Judge: Mark H. Epstein, Case: 21SMCV00320, Date: 2023-04-03 Tentative Ruling

Case Number: 21SMCV00320    Hearing Date: April 3, 2023    Dept: R

The court is inclined to GRANT the motion.  The responses are not fully code-compliant.  But that said, the court will deem the objections waived and the answer binding.  The court will grant an evidentiary sanction as follows: plaintiff will not be permitted to call any witness to testify on the subjects in the propounded discovery nor introduce any document on that subject other than witnesses and documents set forth in the discovery response.  If plaintiff believes that the verification is no longer accurate, plaintiff has 10 days to bring a motion to amend the response, otherwise, the court will conclusively presume that the plaintiff is satisfied that its verification remains true and correct even with all objections stricken. 

The fee request is also GRANTED.  The court believes that the responses were not code-compliant (not to mention the difficulty of getting a deposition).  Fees are appropriate.  They were denied for the motion for terminating sanctions because the court did not award terminating sanctions.  This motion is different.  The court is aware that defendants spent in excess of $11,000 on these two motions.  However, no bills were provided (they are not required) and there is no very good breakdown as to what fees were incurred for which motion.  Defendant seeks $5000 in sanctions, which means that defendant is seeking less than half the total for this motion.  While the court’s gut says that such is reasonable, the court will allow supplemental briefing as to the AMOUNT ONLY of fees related to this—as opposed to the other—sanctions motion.  That said, the court STRONGLY urges the parties to agree on a number.  If defendant is forced to file the supplemental brief, the fees sought could well be significantly higher than $5000, and defendant is not limited to $5000 in such a request.  (The court reads the $5000 request as having been made in part to eliminate the need for that kind of detail.)

Defendant’s supplemental brief is due in one week.  Any response by plaintiff is due one week after that.  The court will discuss a hearing date.  If the parties agree on the amount, then there will be no hearing.  An agreement by plaintiff as to the amount is NOT an agreement that a fee award was appropriate; only an agreement that IF an award is appropriate, the amount is appropriate.