Judge: Kerry Bensinger, Case: 22STCV26937, Date: 2023-08-24 Tentative Ruling

Case Number: 22STCV26937    Hearing Date: August 24, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:      August 24, 2023                                            TRIAL DATE:  February 16, 2024

CASE:                         Carmen A. Gomez v. Bodega Latina Corporation

CASE NO.:                 22STCV26937

MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY

MOVING PARTY:               Plaintiff Carmen A. Gomez

RESPONDING PARTY:     Defendant Bodega Latina Corporation

I.          BACKGROUND

On August 10, 2022, Plaintiff, Carmen A. Gomez, filed this action against Defendant, Bodega Latina Corporation dba El Super for injuries arising from a slip and fall incident on Defendant’s premises.

On October 26, 2022, Plaintiff served Defendant with Request for Productions of Documents, Set One.   Defendant served responses on December 1, 2022 which Plaintiff found to be inadequate.  The meet and confer efforts did not resolve issues.  The parties scheduled an Informal Discovery Conference (IDC), which took place on April 25, 2023.  At the IDC, the Court advised the parties to meet and confer.  The parties later met and conferred, and Defendant agreed to supplement their responses.  On June 16, 2023, Defendant provided supplemental responses.  Plaintiff followed up with Defendant regarding Defendant’s supplemental response to Request for Production, No. 42.  However, after not hearing from defense counsel, Plaintiff proceeded to file this motion to compel a further response to Request for Production No. 42.  Plaintiff seeks monetary sanctions against Defendant and its counsel. 

Request for Production No. 42 concerns timesheets for any and all employees who signed sweep sheets of Defendant’s premises on the day of the incident.  On August 15, 2023, Defendant filed an opposition, arguing the motion should be denied because Defendant has since produced timesheets consistent with Defendant’s understanding of the parties’ agreement.  Specifically, Defendant produced timesheets for the employees who signed the sweep sheet for the produce department on the date of the incident.  Defendant states the timesheets were inadvertently not attached to the supplemental response.  Plaintiff advised Defendant that the agreement encompasses timesheets of all employees who signed any sweep sheets on the date of the incident.  Defendant concedes that the timesheet for those employees (two more, in all) have yet to be produced, but will be produced. 

Plaintiff has filed a reply, arguing the Court should disregard Defendant’s late opposition.[1]  Plaintiff also points out that timesheets for two employees (as conceded by Defendant) have not been produced. 

II.        LEGAL STANDARDS FOR COMPELLING FURTHER RESPONSES

Under Code of Civil Procedure sections 2030.300 and 2031.310, parties may move for a further response to interrogatories or requests for production of documents where a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or where an objection is without merit or too general.  

Notice of the motions 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); 2031.310, subd. (c).)  The motions must also be accompanied by a meet and confer declaration.  (Code Civ. Proc., §§ 2030.300, subd. (b); 2031.310, subd. (b).)   

Finally, Cal. 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, subd. (a)(3).)¿¿ 

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 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.)¿

III.       DISCUSSION

Defense counsel concedes all responsive documents to Request for Production No. 42 have not been produced.  Accordingly, the Court finds Plaintiff is entitled to an order compelling Defendant’s further response to Request for Production No. 42. 

Monetary Sanctions

Plaintiff requests monetary sanctions against Defendant and their counsel.  Given Defendant’s untimely and incomplete production of documents after agreeing to provide a further response, the Court finds sanctions are warranted.  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 states the late production was the result of an oversight.  And as to the timesheets that have yet to be produced, defense counsel explains she did not understand the parties’ agreement to encompass timesheets for all employees who signed sweep sheets.  Defense counsel has requested her client to produce those timesheets.  Defense counsel meets her burden to show she did not counsel discovery abuse.  However, given that the late production appears attributable, in part, to counsel’s misunderstanding and oversight, the Court finds some sanctions against counsel only are warranted.¿ Accordingly, sanctions are imposed against defense counsel in the amount of $360, which represents one hour at plaintiff’s counsel’s hourly rate and $60 in filing fees.¿ 

IV.       CONCLUSION

            The motion is granted.  Defendant Bodega Latina Corporation is ordered to provide all responsive documents to Request for Production No. 42.

            The request for sanctions is granted.  Defense counsel is ordered to pay monetary sanctions to Plaintiff, by and through Plaintiff’s counsel, in the amount of $360.

            Responsive documents are to be provided and sanctions are to be paid within 20 days of this order.

Moving party to give notice. 

Dated:   August 24, 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.