Judge: Kerry Bensinger, Case: 21STCV42589, Date: 2023-08-16 Tentative Ruling

Case Number: 21STCV42589    Hearing Date: October 18, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 18, 2023                               TRIAL DATE:  December 6, 2023

CASE:                                Juan Calos Rosas Hernandez v. Steven R. Espinoza, et al.

CASE NO.:                 21STCV42589

MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES

MOVING PARTY:               Plaintiff Juan Carlos Rosas Hernandez

RESPONDING PARTY:     Defendants Steven R. Espinoza, Law Offices of Steven R. Espinoza, SAE & JGE, LLC

I.          INTRODUCTION

            On November 17, 2021, Plaintiff, Juan Carlos Rosas Hernandez, filed this action against Defendants, Law Offices of Steven R. Espinoza, APC (“Espinoza Law Offices”) and SAE & JGE, LLC (“SAE & JGE”), asserting causes of action for (1) general negligence and (2) premises liability.  Trial was set for May 17, 2023.  Pursuant to that trial date, the discovery cutoff was set for April 17, 2023; the discovery motion cutoff was set for May 2, 2023.

On March 12, 2023, Plaintiff served Espinoza Law Offices with Demand for Production of Documents, Set One.  On the same day Plaintiff served SAE & JGE with Special Interrogatories, Set One.

On March 27, 2023, Plaintiff filed an ex parte application to continue trial and extend the discovery deadline.  Based on oral argument, on March 28, 2023, the Court continued the trial to the current trial date of December 6, 2023, and ordered discovery to remain closed “until the discovery motions are heard.”

On April 9, 2023, Plaintiff served SAE & JGE with Demand for Production of Documents, Set One.

Espinoza Law Offices and SAE & JGE served timely responses to Plaintiff’s foregoing discovery requests.  Plaintiff took issue with the responses.  After meet and confer efforts did not resolve the issues, on May 30, 2023 on June 2, 2023, Plaintiff proceeded to file these motions to compel Espinoza Law Offices to provide further responses to the Demand for Production, and for SAE & JGE to provide further responses to Special Interrogatories and Demand For Production of Documents.  Plaintiff seeks sanctions against each defendant and their counsel.

On August 23, 2023, the parties participated in an Informal Discovery Conference (IDC) regarding the foregoing discovery.  The issues were not resolved.  The Court directed the parties to meet and confer no later than August 29, 2023; Plaintiff was specifically ordered to file a detailed Notice of Outcome within five court days after the meet and confer.    

Plaintiff did not file a Notice of Outcome.  On September 8, 2023, Defendants filed a Notice of Outcome and indicated that the parties had met and conferred.  Defendants further explained that Defendants agreed to provide further responses to the at-issue discovery despite not being required to do so.  In exchange, Plaintiff was to take these motions off calendar, which Plaintiff has not yet accomplished.

On September 12, 2023, Espinoza Law Offices filed an opposition to the motion to compel further responses to the Demand for Production.  On the same day, SAE & JGE filed oppositions to the motions to compel further responses to the Demand for Production and Special Interrogatories.  The foregoing oppositions set forth the same arguments as to why Plaintiff’s motions should be denied.  Specifically, Defendants argue Plaintiff’s motions are procedurally improper as discovery remains closed pursuant to the Court’s March 28, 2023 order.  Additionally, Defendants have provided Plaintiff with further responses.  Defendants seek sanctions against Plaintiff for proceeding with these motions.

On September 25, 2023, Plaintiff filed a Statement re: Outcome of Meet & Confer Efforts.  Plaintiff has not filed replies.

Plaintiff’s motions are procedurally deficient.  On March 28, 2023, the Court issued a minute order regarding Plaintiff’s ex parte application to continue the trial.  In that minute order, the Court stated discovery was to remain closed “until the discovery motions are heard.”  At the time Plaintiff sought ex parte relief, Plaintiff had yet to file these motions.  Indeed, Plaintiff had yet to propound the Demand for Production of Documents, Set Two, on SAE & JGE.  Therefore, the Court’s March 28, 2023 minute order did not contemplate unidentified discovery motions that had yet to be filed.  Plaintiff does not address this point in any of its filings in connection with these motions. 

Based on the foregoing, Plaintiff’s motions are DENIED.  

The Court now considers Defendants’ request for sanctions against Plaintiff and his counsel.

II.        LEGAL STANDARD

            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 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., §§ 2030.300, subd. (d), 2031.310, subd. (h).) 

            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

            Defendants seek sanctions against Plaintiff and his counsel.  The Court finds sanctions are warranted.  Plaintiff proceeded with these motions despite the Court advising the parties during IDC that discovery was closed.  Nor has Plaintiff sought to reopen discovery at any point after discovery closed.  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, sanctions are imposed against Plaintiff and his counsel in the sum of $820 representing 2 hours at defense counsel’s hourly rate.

IV.       CONCLUSION        

            The motions are denied.

            Defendants’ request for sanctions is granted.  Plaintiff and his counsel of record are ordered to pay, jointly and severally, sanctions in the amount of $820 to Defendants, by and through their counsel, within 30 days of the date of this order.

            Moving party to give notice.

Dated:   October 18, 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.