Tentative Ruling 

HEARING DATE: January 11, 2024¿¿ 

CASE NUMBER: 22TRCV01634 

CASE NAME: Susan Udewitz; David Udewitz v. South Coast Botanic Garden Foundation, Inc., et al  

 

MOVING PARTY: (1) Plaintiffs, Susan Udewitz and David Udewitz 

(2) Plaintiffs, Susan Udewitz and David Udewitz 

RESPONDING PARTY:

(1) Defendants, South Coast Botanic Garden Foundation, Inc. 

(2) County of Los Angeles 

 

TRIAL DATE: September 23, 2024  

 

MOTION: (1) Motion to Compel Defendant, South Coast Botanic Garden Foundation, Inc. to Answer, Without Objection, Plaintiff’s Discovery Requests and Deem Plaintiff’s Requests for Admission Admitted. 

(2) Motion to Compel Defendant, County of Los Angeles to Answer, Without Objection, Plaintiff’s Discovery Requests 

(3) Request for Sanctions 

 

Tentative Rulings: (1) Mooted, but to pre-empt an expected motion to compel FURTHER responses, the Court will issue an advisory ruling overruling all objections and requiring a further verified response to each of the subject interrogatories and RFAs without any objections by January 31, 2024. 

(2) Ditto 

(3) Request for Sanctions are GRANTED in the total amount of $3,500 

 

 

 

I. BACKGROUND 

A. Factual 

On December 30, 2022, Plaintiffs Susan Udewitz and David Udewitz (collectively, “Plaintiffs”) filed a Complaint against Defendants, South Coast Botanic Garden Foundation, Inc, County of Los Angeles, and DOES 1 through 25. The Complaint alleges causes of action for: (1) Negligence; and (2) Loss of Consortium. 

 

On April 13, 2023, Plaintiffs assert that Plaintiff, Susan Udewitz served her first sets of Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admission on Defendant, South Coast Botanic Garden Foundation, Inc. (“SCBGF”). Per the motions, defendants’ responses were originally due on May 15, 2023, but that numerous extensions were granted to Defendant SCBGF through August 26, 2023.  As of that date, Plaintiffs claim that objections were waived by Defendant SCBGF due to the expiration of the last extension to “respond” even though subsequent extensions were granted to “answer” without objections through November 16, 2023. However, to date, Plaintiffs assert that SCBGF had not provided any responses to the written discovery as of the date these motions were filed.  

 

On April 13, 2023, Plaintiffs also served Susan Udewitz’s first set of discovery on Defendant, County of Los Angeles (“County”). Plaintiffs note that discovery responses were due on May 15, 2023. Similarly, Plaintiffs note that after numerous extensions were granted, on August 26, 2023, objections were waived by Defendant County. Plaintiff continued to provide extensions for answers only – no objections – to and including November 16, 2023. However, Plaintiff notes that Defendant County still had not answered the written discovery as of the filing of these motions.  

 

Defendants essentially fall on the sword of their current counsel Jaion Chung, who admits to carelessness in the handling of the discovery requests and responses thereto resulting from a series of mis-handling errors both by prior counsel and by current counsel who had associated in on July 7, 2023 and substituted in as of August 25 for the SBBG and as of September 8, 2023 for the County.  Essentially, Ms. Chung asserts that prior counsel did nothing on the discovery requests, that she was unaware of the discovery requests until a September 28, 2023 meet and confer letter from Plaintiffs’ counsel, and that she mishandled the retrieval of the file from former counsel and dropped the ball in early November for several weeks after the last of plaintiffs’ extensions expired.   

 

B. Procedural

On November 21, 2023, Plaintiffs filed these motions for orders compelling. On December 28, 2023, both defendants filed oppositions. On January 3, 2024, Plaintiffs filed reply briefs to both oppositions.  

II. ANALYSIS

Motion to Compel Defendant South Coast Botanical Garden Foundation’s Responses 

 

Plaintiffs request this Court order Defendant SCBGF to answer Plaintiff’s Form Interrogatories, Set One, Special Interrogatories, Set One, without objections, and deem the truth of the matters specified in Plaintiff’s Request for Admission (Set One) admitted. Plaintiff also requests monetary sanctions as discussed below.  

 

In opposition, Defendant SCBGF argues that this motion is now moot as it has served verified responses on November 29, 2023. Plaintiffs’ Reply admits that counsel received the belated responses but that the responses are inadequate in several respects, the responses contain preliminary sets of objections as well as individual objections to certain of the requests, and other deficiencies.  Defendants fail to attach their responses to the discovery for the Court to determine whether their responses are in substantial compliance; only an email referencing pdf digital files was attached to the Chung declaration. (Plaintiffs’ reply papers included the November 29, 2023 objection-filled responses, so the Court was able to determine the extent of the responses’ compliance.)  The Chung declaration fails to explain the week and a half delay after counsel finally received the entire file where SCBGF could have but failed to provide timely responses to discovery before counsel went out of town on a pre-planned vacation. Further, even though not granted, defense counsel’s request to extend the response time for two more weeks on November 2, 2023, would have had their responses to Plaintiffs by November 16, 2023, but instead, they were not provided nearly two weeks later, and after the motions were filed. While Plaintiffs’ reply papers argue that Ms. Chung’s excuses do not rise to the level required by Section 473(b), the Court disagrees.  The Court finds defense counsel to be remorseful, she admitted a series of mistakes, and implicitly accepts responsibility for the consequences despite the embarrassment of having to do so.   

 

Based on this, the Court determines that the motions to compel initial discovery responses have been mooted by the service and admitted receipt of objection-filled responses long after objection had been deemed to be waived.  However, the belated service of the responses does not moot the requests for monetary sanctions, which will be discussed below.   

 

The parties’ briefing suggests that Plaintiffs next would file motions to compel further (i.e., not initial) responses, for an order overruling all objections, and for additional monetary sanctions.  To guide the parties and potentially avoid another set of additional motions, the Court will issue an advisory ruling to perhaps limit the need for much of that anticipated further activity.   If the parties have or can stipulate to extend the 45-day period to move to compel the November 29, 2023 discovery responses, the Court’s advisory ruling is that, based on the record currently before the Court, the Court would be inclined to require Defendant SCBGF to provide verified further or supplemental responses, without objection, to Plaintiff’s Form Interrogatories and Special Interrogatories, Set One by January 31, 2024. Moreover, this Court would be inclined to require SCBGF to provide further or supplemental verified responses to the requests for admission with no objections, also by January 31, 2024.  These advisory rulings are without prejudice to a future motion to compel further responses to the subject discovery requests. 

 

Sanctions 

Plaintiff seeks sanctions against Defendant SCBGF in the amount of $2,475. Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel.¿¿(CCP. §§ 2030.290(c),¿2030.300(d),¿2031.300(c),¿and 2031.310(h).) However, sanctions are not mandatory if 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.”¿¿(Id.)¿ The Court does not find substantial justification but does find that the belated responses only came as a result of the motions being filed, which justifies mandatory monetary sanctions. 

Plaintiffs’ sanction amount is based on Plaintiffs’ counsel spending 3.5 hours preparing this motion and engaging in meet and confers, an anticipated 2 hours traveling and attending the hearing, and an hourly billing rate of $450 an hour. In opposition, Defendant SCBGF argues that sanctions should be denied due to the handling attorney’s mistake, inadvertence, and excusable neglect, but the Court disagrees with defense counsel. Even without receiving the final extension requested, Defendant SCBGF still failed to provide the answers within the two weeks which it claimed it would need to complete discovery, still failed to provide objection-free responses, and essentially required these motions to be filed in order to facilitate service and receipt of the responses.  The objection-filled discovery responses were not provided until six business days after the filing of these motions. The claim that the sanctions request was mooted is unfounded.  

The Court GRANTS the monetary discovery sanctions as to SCBGF and its counsel in the lowered amount of $1,750, to be paid to Plaintiffs’ counsel by January 31, 2024. 

Motion to Compel Defendant County of Los Angeles’ Response 

 

 

In addition to their motions against SCBGF, Plaintiffs also request this Court to order Defendant County to answer Plaintiff’s Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Production of Documents without objections. Plaintiff also requests monetary sanctions as discussed below.  

The Court’s analysis and rulings as to the County are the same as to the SCBGF.  The motions to compel initial responses are mooted but the monetary sanctions are not.  The COuort’s advisory opinion is the same as tot eh County for the same reasons as outlined for the SCBGF.   The Court GRANTS the motion for sanctions against Defendant County and its counsel of record in the lowered amount of $1,750. This amount is to be paid to Plaintiffs’ counsel by January 31, 2024.   

Unless notice is waived, Plaintiffs counsel is ordered to give notice of these rulings.