Judge Lee W. Tsao, Case 20STCV06925 2023-01-10 Tentative Ruling

Judge: Lee W. Tsao, Case: 20STCV06925, Date: 2023-01-10 Tentative Ruling

Case Number: 20STCV06925 Hearing Date: January 10, 2023 Dept: C

JANE DOE v. MIGUEL PANTOJA, ET AL.

CASE NO.: 20STCV06925

HEARING: 01/10/2023

TENTATIVE ORDER

Plaintiff’s Motion to Compel Defendants to Respond to Plaintiff’s Special Interrogatories, Set Four and Request for Monetary and Evidentiary Sanctions is GRANTED in part and DENIED in part.

The Court GRANTS Plaintiff’s request to compel the Defendants’ further responses to Plaintiff’s Special Interrogatories, Set Four.

1. Defendant Miguel Pantoja is ordered to serve, without objections, further responses to Plaintiff’s Special Interrogatories, Set Four, propounded on him, Nos. 29, 31, 32, 34, and 35, within 10 days of this ruling.

2. Defendant Healing Therapy Spa, Inc. is ordered to serve, without objections, further responses to Plaintiff’s Special Interrogatories, Set Four, propounded on it, Nos. 94, 95, 96, 98, and 99, within 10 days of this ruling.

The Court GRANTS Plaintiff’s request to impose monetary sanctions against the Defendants. Each defendant is ordered to pay $2,500 to Plaintiff as sanctions.

The Court DENIES Plaintiff’s request to impose evidentiary sanctions against the Defendants.

Moving Party to give Notice.

Background

On February 20, 2020, Plaintiff Jane Doe (“Plaintiff”) filed this action against Defendants Miguel Pantoja (“Pantoja”) and Healing Therapy Spa, Inc. (“Healing Therapy”) (collectively, “Defendants”), asserting causes of action for (1) gender violence, (2) sexual battery, (3) assault, (4) battery, (5) intentional infliction of emotional distress, and (6) negligence.

The Complaint alleges the following. On or about February 23, 2018, Plaintiff went to get a massage at Healing Therapy. Defendant Pantoja (her masseur) raped her during the massage.

On December 21, 2022, Plaintiff filed the instant motion to compel the Defendants’ further response to her Special Interrogatories, Set Four.

The hearing for the motion was originally set for April 27, 2023. On December 30, 2022, the Court granted Plaintiffs’ ex parte application to advance the hearing date for the motion. The Court set the hearing for January 10, 2023, and ordered all oppositions to be electronically filed and served by January 5 and replies by January 6.

On January 5, 2023, Defendants filed their opposition.

On January 6, 2023, Plaintiff filed her reply.

Jury trial is set for February 9, 2023.

Legal Standard

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: ¶ (1) An answer to a particular interrogatory is evasive or incomplete. ¶ (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. ¶ (3) An objection to an interrogatory is without merit or too general.” (CCP § 2030.300(a).)

The motion to compel further responses to interrogatories must be accompanied by a meet and confer declaration (CCP § 2030.300(b)(1)) and, unless ordered otherwise by the court, a separate statement (Cal. Rules of Court, rule 3.1345(a)(2)).

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (CCP § 2030.300(c).)

Discussion

Timeliness

On November 3, 2022, Plaintiff served each defendant her Special Interrogatories, Set Four (“SROGS”). (Declaration of Jessica Koenig, filed on December 21, 2022 (“Koenig Decl.”), ¶ 2; Exs. A and B – copies of the SROGS propounded on the Defendants.) Healing Therapy served its responses to the interrogatories at issue on November 30, 2022, while Pantoja served his on December 1, 2022. (Koenig Decl., ¶¶ 3, 4; Exs C and D – copies of the responses.)

The Court finds the motion timely as it was filed on December 21, 2022, within 45 days of the service of the responses.

Meet and Confer

The Court finds that the Plaintiff has satisfied the meet and confer requirement by sending defense counsel a meet and confer letter. (Koenig Decl., ¶ 5; Supplemental Declaration of Jessica Koenig, filed on January 6, 2022, ¶ 5; Exs. H and I.)

Interrogatories at Issue

Plaintiff’s Complaint seeks punitive among other damages. (Compl., ¶ 2.)

In 1980, the California legislature enacted Civil Code section 3295(c) “in order to protect defendants from being subjected to pretrial discovery into their financial affairs until a plaintiff establishes the likelihood he will prevail on his punitive damages claim.” (Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 757.)

The statute “allows the trial court, ‘at any time,’ to enter an order permitting the discovery of a defendant’s profits and/or financial condition, if the plaintiff has established that there is a substantial probability that he or she can prevail on a claim upon which an award of punitive damages can be based.” (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 609 [italics removed].)

However, the statute also states, even if the above conditions are unsatisfied (i.e., the plaintiff has not yet established a substantial probability of prevailing on her punitive damages claim and the court has not yet entered an order permitting pre-trial discovery of the defendant’s profits and financial condition):

[T]he plaintiff may subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition …, and the defendant may be required to identify [1] documents in the defendant’s possession which are relevant and admissible for that purpose and [2] the witnesses … who would be most competent to testify to those facts.

(Civ. Code, § 3295(c) [emphasis added].)

Here, the SROGS propounded on Pantoja that are at issue asked the defendant to identify all individuals competent to testify to the defendant’s financial condition (No. 29) and all documents evidencing, depicting, describing, summarizing, and pertaining to the defendant’s net worth (No. 31), financial statements (No. 32), assets (No. 34), and entities he has or had ownership interest (No. 35) from January 1, 2018, to the date of the interrogatories. (Separate Statement, filed on December 21, 2022 (“Separate Statement”), pp. 3:19-9:6.)

Similarly, the SROGS propounded on Healing Therapy that are at issue asked the defendant to identify all documents evidencing, depicting, describing, summarizing, and pertaining to its net worth (No. 94), financial condition (No. 95), financial statements (No. 96), assets (No. 98) and the entities it has or had ownership interest (No. 99) from January 1, 2018, to the date of the interrogatories. (Separate Statement, p. 11:12-16:6.)

Defendants objected to all interrogatories “on the grounds that [they] seek documents protected from disclosure by Article 1, Section 1 of the California Constitution, and statutory and common law right of Privacy. Defendant[s] also object[ed] on the grounds that [the] discovery seek[] information that is neither relevant to the subject matter of this action and not calculated to lead to the discovery of any admissible evidence.” (See Separate Statement.)

As noted in Plaintiff’s reply, Defendants (in their opposition) do not attempt to justify their objections or dispute that Plaintiff is entitled to the information at issue.

The Court finds that the SROGS seek relevant information because Plaintiff seeks punitive damages and “in an action for punitive damages, evidence of a defendant’s financial condition is admissible at trial for determining the amount that it is proper to award.” (Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 548.)

In addition, even if the Defendants have a right of privacy in their financial conditions, Plaintiff’s SROGS comply with Section 3295(c) by asking the Defendants to identify (not produce) (1) the documents in their possession which are relevant and admissible for that purpose and (2) the witnesses who would be most competent to testify to those facts.

Therefore, Defendants’ objections to the SROGS are overruled.

Accordingly, Plaintiff’s request to compel further responses to the interrogatories at issue is GRANTED.

Sanctions

A. Monetary Sanctions

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.” (CCP § 2030.300(d).)

Here, Defendants have failed to explain in their opposition why sanctions would be unjust.

Code of Civil Procedure section 2023.040 requires the following: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

Here, Plaintiff seeks sanctions of $5,000 against the Defendants and their counsel. (Notice of Motion, p. 2:7-8.) However, it is unclear how Plaintiff arrived at that amount. Plaintiff’s counsel’s declaration avers that Plaintiff incurred (a) $2,790 in attorneys’ fees for 6 hours counsel spent on the moving papers, at a billing rate of $465 per hour, and (b) $4,620 her fellow associate (Malak Cherkaoui) for 11 hours spent on the moving papers, at a billing rate of $420 per hour, thus a total of $7,410. (Koenig Decl., ¶¶ 9, 10.) In addition, counsel anticipated that Plaintiff will incur an additional $3,600 in fees, for the 8 hours counsel and her associate spent drafting the reply, preparing for oral argument, and attending the hearing. (Koenig Decl., ¶ 12.) In any event, the Court finds sanctions above $5,000 excessive.

Accordingly, the Court GRANTS Plaintiff’s request for monetary sanctions, but only in the amount of $5,000 ($2,500 per defendant).

B. Evidentiary Sanctions

In addition to monetary sanctions, Plaintiff moves for evidentiary sanctions order finding that Plaintiff “has already met her burden in establishing Defendants’ financial conditions for purposes of seeking punitive damages, and that Defendants be precluded from presenting any evidence at trial to put their financial conditions at issue, including offering any evidence of financial hardship or documents that Defendants have refused to furnish throughout the litigation.” (Notice of Motion, p. 2:11-14.)

The Court “may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (CCP § 2023.030(c).)

The Court finds that evidentiary sanctions are not warranted at this time given that this ruling is the first order concerning the interrogatories at issue.

Accordingly, the Court DENIES Plaintiff’s request to issue evidentiary sanctions against the Defendants.

Conclusion

Plaintiff Jane Doe’s Motion to Compel Defendants to Respond to Plaintiff’s Special Interrogatories, Set Four and Request for Monetary and Evidentiary Sanctions is GRANTED in part and DENIED in part.

The Court GRANTS Plaintiff’s request to compel the Defendants’ further responses to Plaintiff’s Special Interrogatories, Set Four.

The Court GRANTS Plaintiff’s request to impose monetary sanctions against the Defendants. Each defendant is ordered to pay $2,500 to Plaintiff as sanctions.

The Court DENIES Plaintiff’s request to impose evidentiary sanctions against the Defendants.