Judge: Stephen I. Goorvitch, Case: 22STCV15061, Date: 2023-02-15 Tentative Ruling

Case Number: 22STCV15061    Hearing Date: February 15, 2023    Dept: 39

RGN-Culver City I, LLC v. Covar 10100 LLC

Case No. 22STCV15061

Motion for Sanctions

            Plaintiff filed a motion to compel with respect to form interrogatories, special interrogatories, and requests for production.  The parties resolved the dispute and filed a stipulation that Defendant would provide responses on or before October 19, 2022, and would pay $750 in sanctions, but that the parties would “meet and confer between October 5 and 12 to determine if any portion of RGN’s Written Discovery is no longer necessary in light of COVAR’s work.”  (See Parties’ Stipulation, dated September 13, 2022.)  The Court granted the stipulation and order the parties to comply with its terms, including the meet-and-confer requirement.  (See Court’s Order, dated September 12, 2021.) 

            Now, Plaintiff moves for discovery sanctions of $2,250 and monetary sanctions of $1,500 under Code of Civil Procedure section 177.5.  Plaintiff also moves for a terminating sanction.  Defendant did not serve discovery responses and did not pay the sanctions, per the Court’s order granting the parties’ stipulation.  (Declaration of Anand R. Sambhwani, ¶ 11.)  This motion was noticed for hearing on February 15, 2023, which means the opposition was due on January 30, 2023, if served electronically.  Defendant’s counsel filed an untimely declaration on February 6, 2023. 

            Nevertheless, the Court has considered Defendant’s counsel’s declaration.  Defendant’s counsel states that he wrote to RGN’s counsel on October 7, 2022.  (Declaration of Marc E. Rohatiner, ¶ 7.)  The email states:

            “I am serving the discovery responses this afternoon. With respect to the repairs my understanding is that everything is completed with the exception of a component of the HVAC system. The hold up is on the part of the HVAC contractor who is having trouble getting the part delivered. I have asked for a status report form the HVAC contractor that I will then forward to you.”

(Id., Exh. C.)  Defendant’s counsel states that this reference to serving discovery responses references “a second set of discovery requests” and not those subject to the Court’s order.  (Id., ¶ 7.)  However, the email does not make that clear and reasonably was understood by Plaintiff’s counsel to refer to the discovery ordered by the Court.    

            Accordingly, on October 13, 2022, Plaintiff’s counsel sent an email concerning Defendant’s counsel violation of the Court’s order on the parties’ stipulation.  (Id., Exh. D.)  The email states: “Are you available Monday or Tuesday to meet and confer?  We want to meet and confer regarding COVAR’s deficient responses to Plaintiff’s RFPs, Set 2, and COVAR’s non-compliance with the Court’s Order as to sanctions.  (Ibid.)  Inexplicably, Defendant’s counsel did not respond to this email for almost two weeks, finally sending a response on October 26, 2022.  (Id., Exh. E.)  Defendant’s counsel’s declaration does not state that he called Plaintiff’s counsel in the interim.  (Id., ¶¶ 8-9.)  Defendant’s counsel offered to make himself available the next day—October 27, 2022—but Plaintiff’s counsel filed the motion on November 1, 2022. 

            In sum, the Court ordered COVAR to “provide written responses to RGN’s Written Discovery on or before October 19, 2022,” unless the parties met-and-conferred and agreed that it was not necessary.  Defendant’s counsel sent an email suggesting that he was going to comply with the Court’s order, but never did.  Plaintiff’s counsel asked to meet-and-confer, and Defendant’s counsel ignored him for almost two weeks.  Defendant’s counsel still had not provided discovery responses.  This is an abuse of the discovery process by Defendant’s counsel, and the Court does not blame Plaintiff’s counsel for filing the motion under these circumstances.    

            Defendant’s counsel argues that “for the reasons outlined above, pursuant to the bargained stipulation it is COVAR’s position that RGN waived the right to seek responses to the First Discovery Set . . . .”  The Court disagrees.  There was no waiver.  The Court’s order is clear that he must provide discovery responses unless there is a meet-and-confer resulting in an agreement that the responses are no longer necessary.  Plaintiff’s counsel never agreed to forgo the discovery responses. 

            The Court is concerned that Defendant’s counsel only served the responses on February 6, 2023, shortly before the hearing on this motion, which is a blatant violation of the Court’s order.  The Court’s view that Defendant’s counsel has abused the discovery process is supported by Defendant’s responses to the Requests for Production of Documents (“RPD”), which are not code-compliant.  Per Code of Civil Procedure section 2031.230, a party must make clear whether an inability to comply is because the document “has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been or is no longer, in the possession, custody, or control of the responding party.”  (Code Civ. Proc., § 2031.230.)  The statement also must identify the name and address of anyone known or believed to have possession, custody, or control of the document.  (Ibid.)  Defendant’s responses to RDP #6 through RPD #14 do not comply with this requirement because they merely state that “[t]here are no such documents” and state that “the requested documents do not exist.”  They do not make clear whether the documents have never existed or whether they once existed and no longer exist.  Nor do the responses identify who may have the requested documents.

            Based upon the foregoing, the Court finds that Defendant has abused the discovery process and grants the motion with respect to the request for discovery sanctions in the amount of $2,250.  The Court denies the motion for monetary sanctions under section 177.5 and terminating sanctions, as the discovery sanctions are sufficient to remedy this issue.    

            The Court orders as follows:

            1.         The Court grants Plaintiff’s motion for sanctions and orders Defendant to pay Plaintiff, by and through counsel, discovery sanctions in the amount of $2,250 within thirty (30) days.

            2.         The Court denies the motion to the extent it seeks additional monetary sanctions under Code of Civil Procedure section 177.5 or terminating sanctions.

            3.         Plaintiff’s counsel shall provide notice and file proof of such with the Court.