Judge Lee S. Arian, Case Number: 22STCV09405, Date: 2024-01-24 Tentative Ruling

This is an action arising from a motor vehicle accident which occurred on December 13, 2020. On March 17, 2022, Plaintiff Eduardo Salumbides Veran (“Plaintiff”) filed a complaint against Defendants Marcos Toscano (“Defendant”) and Does 1 through 25, alleging a single cause of action for negligence.

On March 30, 2022, Plaintiff filed a proof of service of summons indicating that service of the summons and complaint on Defendant occurred on March 28, 2022, by personal service.

On June 3, 2022, Defendant filed and served an answer to the complaint. The answer identifies Defendant’s attorney as Evan K. Guetter, Esq. of Chavez Legal Group.[1]

On June 14, 2022, Plaintiff filed a Declaration of Non-Service indicating unsuccessful attempts to serve Defendant with service of process in April, May, and June of 2022.[2]

On May 16, 2023, Plaintiff filed and served a motion for an order to compel Defendant’s responses to Set One of Plaintiff’s Form Interrogatories, Special Interrogatories, and Request for Production of Documents (the “Compel Responses Motion”). The Compel Responses Motion seeks monetary sanctions against Defendant’s and Defendant’s attorney of record in the amount of $1,600.00.

Also, on May 16, 2023, Plaintiff filed and served a motion for an order deeming admitted the truth of facts and genuineness of documents in Set One of Plaintiff’s Request for Admissions and for monetary sanctions against Defendant and Defendant’s attorney of record in the amount of $1,600.00 (the “RFA Motion”) (collectively, the “Motions”).

Although seeking three separate forms of relief pursuant to the Compel Responses Motion, Plaintiff filed a combined motion to compel responses to form interrogatories, special interrogatories, and requests for production of documents and thus only paid one filing fee. The Court will still assess the Compel Responses Motion.

The Court notes that the Motions are unopposed. On July 18, 2023, a Notice of Change of Lead Counsel was filed and served by Lauren Diane Fierro, Esq., indicating that Lauren Dianne Fierro, Esq. of Martinez, Dieterich & Zarcone Legal Group is designated as lead counsel in this matter. Such notice states “that effective immediately, all notices, pleadings, settings, and other matter . . . should be directed to Lauren Diane Fierro, Esq.”

On July 20, 2023, the Court entered a stipulation and order continuing trial in this action from September 14, 2023 to March 6, 2024. The stipulation and order provides that all discovery and motion cut-off dates will be based upon the new trial date.

The Motions were filed prior to the filing of the Notice of Change of Lead Counsel. According to the proofs of service as to the Motions, Hooman Hemati, Esq. of the Chavez Legal Group was served with the Motions via mail and electronic service. Also, service of the Motions was electronically served upon “legal-mail@fredloya.com,” which the answer of Defendant identifies as the electronic service address for Chavez Legal Group. (See Answer, 1:1-4.) While there is a new lead counsel, Chavez Legal Group has neither disassociated nor substituted out of this action, and the Court finds that service of the Motions was provided to Defendant’s counsel as Chavez Legal Group is still counsel for Defendant in this action. Thus, the Court finds that the Motions were properly served on Defendant.

“Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” (Code Civ. Proc. § 2030.260, subd. (a).) “If the party to whom interrogatories are directed fails to serve a timely response . . . [t]he party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product.” (Code Civ. Proc., § 2030.290, subd. (a).) “The party propounding interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290, subd. (b).)

“Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action.” (Code Civ. Proc., § 2031.260, subd. (a).) The party making the demand may move for an order compelling response to the demand if a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it. (Code Civ. Proc., § 2031.300, subd. (b).)

Code Civ. Proc. § 2023.010(d) provides that a misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. Code Civ. Proc. § 2023.010(h) states that a misuse of the discovery process includes making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery. A court may impose a monetary sanction against a party engaging in the misuse of the discovery process or any attorney advising such conduct under Code Civ. Proc. § 2023.030(a). A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.)

Plaintiff’s counsel, Angela Lee (“Lee”), in support of the Compel Responses Motion, declares that: (1) Form Interrogatories, Set One; (2) Request for Production of Documents, Set One; (3) Special Interrogatories, Set One; and (4) Request for Admissions, Set One, were served on Defendant on December 16, 2022, and no responses have been received to any of the propounded discovery. (Lee Decl., ¶¶ 3-6 and Exhibits 1-4.)

As to monetary sanctions, counsel declares that she has spent 2 hours drafting the Compel Responses Motion and expects to spend 1 hour preparing a reply, as well as appearing at the hearing on the Compel Responses Motion. (Lee Decl., ¶ 8.) Counsel’s office bills at $400.00 per hour and Plaintiff requests monetary sanctions in the amount of $1,400.00 against Defendant and Defendant’s attorney of record. (Lee Decl., ¶ 8.)

Initially, the Court notes that the declarations in support of the Motions are essentially identical and the exhibits attached to counsel’s declarations in support of each of the Motions overlap. Plaintiff requests the same amount of monetary sanctions pursuant to each of the Motions.

The Court, however, finds that the Motions request for monetary sanctions against Defendant’s counsel of record is improper as Plaintiff has failed to identify against which attorney the sanction is sought. (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought”].) Thus, the Court will impose sanctions solely against Defendant as he is the only properly identified party against whom sanctions are requested in the notice of motion.

Since the Compel Responses Motion is unopposed, the Court awards Plaintiff sanctions in the reasonable amount of $800.00 against Defendant as to the Compel Responses Motion.

The Court references its discussion from above as to the Compel Responses Motion and incorporates it herein.

The Court GRANTS the RFA Motion as it is unopposed. (Sexton v. Superior Court, supra, 58 Cal.App.4th 1403, 1410.)

Defendant is ordered to serve verified, complete, and code-compliant responses, without objections, to Set One of Plaintiff’s Form Interrogatories, Special Interrogatories, and Request for Production of Documents within 30 days of the date of notice of this order.

Plaintiff’s request for monetary sanctions is GRANTED IN PART. Defendant is ORDERED to pay monetary sanctions to Plaintiff in the total amount of $1000.00 within 30 days of the date of notice of this order. This amount represents total monetary sanctions as to the Compel Responses Motion and the RFA Motion.

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. Lee S. Arian

Judge of the Superior Court

[1] The Court notes that Defendant’s answer to the complaint is not signed by counsel.

[2] The Court finds that there are inconsistences based on the Proof of Service of Summons and Declaration of Non-Service as to whether Defendant was served. Both documents were signed under the penalty of perjury by registered process server, Kevin Hardin. The Court assumes that Defendant may have waived any issues with service or that Defendant was, in fact, personally served given that Defendant filed an answer and did not file a motion to quash service of summons. Such issues, however, are not relevant to the Motions.