Judge Kerry Bensinger, Case Number: 22STCV21207, Date: 2023-10-23 Tentative Ruling

Judge: Kerry Bensinger, Case: 22STCV21207, Date: 2023-10-23 Tentative Ruling

Case Number: 22STCV21207 Hearing Date: October 23, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: October 23, 2023 TRIAL DATE: May 20, 2024

CASE: Ana Luisa Matul Lopez Gomez v. Aurelio Sanchez, et al.

CASE NO.: 22STCV21207

MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES

MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES

MOTION TO COMPEL RESPONSES TO DEMAND FOR INSPECTION AND PRODUCTION OF DOCUMENTS

MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED

MOVING PARTY: Plaintiff Ana Luisa Matul Lopez Gomez

RESPONDING PARTY: Defendant Aurelio Sanchez

I. INTRODUCTION

On August 14, 2023, Plaintiff, Ana Luisa Matul Lopez Gomez, filed this motion to compel Defendant, Aurelio Sanchez, to provide responses to Plaintiff’s First Set of Form Interrogatories, Special Interrogatories, and Request for Production of Documents, and to deem Requests for Admission, Set One, admitted against Defendant. Plaintiff seeks sanctions against Defendant and his counsel of record.

Defendant opposes and Plaintiff replies.

II. LEGAL STANDARD TO COMPEL DISCOVERY RESPONSES

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).) If a party to whom requests for admission are directed fails to serve a timely response, the propounding party may move for an order that the truth of the matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) Failure to timely serve responses waives objections to the requests. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a), 2033.280, subd. (a).)

Monetary Sanctions

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 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.)¿

III. DISCUSSION

Defense counsel contends good cause exists to delay ruling on the subject motions. Specifically, Defense counsel explains having lost contact with Defendant which prevented providing responses to the at-issue discovery. Defense counsel further explains that after locating and speaking with Defendant, Defendant unequivocally indicated that he was no longer willing to cooperate in the defense of this matter. For this reason, Defense counsel has filed a motion to be relieved as counsel and requests that the Court continue Plaintiff’s discovery motions to allow Defendant to find new counsel.

Good cause does not exist to delay consideration of Plaintiff’s discovery motions. It is undisputed Plaintiff properly served Defendant with the at-issue discovery requests on March 13, 2023. It is further undisputed that Defendant has not provided responses to the discovery requests despite being given several extensions to do so.¿ (See Khorshidi Decls.)¿ Defense counsel succeeds only in making clear that Defendant refuses to participate at all in this litigation.

As Plaintiff properly served the discovery requests and Defendant failed to serve responses, all objections to the discovery requests are waived. Moreover, Plaintiff is entitled to an order directing Defendant to provide responses to the Form Interrogatories, Special Interrogatories, and Request for Production of Documents, Set One.¿ Plaintiff is also entitled to an order deeming admitted Request for Admissions, Set One, against Defendant.

Monetary Sanctions

Plaintiff requests sanctions against Defendant and his counsel. Given the Court has granted this motion, sanctions are warranted. Indeed, in the context of requests for admission, sanctions are mandatory. (Code Civ. Proc., § 2033.280, subd. (c).) 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.) Defense counsel meets their burden. Accordingly, sanctions are imposed against Defendant alone in the amount of $2,190, representing 3 hours at plaintiff’s counsel’s hourly rate and $240 in filing fees.

IV. CONCLUSION

The motion is granted. Defendant Aurelio Sanchez is ordered to provide verified, objection-free responses to Plaintiff’s First Set of Form Interrogatories, Special Interrogatories, and Request for Production of Documents. Plaintiff’s Request for Admissions, Set One, is deemed admitted against Defendant.

The request for sanctions is granted. Defendant is ordered to pay sanctions in the amount of $2,190 to Plaintiff, by and through her counsel.

Discovery responses are to be provided and sanctions are to be paid within 30 days of the date of this order.

Moving party to give notice.

Dated: October 23, 2023 ___________________________________

Kerry Bensinger

Judge of the Superior Court

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.