Judge Kerry Bensinger, Case Number: 22STCV25084, Date: 2024-11-08 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOTION TO COMPEL FURTHER RESPONSES BY DEFENDANT JOSHUA DRISKELL TO FORM INTERROGATORIES, SET ONE

This is a legal malpractice action. Plaintiff, Fred Goldstein, a self-represented litigant, alleges that he retained Defendants Joshua Driskell (Driskell or Defendant), Primuth Driskell & Terzian LLP, and Lagerlof LLP, in November 2018 to represent Plaintiff in the underlying probate action filed as 18STPB11264 in the County of Los Angeles.

On May 28, 2024, Plaintiff served Driskell with Form Interrogatories, Set One. Driskell electronically served verified responses on June 27, 2024. The responses were a mixture of objections and substantive responses.

On August 14, 2024, Plaintiff filed this Motion to Compel Further Responses by Defendant Joshua Driskell to Form Interrogatories, Set One. Plaintiff seeks sanctions against each Defendant and his counsel of record.

The motion was heard on September 12, 2024. The court found the motion was timely filed but continued the matter because the parties had not participated in an Informal Discovery Conference (IDC) prior to the hearing of this motion. The parties participated in an IDC on October 8, 2024. The issues were not resolved.

On October 11, 2024, Defendants filed a Notice of Outcome of Informal Discovery Conference. The Notice indicates that Defendants would serve amended responses.

On October 28, 2024, Defendants filed a further opposition to Plaintiff’s motion. In the further opposition, Defendants indicate they served amended responses on October 25, 2024.

Under Code of Civil Procedure section 2030.300, parties may move for a further response to interrogatories where an answer to the requests is evasive or incomplete or where an objection is without merit or too general.¿

Notice of the motion 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).)¿ The motion must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., § 2030.300, subd. (b)(1).)

¿¿¿¿ Finally, California Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. Rules of Court, rule 3.1345(a)(3).)¿¿¿

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., § 2031.310, subd. (h).)¿

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.)¿

Unless notice of the motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the interrogatory.¿ (Code Civ. Proc., §§ 2030.290, subd. (c).)¿ ¿The motion must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., § 2030.300, subd. (b)(1).)

The parties disagree over whether this motion was timely filed. Contrary to Defendant’s position, the motion is timely. Defendant electronically served his responses on June 27, 2024. Accounting for the two extra days for electronic service (Code Civ. Proc., § 1010.6, subd. (a)(3)(B)), and the 45^th day landing on a Sunday (Code Civ. Proc., § 12a), Plaintiff timely filed this motion 47 days later on August 14, 2024. The motion is timely.¿

Plaintiff’s motion is moot. Defendants served amended responses on October 25, 2024. A privilege log was also provided. (Niedabalski, ¶¶ 8-9, Exs. 3and 4.) Plaintiff has not indicated or otherwise shown how the amended responses are defective.

Even if Plaintiff takes issue with Defendants’ amended responses, the court finds they are code-compliant. Defendants asserted meritorious objections based on relevancy to interrogatories which are tailored to motor vehicle accidents. (See, e.g., Form Interrogatory No. 2.3.) In other respects, Plaintiff simply takes issue with the “credibility” of Defendants’ response. (See, e.g., Form Interrogatory Nos. 4.1, 12.1, 12.2, 12.6.)

Plaintiff’s Motion to Compel Further Responses by Defendant Joshua Driskell is DENIED. Given the court’s ruling, Plaintiff’s request for sanctions is DENIED.

Kerry Bensinger

Judge of the Superior Court