Judge: Mark H. Epstein, Case: 21SMCV01968, Date: 2023-01-13 Tentative Ruling

Case Number: 21SMCV01968    Hearing Date: January 13, 2023    Dept: R

The motion for terminating sanctions is DENIED.  The motions to compel are GRANTED IN PART.  The request for sanctions is GRANTED, but only in the amount of $60 per motion.

The motion to compel further responses to RFP set 1 is unopposed.  Here, plaintiff provided responses after the court issued an order to do so on October 12, 2022.  Although defendant contends plaintiff has not complied, plaintiff did file some responses.  However, plaintiff’s responses are not sufficient.  First, even though not always stated in the form of an objection, some of the introductory text suggesting that plaintiff is not going to produce all documents as requested operates in the same manner as an objection, and that is not sufficient.  For example, in the response to request number 1, plaintiff states he will produce all documents as they pertain to the defendant.  That is in effect an objection that the RFP is overbroad.  That has been waived.  The same is true of RFPs 6-7.  As to RFP 2, there will be no redactions.  As to RFP 3, there is no statement regarding the inability to comply.  If plaintiff cannot comply, he will file a code-complaint response, under oath, pursuant to section 2031.230.  Plaintiff will serve fully compliant, verified responses without objection within 15 days of today.  The failure to do so could well result in terminating sanctions.  Plaintiff now has counsel; the court expects full compliance.  Plaintiff would be well advised not to have this discovery back before the court unless the responses are in fact adequate.

Defendant requests sanctions.  The problem is that the law is clear that monetary sanctions can only go to actual costs defendant incurred, which includes the filing fee and attorneys’ fees.  Because defendant is self-represented, there is only the filing fee.  The court will grant sanctions payable within 5 days for the filing fee only.  The court was tempted to deny the motion for failure to meet and confer, but will not.  Here, there is no legal requirement that the meet and confer be in person, and plaintiff’s counsel knows it.  Putting that kind of condition on the meeting is improper.

As to the third set of RFP’s, the RFA set 2, and the second set of SI, the motion is granted.  For the reasons set forth above, the court is not inclined to deny the motion or continue it to allow additional meet and confer.  Thus, the motion is GRANTED.  Sanctions are the same as above.

The court also notes in passing that the opposition was late.  That is not a good practice.  Plaintiff and his counsel need to present timely papers.  If there is a good reason why that cannot be done—for example, if counsel’s military obligations require that the schedule be adjusted—a timely and prompt request will do the trick.  Simply filing late is not enough, and counsel knows it.

Turning to the terminating sanctions motion, the court must deny it.  The court understands defendant’s theory that plaintiff violated the Discovery Act multiple times and in multiple ways.  However, defendant states the case too strongly.  Plaintiff did respond.  Not adequately, but he did not simply ignore the court’s order.  Terminating sanctions are a last resort.  While there exist cases where they are imposed quickly, more often they are reversed on the theory that a lesser sanction would have sufficed.  Here, plaintiff now has counsel.  The court will assume that counsel will comply with the Discovery Act going forward, as well as with all statutory time lines.  The court also reiterates that a meet and confer can be telephonic; it need not be face to face. 

Finally, the court makes the following observation.  Defendant has tried a number of times to throw the case out.  The court has rebuffed those efforts because the court concluded that defendant was not abiding the rules or was seeking relief to which the particular motion at hand did not entitle him.  To some degree, that is still the case.   For example, the extended discussion on the restraining order has no bearing on the issue before the court today.  But defendant has started to read the rulebook, which is why defendant’s motions to compel are largely granted.  Defendant has moved for summary adjudication.  The court has not reviewed those papers, but warns that if the papers are proper, they will be considered.  And if they are proper, a proper response will be needed to overcome the motion.  In other words, now that defendant is making more of an attempt to follow the applicable rules, his motions will be considered on their merits and, if meritorious on their face, they will be granted unless a persuasive opposition is filed.