Judge: Mark C. Kim, Case: 21LBCV00632, Date: 2022-12-08 Tentative Ruling
Case Number: 21LBCV00632 Hearing Date: December 8, 2022 Dept: S27
The sole remaining issue on these
two motions to compel further responses is whether to impose sanctions. The motions are substantively moot. The Court will therefore provide a timeline,
based on both parties’ evidence, to address whether or not sanctions are
appropriate.
·
6/28/22: Defendants
propound subject FROGs and RPDs
·
8/12/22: After
receiving an extension of time to respond, Plaintiffs serve responses. With respect to the FROGs, Plaintiffs served
solely objections. With respect to the
RPDs, Plaintiffs indicated an intention to provide documents, but did not
provide any documents.
·
8/23/22: Defendants
send a meet and confer letter seeking a further response to the FROG and
production of documents in connection with the RPDs by 9/01/22.
·
9/07/22: Defendants
request a response, Plaintiffs respond and seek an extension through 9/23/22 to
supplement and produce, Defendants agree.
·
9/21/22: Plaintiffs
seek an extension through 9/30/22, and Defendants agree.
·
10/03/22: Defendants
ask for the information.
·
10/04/22: Counsel
talk on the phone and information and documents are promised by 10/07/22.
·
10/11/22: Meet
and confer letter asking for documents by 10/13/22 or a motion will be filed.
·
10/14/22: Final
meet and confer letter.
·
10/31/22: Defendants
file this motion.
·
10/31/22: Plaintiffs
sent an email explaining why responses had not been served and promising to
provide them; this email crosses with Defendants’ motion.
·
11/01/22: Plaintiffs
provide documents.
·
11/07/22: Plaintiffs
serve responses.
Plaintiffs’ attorney, in opposition
to the motion, explains that the fault of the failure to timely respond was his
and his alone, and not that of his clients.
He explains that he was involved in many litigation and family-related
matters when the responses were due, and was unable to timely respond. The Court has reviewed Plaintiffs’ attorney’s
declaration. It appears Plaintiffs’
attorney has over-committed himself.
While this is unfortunate, it does require communication in order to
avoid sanctions. Defense Counsel bent
over backward extending the time to respond, and Defense Counsel’s last two
communications, more than two weeks prior to actually filing the motion, were
met with radio silence. Thus,
Plaintiffs’ attorney’s over-committed schedule and failure to communicate
necessitated the preparation and filing of these motions, which were detailed
and in depth. Sanctions are appropriate.
Despite the fact that sanctions are
appropriate, there are two problems with the sanctions request. First, CCP §2023.040 requires the notice of
motion to identify every person, party, and attorney against whom sanctions are
sought. Defendants, in their notices of
motion, seek sanctions against “Plaintiffs,” but not against their attorney of
record. The Court is satisfied with the
showing, in Plaintiffs’ attorney’s declaration, that he is solely responsible
for the failure to timely respond. The
Court cannot impose sanctions on Plaintiffs’ attorney because the notice of
motion did not seek sanctions against him.
The Court also cannot impose sanctions against Plaintiffs personally, as
they showed substantial justification (their lack of participation in the
discovery abuse) for their acts.
Second, the Court finds the amount
of sanctions sought to be excessive. Defendants
seek sanctions in the amounts of $9245 per motion. Defendants base their request on the Declarations
of Counsel, Kirk A. Hornbeck and Phillip J. Eskenazi. It is not clear if the amounts are being
redundantly billed in connection with each motion, as the amount billed is
exactly the same for both motions. The
Court notes that billing rates of $380/hour, $580/hour, and $850/hour are claimed
in the declarations, which is very high.
The Court finds the motions to be
substantively moot, and declines to impose sanctions based on the failure to
seek sanctions against Plaintiffs’ attorney.
Defendant is ordered to give
notice.