Judge: Kerry Bensinger, Case: 22STCV28878, Date: 2023-05-24 Tentative Ruling

Case Number: 22STCV28878    Hearing Date: May 24, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     May 24, 2023                         TRIAL DATE:  February 28, 2024

CASE:                                Victor Manuel B. Olazabal, et al. v. Hashem 26, LLC

CASE NO.:                 22STCV28878

MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY

MOVING PARTY:               Plaintiff Victor Manuel B. Olazabal

RESPONDING PARTY:     Defendant Hashem 26, LLC

I.          BACKGROUND

            On August 31, 2022, Plaintiffs, Victor Manuel Benites Olazabal (“Victor”), Joselyn Olazbal, Chemo’s Upholstery, and OLSA Immigration Services, filed this action against Defendant, Hashem 26, LLC (erroneously sued as “Hasem 26, LLC”) for general negligence and premises liability arising from an electrical fire that destroyed the retail space at 5821 and 5821 ½ W. Pico Blvd., Los Angeles, California 90019, and damaged the next door retail space.  Defendant allegedly owned, maintained, managed, and operated the subject premises. 

On October 18, 2022, Victor (hereinafter, “Plaintiff”) served Defendant with Set One of Form Interrogatories, Special Interrogatories, Demand for Production of Documents and Things, and Requests for Admission.  However, having received no responses, on March 23, 2023, Plaintiff filed this motion to compel Defendant’s verified, objection-free responses.  In the notice of motion, Plaintiff requests monetary sanctions against Defendant and/or their counsel. 

The motion is unopposed.

As a preliminary matter, Plaintiff’s motion to compel responses is procedurally improper.  First, Plaintiff seeks to compel responses to four types of discovery when a separate motion should have been filed as to each.  Second, the proper mechanism for addressing a failure to provide responses to Requests for Admission is a “motion to deem admitted,” not a motion to compel responses.  (See Code Civ. Proc., § 2030.280, subd. (b).)  A motion to compel initial responses to requests for admission does not exist.  Here, the Court considers the motion to compel responses to Requests for Admission as a motion to deem Requests for Admission admitted.

II.        LEGAL STANDARDS

A.    Compel 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.     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

A.    Analysis

Plaintiff served the at-issue discovery requests on Defendant, October 18, 2022.  Defense counsel requested multiple extensions to respond to Plaintiff’s interrogatories, demand for production, and requests for admission.  The deadline to provide discovery responses was March 1, 2023.  However, at the time of the filing of this motion, Defendant had not responded to Plaintiff’s written discovery requests.  (See Braun Decl.) 

Defendant contends that this motion is moot because Defendant provided responses to Plaintiff’s written discovery on March 29, 2023, and supplemental responses on May 11, 2023.  (See Steffy Decl.)  In support, Defendant attaches its discovery responses.

Based on Defendant’s submission and the absence of Plaintiff’s reply, the Court finds this motion is MOOT.

B.     Monetary Sanctions¿ 

Plaintiff requests imposition of monetary sanctions against Defendant in the total amount of $2,160 for the preparation of this motion and sending a meet and confer letter. 

Defendant argues sanctions are not warranted because verified discovery responses have been provided, and further, the requested sanctions are excessive. 

The Court finds that sanctions are not only warranted, but they are mandatory.  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).)¿¿¿Here, it is undisputed that Defendant did not serve timely responses to Plaintiff’s discovery requests, including to the Requests for Admission.  Under these circumstances, the Court is statutorily required to impose a monetary sanction.  Additionally, pursuant to Hennings, supra, defense counsel does not meet their burden to show it did not counsel discovery abuse.

Accordingly, the Court imposes monetary sanctions against Defendant and their counsel in the reduced amount of $935, which consists of 2.5 hours at Plaintiff’s counsel’s hourly rate and $60 filing fee.

IV.       CONCLUSION 

The motion to compel discovery responses is MOOT. 

The request for sanctions is GRANTED.  The Court imposes $935 in monetary sanctions against Defendant and their counsel, jointly and severally, to be paid to Plaintiff Victor Manuel Benites Olazabal, by and through their counsel, within 30 days of this order.  

The Court orders Plaintiff Victor Manuel Benites Olazabal to pay 3 additional filing fees for this motion and to file proof of payment within 30 days of this order.

Moving party to give notice. 

Dated:   May 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.