Judge: Mark H. Epstein, Case: 22SMCV02782, Date: 2023-10-06 Tentative Ruling

Case Number: 22SMCV02782    Hearing Date: February 14, 2024    Dept: I

The motion to compel is GRANTED.  The motion for sanctions is GRANTED as against defendant but not defense counsel. 

Plaintiff seeks an order compelling enforcement of the court’s prior order.  Specifically, on October 6, 2023, the court ordered that defendant provide verified and code-compliant responses to discovery.  However, defendant did not provide those responses in the time the court allotted.  Defendant claims that she retained new counsel in September 2023.  New counsel, in an untimely opposition, seems to claim that only prior counsel was aware of the court’s order and that new counsel (and defendant) just did not know of it.  The reply disposes of that argument, showing conclusively that defendant’s new counsel was informed of the court order at least three times, not including service of the Notice of Ruling.  It could be that new counsel did not read the incoming emails, but that is hardly plaintiff’s problem.  It is also of great concern that even as of now, the court is unaware of any code-compliant responses having been served.  Plainly new counsel has been aware of the order for some time now—even if the only notice was the notice of the instant motion filed on January 3, 2024.  The “New Sheriff In Town” defense is not convincing.

The motion is therefore GRANTED.  Defendant is ordered to comply with the court’s order and provide verified, code-compliant responses without objection other than privilege within 3 court days of today.  That time frame is intentionally very short.

Plaintiff seeks monetary sanctions.  The court has reviewed the request and finds the request to be appropriate, especially in light of what appears to be certain less-than forthcoming statements in the opposition.  But that said, the court is not sure that it can find that counsel’s position is sanctionable as opposed to that of defendant.  Sanctions of $3735 are awarded against defendant and are payable within 30 days.  The court notes that it was essentially a gift that plaintiff did not request non-monetary sanctions.  Defendant and defense counsel should view it as an act of good will by plaintiff.

The court fervently hopes that defense counsel’s future actions will comport with the opposition papers.