Judge Kerry Bensinger, Case Number: 22STCV04118, Date: 2023-05-25 Tentative Ruling

On February 2, 2022, Plaintiff, Jose Cisneros, filed this action against Defendants, City of Industry, City of Los Angeles, Xebec Building Company, Inc., and American Wrecking, Inc., for injuries arising in a trip and fall on an exposed gap of Defendants’ sidewalk. On April 18, 2022, Plaintiff named L&M Construction, Inc. (“L&M”) as Doe 1.

On December 21, 2022, L&M filed these motions to compel Plaintiff to serve further, verified responses to Form Interrogatories, Requests for Production of Documents, and Requests for Admissions. L&M seeks monetary sanctions against Plaintiff and his counsel.

The parties participated in an Informal Discovery Conference on March 30, 2023. The parties filed a joint statement on May 15, 2023 indicating that discovery disputes persisted, but that the issues had been narrowed to the following discovery: (1) Form Interrogatories Nos. 2.13, 10.1(c), and 17.1, (2) Requests for Production Nos. 8, 13, and 14, and (3) Requests for Admission 1-11 and 19. As such, L&M proceeds with its motions to compel as to those discovery requests only.

Under Code of Civil Procedure section 2031.310, parties may move for a further response to requests for production of documents where a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or where an objection is without merit or too general.

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); Code Civ. Proc., § 2031.310, subd. (c).) 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).)

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”¿ (Cal. Rules of Court, rule 3.1346.)

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).)¿¿¿ In the context of a motion to deem requests for admission admitted, it is mandatory that the court impose monetary sanctions on the party or attorney, or both, whose failure to serve a timely response to the request necessitated the motion.¿ (Code Civ. Proc., § 2033.280, 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.)¿

L&M seeks Plaintiff’s further response to Form Interrogatories (“FROG”) Nos. 2.13, 10.1, and 17.1.

Plaintiff asserted baseless objections as to Nos. 2.13 and 10.1. Accordingly, the motion is GRANTED as to FROG No. 2.13 and 10.1. No. 17.1 relates to the Requests for Admissions (“RFA”). Plaintiff did not provide responses to the at-issue RFAs and thus, did not respond. Because the Court grants the motion as to the at-issue RFAs, discussed below, the motion is GRANTED as to FROG No. 17.1

L&M seeks Plaintiff’s further response to Requests for Admissions (“RFA”) Nos. 1-11 and 19. Plaintiff asserted baseless objections as to each request. Accordingly, the motion is GRANTED as to RFA Nos. 1-11 and 19.

L&M seeks Plaintiff’s further response to Requests for Production (“RPD”) Nos. 8, 13, and 14. As to No. 8, Plaintiff agreed to provide further response but referred to documents produced as Exhibit 3 that was never produced. As to Nos. 13 and 14, Plaintiff asserted baseless objections on the grounds that the information was not relevant or calculated to the discovery of admissible evidence. Accordingly, the motion is GRANTED as RPD Nos. 8, 13, and 14.

L&M requests sanctions in the amount of $1,360 for each motion. As the Court has granted the motion to each at-issue discovery request, the Court finds sanctions are warranted.

The Court also imposes sanctions against counsel for 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.)¿ Plaintiff’s counsel does not meet their burden.¿ Accordingly, the Court imposes monetary sanctions against Plaintiff and their counsel in the reduced amount of $980, which represents 4 hours at L&M’s counsel’s hourly rate and $180 in filing fees.¿

The motions are granted. Plaintiff is ordered to provide further responses to Form Interrogatories Nos. 2.13, 10.1, and 17.1; Requests for Production Nos. 8, 13, and 14; and Requests for Admissions Nos. 1-11 and 19.

Defendant L&M Construction, Inc.’s request for sanctions is GRANTED. Plaintiff and their counsel of record, jointly and severally, are ordered to pay sanctions to L&M, by and through Plaintiff’s counsel, in the amount of $980.

Sanctions are to be paid and further responses are to be provided within 20 days.

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 failure of the opposing party to serve and file a written opposition may be construed by the court as an admission that the motion is meritorious, and the court may grant the motion without a hearing on the merits. (Cal. Rules of Court, rule 3.1342.)