Judge Kerry Bensinger, Case Number: 21STCV44998, Date: 2023-08-24 Tentative Ruling

MOVING PARTY: Defendant Auto Spa Connection, Inc. dba Majestic Hand Car Wash

On July 27, 2023, Defendant, Auto Spa Connection, Inc. dba Majestic Hand Car Wash, filed this motion to compel responses to Set One of Form Interrogatories, Special Interrogatories, and Request for Production of Documents from Plaintiff, Samuel Wenger[1]. Defendant seeks sanctions against Plaintiff and his counsel of record.

If a party to whom interrogatories and 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).)¿ Failure to timely serve responses waives objections to the requests.¿ (Code Civ. Proc., §§ 2030.290, subd. (a), 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.¿¿

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).)

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 Plaintiff with the discovery requests on January 13, 2023. Plaintiff’s counsel requested, and Defendant granted, multiple extensions to provide responses. The last deadline to provide responses was June 5, 2023. However, to date, Plaintiff has failed to serve responses.¿ (See Heitmann Decl.)¿ Therefore, all objections to the interrogatories and production requests 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 Set One of Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production of Documents.¿

Defendant requests sanctions against Plaintiff and his counsel. Given the Court has granted this motion, sanctions are warranted. 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 attorney of record in the amount of $531.65, consisting of 2 hours at defense counsel’s hourly rate and $61.65 in filing fees.

The motion is granted. Plaintiff Samuel Wenger is ordered to provide verified, objection-free responses to Set One of Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production of Documents.¿

The request for sanctions is granted. Plaintiff and his attorney of record are ordered to pay, jointly and severally, sanctions in the amount of $531.65 to Defendant, by and through their counsel.

Discovery responses are to be provided and sanctions are to be paid within 20 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] The Court notes that Defendant improperly filed one motion for three sets of discovery. Defendant should have filed three separate motions and reserved three separate hearings. The Court considers the merits of the motion notwithstanding this defect.