Judge Lee S. Arian, Case Number: 23STCV00888, Date: 2023-10-25 Tentative Ruling

MOTIONS TO COMPEL RESPONSES TO DEMAND FOR INSPECTION AND PRODUCTION OF DOCUMENTS

On August 14, 2023, Plaintiffs, Roberto Miranda and Anabel Bautista, filed these motions[1] to compel Defendants, Marilin Ruiz and Mancia Hipolito, to provide responses to Plaintiff’s First Set of Form Interrogatories, Special Interrogatories, and Request for Production of Documents, and to deem Requests for Admission, Set One, admitted against Defendants. Plaintiff seeks sanctions against Defendant and his counsel of record.

Defense counsel filed an omnibus declaration, stating that counsel anticipates serving verified responses to Plaintiffs’ discovery requests by August 31, 2023. Defense counsel also requests all sanctions be imposed against defense counsel and not Defendants.

Plaintiff filed an omnibus reply, stating that verified responses were not received on August 31, 2023.

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).) Failure to timely serve responses waives objections to the requests. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a), 2033.280, 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 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.)¿

It is uncontested that Plaintiffs properly served Defendants with the at-issue discovery on May 3, 2023. It is further uncontested that Defendant have yet to serve verified responses. (See Gevorkyan Decls.) Plaintiffs are entitled to an order compelling Defendants’ verified, objection-free responses to Plaintiffs’ First Set of Form Interrogatories, Special Interrogatories, and Request for Production of Documents.¿ Plaintiffs are also entitled to an order deeming admitted Request for Admissions, Set One, against Defendants.[2]

Plaintiffs seek sanctions against Defendants and their counsel. Given that Defendants have not provided timely responses to Plaintiffs’ discovery, sanctions are warranted. Indeed, in the context of requests for admissions, sanctions are mandatory. (Code Civ. Proc., § 2033.280, subd. (c).) Defense counsel has requested all sanctions be imposed against Defense counsel only. Accordingly, the Court imposes sanctions against Defense counsel in the sum of $3,460, consisting of 5 hours of plaintiffs’ counsel’s hourly rate and $960 in filing fees.

The motions are granted. Defendants Marilin Ruiz and Mancia Hipolito, are ordered to provide verified, objection-free responses to Plaintiffs’ First Set of Form Interrogatories, Special Interrogatories, and Request for Production of Documents. Plaintiffs’ Requests for Admissions, Set One, are deemed admitted against Defendant.

The request for sanctions is granted. Defense counsel is ordered to pay sanctions in the amount of $3,460 to Plaintiffs, by and through their counsel.

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

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.

[1] The Court advanced Plaintiffs’ motions to compel scheduled for October 26, October 27, and October 30 to October 25, 2023. As such, this ruling concerns Plaintiffs’ sixteen (16) motions to compel.

[2] If, at the hearing, Defendants furnish proof of service of verified responses to the at-issue discovery, the Court will find Plaintiffs’ discovery motions to be moot and consider Plaintiffs’ request for sanctions only.