Judge Kerry Bensinger, Case Number: 22STCV19504, Date: 2023-08-16 Tentative Ruling

On June 15, 2022, Plaintiff, Health Allen Maynarich, filed this action against Defendants, Jia Apartments, Equity Residential Management, L.L.C. (“ERM”), and Chinatown Gateway, L.L.C (“Chinatown Gateway”) for injuries arising from a physical assault while Plaintiff was located in Defendants’ premises. Plaintiff alleges that he was walking towards his friends’ rental unit in Defendants’ premises when he was suddenly attacked by a defendant John Doe. Plaintiff alleges that Defendant Doe was acting within the course and scope of his employment as a security officer for Defendants.

On October 19, 2022, ERM and Chinatown Gateway (hereafter “Defendants”), served Plaintiff with Set One of Form Interrogatories, Special Interrogatories, and Demand for Production of Documents. Responses were due November 23, 2022, however Plaintiff failed to serve responses. After twice inquiring about the overdue discovery and not receiving any indication that responses would be served, on February 2, 2023, Defendants filed these motions to compel Plaintiff’s responses to discovery. Defendants requests monetary sanctions against Plaintiff and his counsel of record.

On August 4, 2023, Plaintiff filed a consolidated opposition, stating that the motions are moot because Plaintiff served Defendants with verified discovery responses on May 29, 2023. The discovery responses are also attached to the consolidated opposition. Plaintiff requests sanctions against Defendants and their counsel.

On August 9, 2023, Defendants filed a consolidated Reply, arguing that the motions should be granted because Plaintiff did not properly serve the discovery responses. Moreover, the discovery responses themselves are incomplete. However, as it is undisputed that Plaintiff provided late responses to Defendants’ discovery, albeit through improper service, these motions are MOOT. To the extent Defendants take issue with the discovery responses, Defendants are directed to bring a motion to compel further response.[1]

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.)¿

Defendants request sanctions in the total amount of $1,980 ($660 per motion). Plaintiff argues sanctions should be denied because Plaintiff provided responses to prior to the hearing. Further, Plaintiff argues that John Rofael, Plaintiff’s prior attorney, unexpectedly suffered a debilitating medical issue which caused numerous deadlines in this and other cases to be missed. However, as Defendants point out, Plaintiff does not provide the date Mr. Rofael took ill nor does Plaintiff explain Plaintiff’s lack of diligence in responding to the discovery since it was propounded on October 19, 2022 and not served until May 29, 2023 (over seven months after discovery was served and three months after the motions were filed). The Court agrees sanctions are warranted given this background.[2] 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, Defendants’ request for sanctions is GRANTED. Sanctions are imposed against Plaintiff and his counsel in the amount of $930, consisting of 5 hours at defense counsel’s hourly rate and $180 in filing fees.

As the Court has granted Defendants’ request for sanctions, Plaintiff’s request for sanctions is 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 $930 to Defendants, by and through their counsel, within 30 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] If Defendants decide to bring a motion to compel further, Defendants are directed to consult the Eighth Amended Standing Order for the Personal Injury Hub, Central District for the prerequisites for the Court to hear such a motion.

[2] Sanctions would also be warranted if Plaintiff failed to properly serve Defendants with the late responses. However, there is insufficient evidence for the Court to make that determination.