Judge Kerry Bensinger, Case BC719036 2023-03-29 Tentative Ruling

On August 23, 2018, plaintiff Darryl Fish (“Plaintiff”) filed this action against defendant Santa Anita Shoppingtown LP, erroneously sued as Westfield Santa Anita, (“Shoppingtown”) alleging causes of action for general negligence and premises liability. In the Complaint, Plaintiff alleges he sustained injures when he stepped into an unmarked two-foot-deep pit in a parking lot owned and maintained by Shoppingtown.

On May 24, 2022, Shoppingtown filed a cross-complaint against Eagle Paving Company Inc., B&J Tree Service (“B&J”), and Marina Landscape, Inc. dba Marina Landscape Maintenance, Inc. aka Marina Co. (“Marina Landscape”) for negligence, breach of contract, express, implied, and equitable indemnity, apportionment, contribution, and declaratory relief.

On July 5, 2022, Eagle Paving Company, Inc. (hereinafter, “Cross-Complainant”) filed a cross-complaint against B&J and Marina Landscape for indemnity, apportionment, and declaratory relief.

On November 2, 2022, Cross-Complainant filed the instant motion to compel Plaintiff’s answer to Form Interrogatories, Set One, and responses to Demand for Production and Inspection of Documents and Things, Set One. Defendants also request imposition of sanctions against Plaintiff and Plaintiff’s counsel of record.

As a preliminary matter, Cross-Complainant’s motion is procedurally improper. It combines motions to compel answers to Form Interrogatories, Set One, and to Demand for Production and Inspection of Documents and Things, Set One, when each should have been filed as a separate motion. Having so noted, the Court proceeds to the merits of the combined motion.

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).) Moreover, failure to timely serve responses waives objections to the requests. (Code Civ. Proc., §§ 2030.280, subd. (a), 2030.290, subd. (a), 2031.300, subd. (a).)

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 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.)

Cross-Complainant electronically served the at-issue discovery requests on Plaintiff, July 6, 2022. Responses were due August 8, 2022. However, Plaintiff failed to provide responses. Cross-Complainants attempted to meet and confer with Plaintiff on October 20, 2022, and November 8, 2022. To date, Plaintiff has yet to respond to Cross-Complainant’s discovery or meet and confer attempts. (Inman Decl., ¶¶ 2-6.) Therefore, all objections to the interrogatories and demand for production are waived.

As Cross-Complainant properly served the discovery requests and Plaintiff failed to serve responses, the Court finds Cross-Complainant is entitled to an order directing Plaintiff to provide responses to Cross-Complainant’s Form Interrogatories, Set One, and Demand for Production and Inspection of Documents and Things, Set One.

Cross-Complainants request imposition of monetary sanctions against Plaintiff and Plaintiff’s counsel of record in the amount of $572 for each motion filed for the sum total of $1,190. Cross-Complainant’s request for monetary sanctions is GRANTED. Plaintiff’s counsel has not met their burden to show that “he or she did not counsel discovery abuse.” (Hennings, supra,¿58 Cal.App.5th¿at p.¿81.) Sanctions are imposed against Plaintiff and Plaintiff’s counsel of record in the reduced amount of $580 representing three hours at Plaintiff’s counsel’s hourly rate of $170 to be paid within 30 of being served with proof that the additional filing fee has been paid.

The motions are granted. Plaintiff Darryl Fish is ordered to provide answers, without objections, to Cross-Complainant Eagle Paving Company, Inc.’s Form Interrogatories, Set One, and to produce all documents in its possession, custody, or control which are responsive to the Demand for Production of Documents and Things, Set One, within 30 days of this order.

The Court orders Plaintiff Darryl Fish and plaintiff’s counsel of record, jointly and severally, to pay monetary sanctions to Cross-Complainant Eagle Paving Company, Inc., by and through Cross-Complainant’s counsel, in the amount of $580 within 30 days of being served with proof that the additional filing fee has been paid.

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.

Hon. Kerry Bensinger

Judge of the Superior Court