Judge Steven A. Ellis, Case Number: 22STCV22709, Date: 2023-08-04 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV22709, Date: 2023-08-04 Tentative Ruling

Case Number: 22STCV22709 Hearing Date: February 16, 2024 Dept: 29

Plaintiff’s motion to compel Defendant Garcia to provide further responses to interrogatories (filed 12/4/23)
Plaintiff’s motion to compel Defendant Garcia to provide further responses to requests for production (filed 12/4/23)

Tentative

The Court GRANTS in part the motions to compel Defendant Garcia to provide further responses to discovery.

The Court GRANTS in part Plaintiff’s request for sanctions.

Background

On July 14, 2022, Plaintiffs Luca Bruno and Brandi M. Brown filed the complaint in this action against Defendants Jim K. Garcia, Ian McNeal Guevara, and Does 1 through 50, asserting claims for motor vehicle negligence and general negligence arising out of a car accident that allegedly occurred on October 17, 2021. On January 19, 2023, Defendants Jim K. Garcia and Ian McNeal Guevara filed their answer.

On May 5, 2023, Plaintiff Luca Bruno (“Plaintiff”) served discovery, including Form Interrogatories (Set One) and Requests for Production (Set One), on Defendant Garcia (“Garcia”). (Miletic Decl., ¶ 3 & Exh. C.)

(The Court notes that although Plaintiffs’ counsel states that special interrogatories were also served on Garcia, no such special interrogatories were included in the moving papers. Moreover, in connection with the discovery motions that were heard on August 4 and October 30, 2023, Plaintiff’s counsel stated in declarations that Garcia was served with form interrogatories and requests for production, but no mention was made of special interrogatories. [See Declaration of Thomas J. Miletic filed on July 6, 2023, ¶ 3; Declaration of Thomas J. Miletic filed on September 27, 2023, ¶ 3 & Exhs. D-E.])

On October 24, 2023, Garcia served verified responses to the Form Interrogatories and Requests for Production. (Miletic Decl., ¶ 7 & Exhs. B-C.) Plaintiff contends that the responses are not code compliant, and further meet-and-confer efforts did not resolve this dispute. (Id., ¶¶ 9-10 & Exhs. F-G.)

On December 4, 2023, Plaintiff filed the two motions that are currently before the Court, seeking an order to compel further responses to interrogatories and requests for production. Plaintiff also seeks monetary, evidence, issue, and terminating sanctions.

Garcia did not file a timely opposition to the motions. On February 13, 2024, just three days before the hearing, Garcia’s counsel filed a declaration stating that she had been unable to reach Garcia for many months but earlier on February 13, Garcia “returned [counsel’s] phone call and an appointment was set for [February 14] for Mr. Garcia to respond to the outstanding discovery requests.” (Foley Decl., ¶ 7.)

Legal Standard

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)

Notice of a motion to compel further responses must be given “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Id., subd. (c).)

A motion to compel further responses must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a “concise outline of the discovery request and each response in dispute.” (Id., subd. (b)(1) & (b)(2); Cal. Rules of Court, rule 3.1345.)

“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 a further 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.” (Code Civ. Proc., § 2030.300, subd. (d).)

“If a party then fails to obey an order compelling further response 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 …. In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 ….” (Code Civ. Proc., § 2030.300, subd. (e).)

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

A motion to compel further responses must set forth specific facts showing good cause for the discovery and must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a “concise outline of the discovery request and each response in dispute.” (Id., subd. (b)(1)-(3); Cal. Rules of Court, rule 3.1345.)

“[T]he 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 further response to 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.” (Code Civ. Proc., § 2031.310, subd. (h).)

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction ordering that any person “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.” A “misuse of the discovery process” includes (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).)

The Civil Discovery Act provides for an escalating and “incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) Discovery sanctions should be appropriate to and commensurate with the misconduct, and they “should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Ibid.; see also, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)

Terminating sanctions should be used sparingly. (Doppes, supra, 174 Cal.App.4th at p. 992; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) “Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez, supra, 246 Cal.App.4th at p. 604.) But where discovery violations are “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Doppes, supra, 174 Cal.App.4th at p. 992.) Repeated and willful violations of discovery orders that prejudice the opposing party may warrant a terminating sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246; Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622.)

The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Court’s orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a “windfall” for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Court’s orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.)

Discussion

Special Interrogatories

The Court denies Plaintiff’s request for an order compelling Garcia to provide further responses to what is described as Special Interrogatories (Set One). As noted above, there is no evidence that Plaintiff ever served Garcia with special interrogatories.

Form Interrogatories

Based on the Separate Statement, Plaintiff is seeking further responses to Form Interrogatories 15.1, 16.6, 16.8, 20.2, 20.5, 20.7, 20.8, and 20.11.

The Court has carefully reviewed the responses to these interrogatories and GRANTS the motion to compel further responses as to Form Interrogatories 15.1 (subparts (a) and (c)), 16.6 (subparts (a) and (d)), 16.8 (subparts (a), (c), and (d)), 20.2 (subparts (b) and (c)), 20.5 (entirety), 20.7 (subparts (a) and (c)), 20.8 (subparts (a) and (b)), 20.11 (entirety).

Each of these responses is evasive, incomplete, and/or not code compliant.

Requests for Production

Based on the Separate Statement, Plaintiff is seeking further responses to Requests for Production Nos. 2-14.

The Court has carefully reviewed the responses to these requests for production and GRANTS the motion to compel further responses as to Requests for Production Nos. 2-13. Garcia’s response that he is “not aware of any documents responsive to” each request is not code compliant. (See Code Civ. Proc., §§ 2031.210, subd. (a); 2031.220; 2031.230.)

As to Request for Production No. 14, the request to compel a further response is denied. Plaintiff’s issue is not that the form of the response is improper; rather, Plaintiff argues that Garcia has not complied with his promise to produce the responsive documents. The remedy for such a failure to produce is a motion to compel compliance under Code of Civil Procedure section 2031.320, not a motion to compel a further written response under section 2031.310.

Monetary Sanctions

Plaintiff has prevailed on these motions to compel further responses. Garcia’s conduct is not substantially justified, and it would not be unjust to impose sanctions on him for his failure to comply with his obligations under the Civil Discovery Act. The Court will not, however, impose sanctions against Garcia’s counsel; counsel has been diligent in attempting to communicate with Garcia, Garcia has failed to respond, and under these circumstances it would be unjust to sanction counsel.

The Court sets sanctions on each motion in the amount of $935, calculated based on 2.5 hours of attorney time for each motion, multiplied by counsel’s reasonable billing rate of $350 per hour, plus the $60 filing fee. (Although counsel now seeks sanctions based upon a billing rate of $500 per hour, in August and October 2023 the Court found that counsel’s reasonable billing rate was $350 per hour, and no evidence has been presented of a change in circumstances or any other basis to support counsel’s request for sanctions based on the higher billing rate.)

Nonmonetary Sanctions

The Court denies the request for nonmonetary sanctions at this time and on this record. Garcia has made some steps toward compliance with his obligations under the Civil Discovery Act, and although he still is far from fully compliant, the Court finds that the imposition of nonmonetary sanctions would be premature at this time.

The Court admonishes Garcia that any violations of this order, or any further noncompliance with his obligations under the Civil Discovery Act or violations of any Court order relating to discovery, may lead to the imposition of harsh monetary and nonmonetary sanctions, including evidence sanctions, issues sanctions, and/or terminating sanctions, without further warning.

Conclusion

The Court GRANTS in part the motions to compel further responses.

The Court ORDERS Defendant Garcia to provide code compliant, verified, further responses, without objection, to Plaintiff’s Form Interrogatories 15.1 (subparts (a) and (c)), 16.6 (subparts (a) and (d)), 16.8 (subparts (a), (c), and (d)), 20.2 (subparts (b) and (c)), 20.5 (entirety), 20.7 (subparts (a) and (c)), 20.8 (subparts (a) and (b)), and 20.11 (entirety), within 21 days of notice.

The Court ORDERS Defendant Garcia to provide code compliant, verified, further written responses, without objection, to Plaintiff’s Requests for Production Nos. 2-13, within 21 days of notice.

The Court ORDERS Defendant Garcia to pay monetary sanctions to Plaintiff under the Civil Discovery Act in the total amount of $1,870 ($935 per motion, multiplied by two motions), within 21 days of notice.

All other relief sought by these motions is DENIED.

Plaintiff is ordered to give notice.