Judge Kerry Bensinger, Case 22STCV04991 2023-04-07 Tentative Ruling

On February 9, 2022, plaintiff Monika Chavez-Moffa (“Plaintiff”) filed this action against defendants Thomas Edward Brown aka Albert Dewaye Brown (“Defendant”) for negligence, negligence per se, assault, battery, and intentional infliction of emotional distress arising from an altercation on November 24, 2021.

On November 23, 2022, Plaintiff filed the instant motion to compel Defendant’s responses to Form Interrogatories. Defendant also requests imposition of sanctions against Defendant and their counsel of record.

If a party to whom interrogatories 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).) Moreover, failure to timely serve responses waives objections to the request. (Code Civ. Proc., §2030.290, 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).)¿¿

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.)

Plaintiff served the at-issue discovery request on Defendant, April 14, 2022. To date, Defendant has not provided responses to Plaintiff’s discovery. (See Ruttenberg Decl.) Therefore, all objections to the interrogatories are waived.

As Plaintiff properly served the discovery request and Defendant failed to serve responses, the Court finds Plaintiff is entitled to an order directing Defendant to provide responses to Plaintiff’s Form Interrogatories.

Plaintiff requests imposition of monetary sanctions against Defendant and their counsel of record. 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.)¿ Defense counsel does not meet their burden. Accordingly, Plaintiff’s request for monetary sanctions is GRANTED. Sanctions are imposed against Defendant and their counsel of record in the amount of $1,560 (2.5 hours at Plaintiff’s counsel hourly rate of $600 and $60 filing fee) to be paid within 30 days of the date of notice of this order.

Defendant is ordered to provide verified responses to Plaintiff’s Form Interrogatories, within 30 days of the date of notice of this order.

The Court orders Defendant and their counsel of record, jointly and severally, to pay monetary sanctions of $1,260 to Defendant, by and through Plaintiff’s counsel, within 30 days of the date of notice 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.

Hon. Kerry Bensinger

Judge of the Superior Court