Judge Kerry Bensinger, Case Number: 22STCV01614, Date: 2023-08-08 Tentative Ruling

On January 14, 2022, Plaintiff, Egal Shahbaz, filed this action against Defendants, Bob Smith, John Liska, and Tri-West Enterprises, LLC dba Rocco’s Tavern (“Rocco’s Tavern”), for battery, assault, and negligent hiring, supervision, and training.

On April 19, 2022, Rocco’s Tavern served Plaintiff with Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Productions of Documents, Set One. Plaintiff served responses on July 15, 2022. Rocco’s Tavern took issue with the responses and the parties thereafter participated in an Informal Discovery Conference (IDC) on January 24, 2023 in an attempt to resolve the issues. Plaintiff then served further responses on April 19, 2023. However, Rocco’s Tavern still found Plaintiff’s discovery responses to be deficient, prompting additional meet and confer efforts. Plaintiff served second further responses on May 4, 2023, which Rocco’s Tavern found to be identical to the previous further responses. As the discovery disputes remain unresolved, Rocco’s Tavern filed these motions to compel further discovery responses. Rocco’s Tavern seeks monetary sanctions against Plaintiff and his counsel.

On August 1, 2023, Rocco’s Tavern filed a Notice of Non-Opposition to these motions.

On August 2, 2023, Plaintiff filed a consolidated opposition.^{^[1]} The Court continued the motions to allow Rocco’s Tavern to file a reply.

On August 29, 2023, Rocco’s Tavern filed replies. The Court now rules as follows.

Under Code of Civil Procedure sections 2030.300 and 2031.310, parties may move for a further response to interrogatories and requests for production of documents where an answer to the requests are evasive or incomplete or where an objection is without merit or too general. 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).)

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).)

Finally, Cal. 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).)

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.

With regard to a motion to compel further responses to requests for production, Code of Civil Procedure Section 2031.310, subdivision (h) provides that 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.

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.)

Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the interrogatory or demand for inspection.¿ (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.290, subd. (c).)¿ Here, Rocco’s Tavern filed these motions on May 19, 2023 after Plaintiff served allegedly deficient further responses on April 19, 2023. (See Declarations of Andrew Riccitelli.) Accordingly, the motions are timely.

Additionally, as is required by the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts for the County of Los Angeles, Central District, the parties have participated in an IDC prior to the hearing for this motion.

Rocco’s Tavern seeks further responses to Form Interrogatories, Set One, Nos. 8.5-8.8,[2] Special Interrogatories, Set One, No. 50, and Request for Production, Set One, Nos. 7-10, 23, 29, 33, 44 and 45.

Section 2030.220(a) requires responses to each interrogatory “to the extent possible” which are “as complete and straightforward as the information reasonably available” to the responding party.¿ Section 2030.220 (c) states:¿ 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.¿¿ “The responding party must make a reasonable effort to obtain wherever information is sought; and if unable to do so, must specify why the information is unavailable and what efforts the responding party made to obtain it.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782; Weil & Brown, Cal. Civ. Proc. Before Trial (The Rutter Group 2023) ¶ 8:1061.)

Here, Plaintiff provided confusing responses to Nos. 8.5 and 8.6[3] and meritless objections to Nos. 8.7 and 8.8.

The Code of Civil Procedure contemplates three forms of proper responses to a request for production: (1) a statement of compliance in full or in part (CCP § 2031.220); (2) a statement of inability to comply (CCP § 2031.230); and (3) a partial objection coupled with a statement of compliance or representation of inability to comply (CCP § 2031.240).¿¿¿

(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.”¿¿¿

And, (3) 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.”¿

Here, Plaintiff either provided meritless objections to each Request for Production at-issue, indicated he would provide all non-privileged and non-protected responsive documents, or that there were no non-privileged and non-protected documents responsive to the production request. These are evasive and incomplete answers. To the extent Plaintiff objects based on privilege or work product doctrine, Plaintiff must provide a privilege log.

Accordingly, the motion as to Requests for Production Nos. 7-10, 23, 29, 33, 44 and 45 is GRANTED.

As the Court has granted the motions as to all at-issue discovery (except Form Interrogatory No. 8.4), sanctions are warranted. Sanctions are warranted for the additional reason that Plaintiff filed an untimely opposition. 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 amount of $1,350 which represents 6 hours at defense counsel’s hourly rate and $180 in filing fees.¿

Except as to Form Interrogatory, No. 8.4, the motions are granted. Plaintiff Egal Shahbaz is ordered to provide further responses to Form Interrogatories, Set One, Nos. 8.5-8.8, Special Interrogatories, Set One, No. 50, and Request for Production, Set One, Nos. 7-10, 23, 29, 33, 44 and 45.

The request for sanctions is granted. Plaintiff and his counsel are ordered to pay, jointly and severally, sanctions in the amount of $1,350 to Defendant Tri-West Enterprises, LLC dba Rocco’s Tavern, by and through their counsel.

Further discovery responses are to be provided and sanctions are to be paid within 30 days of the date 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 exercises its discretion to consider Plaintiff’s late opposition. (Cal. Rules of Court, rule 3.1300(d).)

[2] Rocco’s Tavern also sought a further response to Form Interrogatory No. 8.4. However, Rocco’s Tavern appears to abandon a further response to No. 8.4 in their reply. Accordingly, the motion as to No. 8.4 is moot.

[3] Plaintiff also argues further responses should not be compelled as to Nos. 8.5 and 8.6 because Rocco’s Tavern did not provide Plaintiff’s most recent supplemental responses. However, Plaintiff also neglects to provide those supplemental responses. As such, the Court considers the discovery responses as set forth in the separate statements.