civ. Proc., §§ 2030.030, 2031.310.)

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.)

of the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts for the County of Los Angeles, Central District, Personal Injury (“PI”) Hub Courts will not hear Motions to Compel Further Discovery Responses until the parties have engaged in an IDC. PI Hub Courts may deny or continue a Motion to Compel Further Responses to Discovery if parties fail to schedule and complete an IDC before the scheduled hearing on a Motion to Compel Further Responses to Discovery.

After meeting and conferring about available dates for an IDC, the moving/propounding party shall reserve an IDC through [the Court Reservation System (“CRS”)] and provide notice of the reserved IDC to the opposing/responding party by filing and serving an Informal Discovery Conference Form for Personal Injury Courts (LASC CIV 239) at least 15 court days before the IDC and attach the CRS reservation receipt as the last page. The IDC will not be “scheduled” by the court until the IDC Form is filed. The opposing/responding party may file and serve a responsive IDC Form at least 10 court days before the IDC. All parties shall briefly set forth their respective positions on the pending discovery issues on the IDC Form.

service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c); Code Civ. Proc., § 2031.310, subd. (c).) “[T]he clock on a motion to compel begins to run once ‘verified responses’ or ‘supplemental verified responses’ are served.” (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 135, citing Code Civ. Proc., § 2030.300, subd. (c).) When responses to interrogatories are a combination of unverified responses and objections, the clock begins to run only when the verifications are served. (Id. at p. 136.) “Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based. If any such paper has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice.” (Code Civ. Proc., § 1005.) Thus, the notice must include the interrogatories at issue and supporting law. The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b); Code Civ. Proc., § 2031.310, subd. (b).)

Defendant served the at-issue discovery requests on Plaintiff, December 3, 2021. On February 9, 2022, Plaintiff served responses to some of the written discovery, and failed to respond to others. Specifically, Plaintiff did not respond to Form Interrogatories Nos. 1.1, 2.1, 2.2, 2.5-2.10, 2.12, 2.13, 4.2, 6.1, 6.3, 7.1-7.3, 8.1-8.8, 9.1, 9.2, 10.1-10.3, 11.1, 11.2, 12.1, 13.1, 13.2, 14.2, Special Interrogatories Nos. 1-14, 16, 22-24; and Demand for Production of Documents Nos. 1, 3-9, 13. After several attempts to meet and confer with Plaintiff’s counsel and participating in an IDC, Plaintiff has not provided responses to the foregoing discovery requests. (See Kahramanian Decl.) Therefore, all objections to the interrogatories and demand for production are waived.

As Defendant properly served the discovery requests and Plaintiff failed to serve responses, the Court finds Defendant is entitled to an order directing Plaintiff to provide responses to Defendant’s Form Interrogatories Nos. 1.1, 2.1, 2.2, 2.5-2.10, 2.12, 2.13, 4.2, 6.1, 6.3, 7.1-7.3, 8.1-8.8, 9.1, 9.2, 10.1-10.3, 11.1, 11.2, 12.1, 13.1, 13.2, 14.2, Special Interrogatories Nos. 1-14, 16, 22-24, and Demand for Production of Documents Nos. 1, 3-9, 13.

Plaintiff’s further responses to Form Interrogatories Nos. 2.3, 2.4, 2.11, 4.1, 6.2, 6.4-6.7, 12.2-12.7, 14.1; Special Interrogatories Nos. 15, 17-21, 25-27; and Demand for Production Nos. 2, 10, 11, 12. A review of Plaintiff’s responses as set forth in Defendant’s Separate Statement demonstrates that the objections were meritless and responses devoid of substantive. Accordingly, the Court finds that Defendant is entitled to an order compelling Plaintiff’s further responses to Form Interrogatories Nos. 2.3, 2.4, 2.11, 4.1, 6.2, 6.4-6.7, 12.2-12.7, 14.1; Special Interrogatories Nos. 15, 17-21, 25-27; and Demand for Production Nos. 2, 10, 11, 12.

Plaintiff and her counsel in the amount of $1,200. Given Plaintiff’s failure to provide responses, sanctions are warranted against Plaintiff. Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Counsel for Plaintiff does not meet their burden. Accordingly, Plaintiff’s request for monetary sanctions is GRANTED.

Plaintiff Claire Rochon is to provide verified responses without objection to Form Interrogatories Nos. 1.1, 2.1, 2.2, 2.5-2.10, 2.12, 2.13, 4.2, 6.1, 6.3, 7.1-7.3, 8.1-8.8, 9.1, 9.2, 10.1-10.3, 11.1, 11.2, 12.1, 13.1, 13.2, and 14.2, Special Interrogatories Nos. 1-14, 16, and 22-24, and Demand for Production of Documents Nos. 1, 3-9, and 13, and to produce all documents in her possession, custody, or control which are responsive to the Demand for Production of Documents Nos. 1, 3-9, and 13.

Plaintiff is also to provide further responses to Form Interrogatories Nos. 2.3, 2.4, 2.11, 4.1, 6.2, 6.4-6.7, 12.2-12.7, 14.1, Special Interrogatories Nos. 15, 17-21, 25-27, and Demand for Production of Documents Nos. 2, 10, 11, 12 and to produce all documents in her possession, custody, or control which are responsive to the Demand for Production of Documents Nos. 2, 10, 11, 12.

Plaintiff Claire Rochon and her counsel are ordered to pay, jointly and severally, monetary sanctions to Defendant City of Los Angeles, by and through Defendant’s counsel, in the amount of $1,200 within twenty (20) days of being served with proof that the additional filing fees have been paid.

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.

Hon. Kerry Bensinger

Judge of the Superior Court