Judge Kerry Bensinger, Case 21STCV28580 2023-05-16 Tentative Ruling

On August 3, 2021, Plaintiff Ronnie Palache filed this action against Defendant City of Los Angeles for injuries arising from an alleged trip and fall on September 9, 2020.

On December 20, 2021, Defendant served Plaintiff with a Demand for Inspection and Production of Documents.[1] The deadline for Plaintiff to respond was January 24, 2022. Having received no responses, on January 12, 2023, Defendant filed this motion to compel Plaintiff’s response. In the notice of motion, Defendant requests sanctions against Plaintiff and his counsel.

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

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.

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.)

Defendant served the at-issue discovery request on Plaintiff, December 20, 2021. Plaintiff’s counsel represented that Plaintiff intended to provide a response, and Defendant therefore agreed to delay filing this motion until after July 22, 2022. However, to date, Plaintiff has not responded to Defendant’s inspection demand. (See Kahramanian Decl.) Therefore, all objections to the demand for inspection and production of documents are waived.¿

As Defendant properly served the discovery request and Plaintiff failed to serve responses, the Court finds Defendant is entitled to an order directing Plaintiff to provide responses to the at-issue discovery.¿

Defendant requests imposition of $300 in monetary sanctions against Plaintiff and his counsel. Defendant offers the Declaration of Lala Kahramanian to substantiate the request.¿

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.)¿ Although Plaintiff’s counsel has not opposed this motion or submitted a declaration explaining why sanctions should not be imposed, the Court notes that Plaintiff’s counsel sought to be relieved as counsel for Plaintiff’s lack of cooperation in responding to discovery. (See 3/24/23 Motion to Be Relieved.)¿ Accordingly, the Court GRANTS monetary sanctions against Plaintiff only in the reduced amount of $150.

Plaintiff Ronnie Palache is ordered to provide verified, objection-free responses to Defendant’s Demand for Inspection and Production of Documents and to produce all documents in his possession, custody, or control which are responsive to the Demand within 30 days of this order.

The Court imposes $150 in monetary sanctions against Plaintiff to be paid to Defendant, by and through their counsel, within 30 days of this order.

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.

[1] Defendant also filed motions to compel Plaintiff’s responses to form interrogatories and special interrogatories on December 1, 2022. The Court granted those motions on December 30, 2022.