Judge: Michael P. Linfield, Case: 20STCV22550, Date: 2023-10-10 Tentative Ruling
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Case Number: 20STCV22550 Hearing Date: October 10, 2023 Dept: 34
SUBJECT: Motion to
Compel Judgment Debtor to Respond to Post Judgment Special Interrogatories (Set
No. 1) and for Sanctions
Moving Party: Judgment
Creditor Jack Benudiz
Resp. Party: None
SUBJECT: Motion to
Compel Judgment Debtor to Respond to Post Judgment Special Interrogatories (Set
No. 1) and for Sanctions
Moving Party: Judgment
Creditor Jack Benudiz
Resp. Party: None
SUBJECT: Motion to
Compel Judgment Debtor to Respond to Post Judgment Special Interrogatories (Set
No. 2) and for Sanctions
Moving Party: Judgment
Creditor Jack Benudiz
Resp. Party: None
SUBJECT: Application
and Order for Appearance and Examination — Enforcement of Judgment Against
Third Person
Moving Party: Judgment
Creditor Jack Benudiz
Resp. Party: None
TENTATIVE RULING:
The SROGs Motion, the First RPDs
Motion, and the Second RPDs Motion are GRANTED. Judgment Debtor shall provide
initial responses to the SROGs and RPDs within 14 days of the issuance of this
Order.
Monetary sanctions are AWARDED for Judgment
Creditor and against Judgment Debtor in the total amount of $1,174.31.
Judgment Creditor’s Application and Order for Appearance and
Examination — Enforcement of Judgment against Third Party Adi Siag is GRANTED.
At the time the Order is served on the Third Party, Judgment
Creditor shall make sure to follow the requirements set out in Code of Civil
Procedure, section 708.120, subdivision (f)
Judgment Creditor shall file proof of service no less than 72
hours before the next hearing.
BACKGROUND:
On June 15, 2020,
Plaintiff his Complaint against Defendant Jack Benudiz.
On August 6, 26, 27,
and 30, 2021, the Court held a bench trial in this matter. The Court found in
favor of Defendant and against Plaintiff on all causes of action.
On September 30,
2021, the Court entered Judgment in this matter.
On January 4, 2022,
the Court entered Amended Judgment in this matter.
On August 30, 2023,
Defendant (now “Judgment Creditor”) filed: (1) Motion to Compel Judgment Debtor to Respond to
Post Judgment Special Interrogatories (Set No. 1) and for Sanctions (“SROGs
Motion”); (2) Motion to Compel Judgment Debtor to Respond to Post Judgment
Special Interrogatories (Set No. 1) and for Sanctions (“First RPDs Motion”);
(3) Motion to Compel Judgment Debtor to Respond to Post Judgment Special
Interrogatories (Set No. 2) and for Sanctions (“Second RPDs Motion”); and (4)
Application and Order for Appearance and Examination — Enforcement of Judgment
Against Third Person (“Application”). The SROGs Motion, First RPDs Motion, and
Second RPDs Motion are against Plaintiff (now “Judgment Debtor”). The
Application is against Third Party Adi Siag.
No oppositions or
other responses have been filed to the post-judgment discovery motions or the
Application.
ANALYSIS:
I.
SROGs Motion,
First RPDs Motion, and Second RPDs Motion
A. Legal Standard
California Code of Civil Procedure requires a
response from the party to whom form interrogatories, special interrogatories,
and demand requests are propounded within 30 days after service of the
requests, unless the time is extended by agreement of the parties. (Code Civ.
Proc., §§ 2030.260, subd. (a), 2030.270, subd. (a), 2031.260, subd. (a),
2031.270, subd. (a).) If a party fails to serve timely responses, "the
party making the demand may move for an order compelling response to the
demand.” (Code Civ. Proc., § 2030.300, subd. (b).) By failing to respond, the
offending party waives any objection to the demand. (Code Civ. Proc., §
2030.290, subd. (a).)
For a motion to compel, all a propounding
party must show is that it properly served its discovery requests, that the
time to respond has expired, and that the party to whom the requests were
directed failed to provide a timely response. (See Leach v. Super. Ct.
(1980) 111 Cal.App.3d 902, 905, 906.) Indeed, "[o]nce [a party] 'fail[ed]
to serve a timely response,' the trial court had authority to grant [opposing
party's] motion to compel responses." (Sinaiko Healthcare Counseling,
Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)
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 motions for
interrogatories or requests for production, unless the Court finds that the one
subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust. If a party then fails
to obey an order compelling answers, the court may make those orders that are
just, including the imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section 2023.010). In
lieu of or in addition to that sanction, the court may impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc.,
§§ 2030.290, subd. (c), 2031.300, subd. (c).)
B. Discussion
Judgment Creditor moves the Court to
compel Judgment Debtor to serve responses to the special interrogatories
(“SROGs”) and requests for production of documents (“RPDs”) that Judgment
Creditor propounded on July 9, 2022, as well as the additional RPDs that
Judgment Creditor propounded on April 24, 2023. (SROGs Motion, pp. 3:15–24,
6:2–5, and Exh. 1, p. 5; First RPDs Motion, pp. 3:15–25, 6:2–5, and Exh. 1, p.
5; Second RPDs Motion, pp. 3:15–24, 6:2–5, and Exh. 1, p. 5.) According to
Judgment Creditor’s Counsel, Judgment Debtor has not responded to these
post-judgment discovery requests. (SROGs Motion, Decl. Wilton, ¶¶ 7, 9; First
RPDs Motion, Decl. Wilton, ¶¶ 7, 9; Second RPDs Motion, Decl. Wilton, ¶¶ 7, 9.)
There is no evidence to indicate that
the Judgment Debtor responded to these discovery requests.
The Court
GRANTS the SROGs Motion, the First RPDs Motion, and the Second RPDs Motion.
Judgment Debtor shall provide initial responses to the SROGs and RPDs within 14
days of the issuance of this Order.
C.
Sanctions
Judgment Creditor
requests monetary sanctions against Judgment Debtor. (SROGs Motion, p. 6:2–5;
First RPDs Motion, p. 6:2–5; Second RPDs Motion, p. 6:2–5.)
Judgment Debtor
failed to serve timely responses to the SROGs and RPDs. The Court does not have
evidence before it that would indicate there is substantial justification or
other circumstances that would make the imposition of a sanction unjust. Thus,
the Court must impose a monetary sanction on Judgment Debtor. (Code Civ.
Proc., §§ 2030.290, subd. (c).)
Judgment
Creditor’s Counsel declares: (1) that their hourly rate is $475.00 per hour;
(2) that they spent 3.5 hours for each of the three post-judgment discovery
motions; and (3) that they incurred $74.77 in costs for each of the
post-judgment discovery motions. (SROGs Motion, p. 8; First RPDs Motion, p. 8;
Second RPDs Motion, p. 8.)
The
Court finds that the hourly rate and the costs incurred are reasonable.
However, the hours incurred appear to be excessive (given the simplicity of the
issues) and duplicative (given that the three motions are nearly identical).
The
Court will allow monetary sanctions for a total of two hours of work at $475.00
per hour, plus costs.
The Court AWARDS monetary sanctions for
Judgment Creditor and against Judgment Debtor in the total amount of $1,174.31.
D. Conclusion
The SROGs Motion, the First RPDs
Motion, and the Second RPDs Motion are GRANTED. Judgment Debtor shall provide
initial responses to the SROGs and RPDs within 14 days of the issuance of this
Order.
Monetary sanctions are AWARDED for Judgment
Creditor and against Judgment Debtor in the total amount of $1,174.31.
II.
Application and Order for Appearance and Examination
A.
Legal
Standard
“Upon ex parte application by a judgment creditor who has a money judgment
and proof by the judgment creditor by affidavit or otherwise to the
satisfaction of the proper court that a third person has possession or control
of property in which the judgment debtor has an interest or is indebted to the
judgment debtor in an amount exceeding two hundred fifty dollars ($250), the
court shall make an order directing the third person to appear before the
court, or before a referee appointed by the court, at a time and place specified
in the order, to answer concerning such property or debt. The affidavit in
support of the judgment creditor’s application may be based on the affiant’s
information and belief.” (Code Civ. Proc., § 708.120, subd. (a).)
“Not less than 10 days prior to the date set for the
examination, a copy of the order shall be:
1. “Served
personally on the third person.
2. “Served
personally or by mail on the judgment debtor.”
(Code Civ. Proc., § 708.120, subd. (b)(1)–(2).)
“An order made pursuant to subdivision (a) shall
contain the following statements in 14-point boldface type if printed or in
capital letters if typed:
1. “‘NOTICE
TO PERSON SERVED. If you fail to appear at the time and place specified in this
order, you may be subject to arrest and punishment for contempt of court and
the court may make an order requiring you to pay the reasonable attorney’s fees
incurred by the judgment creditor in this proceeding.’
2. “‘NOTICE
TO JUDGMENT DEBTOR. The person in whose favor the judgment was entered in this
action claims that the person to be examined pursuant to this order has
possession or control of property which is yours or owes you a debt. This
property or debt is as follows: (Description of property or debt).
“If you
claim that all or any portion of this property or debt is exempt from
enforcement of the money judgment, you must file your exemption claim in
writing with the court and personally serve a copy on the judgment creditor not
later than three days before the date set for the examination. You must appear
at the time and place set for this examination to establish your claim of
exemption or your exemption may be waived.’”
(Code Civ. Proc., § 708.120, subd. (e)(1)–(2).)
“An order made pursuant to subdivision (a) is not effective
unless, at the time it is served on the third person, the person serving the
order tenders to the third person fees for the mileage necessary to be traveled
from the third person’s residence to the place of examination. The mileage fees
shall be in the same amount generally provided for witnesses when legally
required to attend civil proceedings in the court where the examination
proceeding is to be conducted.” (Code Civ. Proc., § 708.120, subd. (f).)
B. Discussion
Judgment Creditor applies for an
order for Third Party Adi Siag to appear for examination. (Application, Items
2.b., 4, 5.b.) The Application form used is Judicial Council Form
AT-138/EJ-125, and it includes the statutorily-required notices. (Code Civ. Proc.,
§ 708.120, subd. (e)(1)–(2).)
Judgment Creditor declares that the
Third Party to be examined has possession or control of two bank accounts which
are wholly owned and controlled by Judgment Debtor and Third Party (who is
Judgment Debtor’s wife). (Application, Decl., ¶ 2.d.)
Judgment Creditor has made a satisfactory showing that the
Third Party has control of property in which the Judgment Debtor has an interest or is
indebted to the judgment debtor in an amount exceeding two hundred fifty
dollars ($250).
The Court GRANTS Judgment Creditor’s Application and Order
for Appearance and Examination — Enforcement of Judgment against Third Person
Adi Siag.
C. Conclusion
Judgment Creditor’s Application and Order for Appearance and
Examination — Enforcement of Judgment against Third Party Adi Siag is GRANTED.
At the time the Order is served on the Third Party, Judgment
Creditor shall make sure to follow the requirements set out in Code of Civil
Procedure, section 708.120, subdivision (f).
Judgment Creditor shall file proof of service no less than 72
hours before the next hearing.