Judge Kristin S. Escalante , Case 21STCV06837 2023-03-27 Tentative Ruling

Judge: Kristin S. Escalante , Case: 21STCV06837, Date: 2023-03-27 Tentative Ruling

DEPARTMENT 24 - LAW AND MOTION RULINGS

Submission Instructions.

1. Please notify the courtroom staff by email not later than 4:00 p.m. the day before the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SMCDEPT24@lacourt.org. Please do not use any other email address. You must cc all other parties on the email.

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5.Tentative rulings are not invitations or opportunities to file further documents relative to the hearing before the Court. Said document(s) will not be considered by the Court.

NATURE OF PROCEEDINGS: Hearing on Motion to Compel Discovery (not "Further Discovery"); Hearing on Motion to Compel Defendant City of Los Angeles's Discovery Responses and Request for Monetary Sanctions against City of Los Angeles;

TENTATIVE RULING:

The Court has read the moving papers in the above-captioned motions and announces its tentative rulings in open Court.

The Motion to Deem RFA's Admitted Set One to Defendant City of Los Angeles and Request for Monetary Sanctions against City of Los Angeles; reservation no.: 082371414373 filed by Plaintiff Sylvana McGraw on 03/01/2023; the Motion to Compel Defendant City of Los Angeles's Discovery Responses and Request for Monetary Sanctions against City of Los Angeles; reservation no.: 160119087192 filed by Plaintiff Sylvana McGraw on 03/01/2023; the Motion to Deem RFA's Admitted Set One to Defendant Andrew Taylor and Request for Monetary Sanctions against Andrew Taylor; reservation no.: 207471085945 filed by Plaintiff Sylvana McGraw on 03/01/2023; and the Motion to Compel Defendant Andrew Taylor's Discovery Responses and Request for Monetary Sanctions against Andrew Taylor; reservation no.: 613990168254 filed by Plaintiff Sylvana McGraw on 03/01/2023 are GRANTED.

Defendant the City of Los Angeles is ordered is ordered to provide verified code compliant responses to Plaintiff Sylvana McGraw’s Request For Admission Set One, and Request For Production Set One within 20 days notice of this order.

Defendant Andrew Taylor is ordered to provide verified code compliant responses without objections to Plaintiff Sylvana McGraw Special Interrogatories Set One, Request For Admission Set One, and Request For Production Set One within 20 days notice of this order.

The court imposes sanctions in the reduced amount of $920 on Defendant City of Los Angeles (for two motions) and $920 on Andrew Taylor (for two motions) payable to Plaintiff Slyvana McGraw upon notice of this order.

Plaintiff Sylvana McGraw (“Plaintiff”) moves for the following orders compelling (1) compelling Defendant City of Los Angeles (“City”) to provide written responses without objection and to produce all documents responsive to Plaintiff’s Request for Production Set One (“City RFP”), (2) compelling City and to provide written responses without objection Plaintiff’s Request For Admission Set One (“City RFA”), (3) compelling Defendant Andrew Taylor (“Taylor”) to respond to Request for Production, S1 (“Taylor RFP”), (4) compelling Taylor to respond to special interrogatories, set one (“Taylor Sp. Roggs”), and (5) compelling Taylor to respond to requests for admission, set one (“Taylor RFA”). Plaintiff also moves for sanctions in the amount of $2,060 for each motion. Plaintiff provide notice of who she seeks sanctions against. (Code Civ Proc., § 2023.040)

Discussion

Plaintiff validly served by mail on Defendants the Taylor RFPs, Taylor Sp. Roggs, City RFA, and City RFP. Plaintiff attaches the discovery to the respective declarations of attorney Jackie Kruger (“Kruger”) with proof of service showing service on December 28, 2022. The proof of service regarding Taylor RFAs is incomplete because it does not check the form service was provided in. However, Defendant does not object to service of the discovery and thus waived the objection. Accordingly, Defendant had until approximately February 1, 2023 to respond. As of the date of filing the motions, Defendant had not.

When a party fails to timely respond to validly served discovery, the serving party may move for an order to compel discovery responses and sanctions. (Code Civ. Proc., §§ 2030.290, subd. (b) [Interrogatories], 2031.300 [RFP], 2033.280 subd. (b) [RFA].) While sanctions are mandatory the court may waive them in the interest of justice where the non-party on motion to compel RFPs or interrogatories provides responses prior to the hearing. (Code Civ. Proc., §§ 2030.290, subd. (b) [Interrogatories], 2031.300 [RFP].) Regardless of a response prior to the hearing, it “is mandatory that the court impose a monetary sanction . . . [for] failure to serve a timely response to request for admission. . .” (Code Civ. Proc. § 2033.280 subd.(c).)

Defendants argue they could not respond to the discovery Plaintiff served, pro per, because to do so would constitute an improper communication with a represented person under Rule 4.2 of the rules of Professional Conduct. Defendants base this argument on Kruger’s unclear representation scope with Plaintiff.

“A party and an attorney may provide notice of their agreement to limited scope representation by serving and filing a Notice of Limited Scope Representation” (Rules of Ct., Rule 3.36, subd. (a).) Attorney Jackie Rose Kruger filed a notice of limited scope of representation for Plaintiff on October 27, 2022. She stated that she would represent Plaintiff at the hearing on 11/04/2022 and any continuation of that hearing. She concurrently filed an ex parte application requesting a continuation of the hearing on the motion for judgment on the pleadings scheduled for 11/04/2022 to allow her sufficient time to respond to the motion and to “propound one set of Discovery to defendants.” (Oct. 27, 2022, Ex Parte Application.) The court ruled on the motion for judgment on the pleadings on December 14, 2022. As such, Kruger had completed her limited scope representation assignment.

Once the notice is filed and until the limited representation attorney is substituted our or relieved, “papers in the case must be served on both the attorney providing the limited scope representation and the client.” (Rules of Ct., Rule 3.36, subd. (b).) Defendants argue that since Kruger filed no such document, she continues to represent Plaintiff and, as such, the rules of professional conduct prevented them from responding.

Rule 4.2 of the Rules of Professional Conduct states “[i]n representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person* the lawyer knows* to be presented by another lower in the matter, unless the lawyer has the consent of the other lawyer.” The comments to Rule 4.2 provide that “ ‘subject of the representation,’ ‘matter,’ and ‘person’ are not limited to a litigation context. This rule applies to communications with any person. . . who is represented by counsel concerning the matter to which the communication relates.” (Rules of Professional Conduct, Rule 4.2, comment [2].)

Plaintiff served her discovery upon Defendants on December 28, 2022, more than two weeks after the court’s ruling on the subject of Kruger’s limited representation. Thus, any prohibition in talking to Plaintiff based on the limited representation notice would be inapplicable to the served discovery. Rule 4.2 only prohibits communication “about the subject of the representation.” The served discovery, by virtue of the ruling on the motion for judgment on the pleadings, does not relate to Kruger’s representation. Accordingly Rule 4.2 did not apply to the discovery responses based on the notice of limited representation.

Additionally, when there is a limited scope representation, the parties are required to serve all documents upon the attorney and the client. (Rules of Ct., Rule 3.36, subd. (b).) Interpreting Rule 4.2 as prohibiting Defendants from serving discovery responses on the client is both illogical and inconsistent with rule 3.36, which required Defendants to serve documents on Plaintiff. Furthermore, rather than risk waiving their objections and to mitigate their concern, Defendants could have served their responses on Kruger, requested an extension, or requested a clarification of Kruger’s representation agreement with Plaintiff prior to responding. They did not.

Defendant further argues Kruger’s meet and confer letter and ongoing miscellaneous assistance add confusion regarding the scope of representation. The court agrees. A limited scope attorney who has completed their task, “may” request to be relieve as an attorney in the case. (Rules of Ct., Rule 3.36, subd. (c).) Here Kruger has filed no motion to be relieved and represents to the court that she has begun representing Plaintiff is miscellaneous items outside the scope of the motion for judgment on the pleadings. Accordingly, the court grants defendants’ request that Kruger clarify her representation arrangement in part. Kruger is required to file either a motion to be relived a counsel, a substitution of attorney, or a new notice of limited scope representation clarifying her agreement with Plaintiff. Nonetheless, this has no bearing on Defendants complete lack of response to Plaintiff’s discovery. Kruger’s meet and confer letter, while concededly muddying the waters of her scope of representation, occurred after Defendants already failed to respond to discovery.

Plaintiff validly served discovery. Defendant was obligated to provide responses under the code of civil procedure and did not. Accordingly, the court grants the motion to compel responses.

The court denies Defendants’ request for sanctions on the grounds of misuse of the discovery process. It is not clear that Kruger’s unsigned meet and confer letter regarding Plaintiff’s discovery was a bad faith litigation tactic meant to obfuscate her representation.

The court imposes sanctions in the reduced amount of $920 on City (for two motions) and $920 on Taylor (for two motions), all payable within 30 days.