Judge: Kerry Bensinger, Case: 22STCV24914, Date: 2023-04-13 Tentative Ruling

Case Number: 22STCV24914    Hearing Date: April 13, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.                   INTRODUCTION

On August 2, 2022, Plaintiff Dorothy Cottrel filed this action against defendants Soon Yull Kwun and Jong Hong Park for injuries arising from an April 3, 2022 motor vehicle accident.

On November 30, 2022, defendant Jong Hong Park (hereinafter, “Defendant”) filed the instant motions to compel Plaintiff’s responses to Set One of Defendant’s Form Interrogatories, Special Interrogatories, and Demand for Production of Documents, and to deem admitted Defendant’s Requests for Admission.  In the notice of motion, Defendant requests sanctions against Plaintiff and her counsel of record.

The motion is unopposed.

II.                LEGAL STANDARDS

A.    Initial 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).)  Moreover, failure to timely serve responses waives objections to the requests.  (Code Civ. Proc., §§ 2033.280, subd. (a), 2030.290, subd. (a), 2031.300, subd. (a).) 

B.     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 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.)¿ 

III.             DISCUSSION

A.    Defendant’s Discovery Requests

Defendant served the at-issue discovery requests on Plaintiff, September 26, 2022.  Responses were due October 31, 2022 but Plaintiff did not provide responses.  Defendant granted Plaintiff an extension to November 18, 2022.  To date, Plaintiff has not responded to Defendant’s discovery requests.  (See Lee Decls.)  Therefore, all objections to the interrogatories and demand for production are waived. 

As Defendant properly served the discovery requests and Plaintiff failed to serve responses, the Court finds Defendant is entitled to an order directing Plaintiff to provide responses to Set One of Defendant’s Form Interrogatories, Special Interrogatories, and Demand for Production of Documents.  In addition, Defendant is entitled to an order deeming admitted Requests for Admission, Set One, against Plaintiff.

B.     Monetary Sanctions 

Defendant requests imposition of monetary sanctions against Plaintiff and their counsel of record in the total amount of $1,821.36 ($455.34 per motion).  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, Defendant’s request for monetary sanctions is GRANTED.  Given that each motion consists of two pages only, the Court imposes sanctions against Plaintiff and their counsel of record in the total reduced amount of $1,200 to be paid within 30 days of the date of notice of this order.

IV.             CONCLUSION

The motion is granted.   

Plaintiff Dorothy Cottrell is ordered to provide verified responses to Set One of Defendant Jong Hong Park’s Form Interrogatories, Special Interrogatories, and Demand for Production of Documents, and to produce all documents in her possession, custody, or control which are responsive to the Demand for Production of Documents within 30 days of the date of notice of this order.  Defendant’s Requests for Admission, Set One, are deemed admitted against Plaintiff.

The Court orders Plaintiff Dorothy Cottrell and her counsel of record, jointly and severally, to pay monetary sanctions of $1200 to Defendant Jong Hong Park, by and through Defendant’s counsel, within 30 days of the date of notice of this order.¿ 

Moving party to give notice.

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.

                                                                                                 Dated this 13th day of April 2023