Judge Kerry Bensinger, Case Number: 22STCV28036, Date: 2023-08-08 Tentative Ruling

Judge: Kerry Bensinger, Case: 22STCV28036, Date: 2023-08-08 Tentative Ruling

Case Number: 22STCV28036 Hearing Date: August 8, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: August 8, 2023 TRIAL DATE: February 23, 2024

CASE: Vivian Lissett Gonzalez v. Leah Harris Komar, et al.

CASE NO.: 22STCV28036

MOTIONS TO COMPEL RESPONSES TO FORM INTERROGATORIES

MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

MOVING PARTY: Plaintiff Vivian Lissett Gonzalez

RESPONDING PARTY: No opposition

I. INTRODUCTION

On August 26, 2022, Plaintiff, Vivian Lissett Gonzalez, filed this action against Defendants, Leah Harris Komar (“Komar”) and Gerald W. Harris (“Harris”), for injuries arising from a motor vehicle collision.

On April 17, 2023, Plaintiff served Defendants with Form Interrogatories, Set One. Additionally, Plaintiff served Komar with a Request for Production of Documents, Set One. Defendants did not serve timely responses. Thereafter, Plaintiff contacted Defendants multiple times requesting the responses. One June 7, 2023, defense counsel finally indicated that discovery responses would be served. However, to date, Defendants have not served any responses to the foregoing discovery.

On July 12, 2023, Plaintiff filed these motions to compel Defendants’ responses to the Form Interrogatories, and to compel Komar’s responses to the Request for Production. Plaintiff seeks sanctions against Defendants and their counsel.

On July 27, 2023, Plaintiff filed a Notice of No Oppositions to the motions to compel.

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).)¿ Failure to timely serve responses waives objections to the requests.¿ (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, 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 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

Plaintiff served Defendants with discovery requests on April 17, 2023. However, despite inquiring about their discovery responses and defense counsel’s representation that Defendants would serve responses, Plaintiff has yet to receive responses to the at-issue discovery.

As Plaintiff properly served the discovery requests and Defendants failed to serve responses, the Court finds that Plaintiff is entitled to an order directing Komar to provide responses to the Form Interrogatories, Set One, and Request for Production of Documents, Set One, and Harris to provide responses to the Form Interrogatories, Set One.

Monetary Sanctions

Plaintiff requests sanctions against Defendants and their counsel. Given that Defendants have failed to provide responses to discovery, the Court finds that 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 does not meet their burden. Accordingly, sanctions are imposed against Komar and her counsel in the total amount of $1,200 ($600 per motion), and against Harris and his counsel in the total amount of $600.

IV. CONCLUSION

The motions are GRANTED. Defendant Leah Harris Komar is ordered provide responses to the Form Interrogatories, Set One, and the Request for Production of Documents, Set One, and to provide responsive documents to the production request. Defendant Gerald W. Harris is ordered to provide responses to the Form Interrogatories, Set One.

The request for sanctions is GRANTED. Defendant Leah Harris Komar and her counsel are ordered to pay, jointly and severally, sanctions in the amount of $1,200 to Plaintiff, by and through plaintiff’s counsel. Defendant Gerald W. Harris and her counsel are ordered to pay, jointly and severally, sanctions in the amount of $600 to Plaintiff, by and through plaintiff’s counsel.

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

Moving party to give notice.

Dated: August 8, 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.