Judge Ralph C. Hofer, Case 20STCV36297 2022-08-05 Tentative Ruling

Defendant Brookfield Property Retail has filed oppositions to the motions, indicating that further verified responses to each of the discovery requests were served on July 25, 2022, since the filing of the motions on May 26, 2022. Defendant’s counsel’s declaration indicates that, “I provided Plaintiff’s counsel the responses to Form Interrogatories Set Three, and Special Interrogatories, Set Three, on July 25, 2022.” [Gordon Decl., para. 8, Ex. A; See also Gordon Decl. in opposition to motion concerning Requests for Production of Documents, para. 8, Ex. A]. The motions are accordingly moot.

The opposition also points out that plaintiff has improperly filed one motion to compel responses to Form Interrogatories, Set Three and Special Interrogatories, Set Three, when the motion is really two motions, and two motions should have been filed, with separate reservations and filing fees, to avoid calendar congestion and jumping ahead of other discovery motions, and depriving the court of filing fees. Plaintiff in reply seems to argue that plaintiff properly combined the motions for the convenience of the court, which argument this court rejects.

The court will expect the additional filing fees of $60 to be paid for the additional motion to be considered this date, and advises plaintiff, for the second time, that in the future separate motions with separate filing fees and reservation dates must be filed. The court in the future may refuse to consider at all improperly filed motion.

With respect to interrogatories, under CCP § 2030.290(c), “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” A similar provision applies to document demands. See CCP § 2031.300(c).

Under CCP § 2023.010, misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery;” and “(f) Making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

Defendant in the oppositions argues that its former counsel left the firm and current counsel worked with defendant and plaintiff’s counsel to get the responses to plaintiff’s counsel before the hearing. However, the responses were not provided within the deadline, which was extended at least twice to accommodate defendant and counsel, and current counsel does not provide justification for that delay, and this situation appears to be the standard circumstance where the cost to have brought the motions should be shifted to the party which caused the motions to have to be filed. Sanctions will be awarded.

The sanctions sought are $3,200 for the interrogatories motion and $465 for the motion in connection with document demands. The opposition argues that the motions are repetitive of each other, but it appears that plaintiff has accounted for this by requesting a reduced amount in connection with the documents motion. The fees for the simple motion to compel interrogatories appear a bit high, and plaintiff requests 4 hours at $400 per hour to prepare a reply, when the motion has been rendered moot, and the reply is quite brief and did not likely take long to prepare. The sanctions are adjusted accordingly as follows: 4.5 hours attorney time with no attorney time for a reply [No opposition was filed] and only ½ hour attorney time for a remote appearance for total attorneys’ fees of $1,800.00.

The opposition indicates that this motion is also moot, as counsel as of July 25, 2022 requested a check for the total sanctions amount of $4,400 which will be issued to plaintiff’s counsel. The declaration in support of the opposition states, “Once I became aware that sanctions had yet to be paid on this matter, I worked diligently to ensure that they were paid in a timely manner.” [Gordon Decl., para. 6]. There is nothing about requesting a check, or making sure funds are forwarded to plaintiff’s counsel. The reply indicates no check had yet been received.

In any case, this motion has no statutory basis, as it is directed only to the payment of previously ordered monetary sanctions, not to a failure to provide court ordered discovery, which previously included an order to serve further responses to interrogatories and document demands.

Under CCP § 2030.300(e), if a party “fails to obey” a court order compelling further responses to interrogatories, “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” Under section 2023.010, “misuse of the discovery process” includes “(g) Disobeying a court order to provide discovery.” (emphasis added).

It has long been the rule that a trial court may not issue a terminating, issue or evidence sanction based solely on the failure to pay a monetary sanction ordered in connection with a discovery motion. The Second District in Newland v Superior Court (1995) 40 Cal.App.4th 608, reversed a trial court’s entry of default after striking an answer for a party’s failure to timely pay discovery sanctions, clearly holding “a terminating sanction issued solely because of the failure to pay a monetary sanction is never justified.” Newland, at 615.

The Second District noted that such a sanction is not appropriately designed to encourage compliance with discovery obligations, raising questions of due process, and also observed that further punishment for failure to pay sanctions is unnecessary, observing:

“Nor is a terminating sanction necessary in order to enforce a monetary order. Weil and Brown observe that many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 3 (The Rutter Group 1994) PP 9:344.21, 9:344.22, p. 9(1)-92.) These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction. (See § 680.230, 680.270, 699.510, subd. (a); Jones v. Otero, supra, 156 Cal. App. 3d at p. 759.) Unawareness of this remedy may explain why terminating sanctions are often sought when monetary sanctions are unpaid.”

Here, the motion involves only the failure to timely pay monetary sanctions, when the court order is already fully enforceable, and the motion therefore is denied. In addition, since the motion was unnecessary, has no statutory basis, and must be denied, plaintiff will not be awarded further monetary sanctions.

Plaintiff has filed a motion to compel defendant Brookfield to comply with its previously served response to Plaintiff’s Request for Production of Documents, pursuant to which it agreed to produce responsive documents. There is no opposition to this motion in the file.

Plaintiff argues that defendant has failed to produce legible documents responsive to the Request and that in February of 2022, defendant served documents on behalf of two separate defendants, Brookfield and Goodtreats, without specifying which documents belong to which defendant.

Evidently, the parties through meet and confer have agreed that the documents would be reproduced so that the documents would be bates stamped to indicate which documents belong to which defendant. [Fourazan Decl., paras. 23, 29]. That production has not been made, and the motion seeks an order compelling defendant to comply with its response to the Request for Production by specifying which documents are produced by which defendant.

“If a party filing a response to a demand for inspection, copying…thereafter fails to permit the inspection, copying…in accordance with that party’s statement of compliance, the demanding party by move for an order compelling compliance.”

There has been no timely opposition filed to this motion, and therefore the plaintiff here is entitled to an order compelling defendant to comply with its response by indicating which documents produced were produced by the responding defendant. Defendant appears to have agreed that this should and would be done. The court accordingly grants the unopposed motion and orders compliance as requested.

This posture leaves the issue of monetary sanctions. CCP § 2031.320 (b) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Under CCP § 2023.010, misuse of the discovery process includes, “(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Here, there is no opposition, so defendant has failed to show substantial justification or injustice. The sanctions are awarded. The sanctions sought are $2,465. The sanctions include 2 hours at $400 per hour to prepare a reply, when no opposition was filed, and no reply, and 2 hours to appear at the hearing, when this time has already been awarded in connection with the interrogatories motion, above. The sanctions are adjusted accordingly as follows: 4 hours attorney time at $400.00 per hour for total attorneys’ fees of $1,600.00.

The Motion Reservation was for one motion: a single motion to compel responses to discovery. Contrary to this reservation, plaintiff has combined two motions into one: a motion to compel responses to Form Interrogatories (Set Three) and a motion to compel responses to Special Interrogatories (Set Three).

Two separate hearing dates should have been reserved for these two motions to compel. In the future, plaintiff is ordered, again, to obtain separate hearing reservations and pay separate filing fees. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect. The Court will proceed to consider both motions this date, as qualified below.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,800.00 (4.5 hours @ $400/hour [10 hours requested]) plus $65 filing fee [Amount Requested $3,200], which sum is to be awarded in favor of plaintiff Gregory Tate, and against defendant Brookfield Properties Retail Inc., payable within 30 days. CCP §§ 2030.290(c), 2023.010(d), 2023.030(a) and CRC Rule 3.1348(a).

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $465.00 (1.0 hours @ $400/hour [1 hour requested]) plus $65 filing fee [Amount Requested $465], which sum is to be awarded in favor of plaintiff Gregory Tate, and against defendant Brookfield Properties Retail Inc., payable within 30 days. CCP sections 2031.300(c), 2023.010(d) and (f), 2023.030(a); CRC Rule 3.1030(a).

Defendant Brookfield Properties Retail, Inc. is ordered to fully comply with the Response of Defendant Brookfield Properties Retail, Inc. to First Request for Production of Documents Propounded by Plaintiff Gregory Tate, to produce all documents in accordance with its responses, and to designate, by bates stamp or other clear means, which documents produced are responsive specifically on the part of responding party defendant Brookfield Properties Retail, Inc.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,600.00 (4.0 hours @ $400/hour [7 hours requested]) plus $65 filing fee [Amount Requested $2,465], which sum is to be awarded in favor of plaintiff Gregory Tate, and against defendant Brookfield Properties Retail Inc., payable within 30 days. CCP sections 2031.320 (b), 2023.010(h), 2023.030(a); CRC Rule 3.1030(a).

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