Judge: Teresa A. Beaudet, Case: 21STCV04401, Date: 2023-08-31 Tentative Ruling

Case Number: 21STCV04401    Hearing Date: September 29, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiffs Claudia V. Gonzalez Ruiz (“Claudia Ruiz”), Carolina G. Ruiz (“Carolina Ruiz”), and Diana Gonzalez Ruiz (“Diana Ruiz”) filed this action on February 3, 2021, against Defendant Neomie F. Hernandez, an individual, and dba Exclusive Tax Service. The Complaint alleges causes of action for (1) failure to pay applicable minimum wage, (2) unpaid overtime wages, (3) failure to provide meal periods, (4) failure to provide rest periods, (5) unreimbursed business expenses, (6) failure to furnish complete and accurate wage statements, (7) final wages not timely paid, (8) violation of Labor Code section 232.5, (9) violation of Labor Code section 98.6, (10) violation of Labor Code section 1102.5, (11) wrongful termination in violation of public policy, (12) constructive discharge in violation of public policy, (13) breach of contract, (14) breach of implied covenant of good faith and fair dealing, and (15) violation of Business and Professions Code section 17200, et seq.

On March 26, 2021, Neomie F. Hernandez dba Exclusive Tax Service (“Hernandez”) filed a Cross-Complaint against Claudia V. Gonzalez Ruiz, an individual and dba United Income Tax Services, Carolina Ruiz, and Diana Ruiz. The Cross-Complaint alleges causes of action for (1) misappropriation of trade secrets, (2) theft of cross-complainant’s property, (3) breach of contract, (4) unfair competition under Business and Professions Code section 17200, et seq., (5) intentional interference with prospective economic relations, (6) defamation, (7) injunctive relief, and (8) declaratory relief.  

Carolina Ruiz now moves for an order “imposing sanctions in the form of monetary sanctions against plaintiff, Neomie F. Hernandez, and her counsel Anthony Willoughby II pursuant to Code of Civil Procedure section 128.7, to include reasonable attorney fees and costs in the amount of $3,580.00.” Hernandez opposes.

Discussion

Pursuant to Code of Civil Procedure section 128.7, subdivision (b), “[b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” 

Code of Civil Procedure section 128.7, subdivision (c) provides in pertinent part, “[i]f, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

Carolina Ruiz indicates that on March 9, 2022, Hernandez served Requests for Production of Documents, Set One and Special Interrogatories, Set One on Carolina Ruiz.

(Lopez Decl., ¶ 2, Ex. 1.) On April 11, 2022, Carolina Ruiz served responses to Hernandez’s Requests for Production of Documents, Set One and Special Interrogatories, Set One, which consisted solely of objections. (Lopez Decl., ¶ 3, Ex. 2.)

            On December 13, 2022, Hernandez filed a motion “for an order compelling Plaintiff/Cross-Defendant, to serve responses to Request for Production of Documents, Set One, served on Plaintiff/Cross-Defendant on March 9, 2022.” Hernandez also filed a motion on December 13, 2022 “for an order compelling Plaintiff/Cross-Defendant, to serve responses to Special Interrogatories, Set One, served on Plaintiff/Cross-Defendant on March 9, 2022.” Carolina Ruiz asserts that Hernandez’s December 13, 2022 motions are not warranted by existing law because Carolina Ruiz served responses to the subject discovery requests. (Lopez Decl., ¶ 6.) Carolina Ruiz asserts that Hernandez filed the wrong motions, and “should have filed motions to compel further responses after having made a good-faith attempt to meet and confer…” (Mot. at p. 5:26-27.)

            In the opposition, Hernandez notes that on March 23, 2023, the Court issued an Order denying Hernandez’s subject motions to compel responses filed on December 13, 2022. The Court’s March 23, 2023 Order provides, inter alia, as follows:

“Although Hernandez cites to Code of Civil Procedure sections 2031.310 and 2030.300, she appears to assert that the instant motions are motions to compel responses, as opposed to motions to compel further responses. Hernandez asserts that ‘where the Defendant serves responses, but those responses are unverified, then a motion to compel discovery responses is the proper motion because unverified responses are tantamount to no responses at all.’ (Mots. at pp. 3:17-20.) Hernandez cites to Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636, where the Court of Appeal noted that ‘[u]nsworn responses are tantamount to no responses at all.’

However, as noted by Carolina Ruiz, verifications are not required for responses that consist entirely of objections. Pursuant to Code of Civil Procedure section 2031.250, subdivision (a), ‘[t]he party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections.’ In addition, pursuant to Code of Civil Procedure section 2031.250, subdivision (c), ‘[t]he attorney for the responding party shall sign any responses that contain an objection.’ Further, pursuant to Code of Civil Procedure section 2030.250, subdivision (a), ‘[t]he party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.’ Pursuant to Code of Civil Procedure section 2030.250, subdivision (c), ‘[t]he attorney for the responding party shall sign any responses that contain an objection.’

As noted by Carolina Ruiz, in Appleton, the responses contained a fact-specific answer. (See Appleton v. Superior Court, supra, 206 Cal.App.3d at pp. 633-634, ‘Appleton served upon Cook a set of three requests for admission which referred to allegations of the first amended complaint. Because of an intervening amendment to the complaint, Cook objected but did provide a single purported answer to all three requests. However, this response was not verified.’)

Thus, the Court finds that the appropriate motion here is a motion to compel further responses, as Carolina Ruiz served responses to Hernandez’s Requests for Production of Documents, Set One, and Special Interrogatories, Set One consisting solely of objections.” (March 23, 2023 Order at pp. 2:25-3:23.)

The Court’s March 23, 2023 Order also provides as follows:

“Carolina Ruiz also cites to Code of Civil Procedure section 2023.030, which provides, inter alia, ‘[t]he 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.’ (Code Civ. Proc., § 2023.030, subd. (a).) Carolina Ruiz indicates that her counsel determined that the instant motions had no merit, and that on December 20, 2022, he requested that Hernandez’s counsel withdraw the motions. (Lopez Decl., ¶¶ 6-7.) Carolina Ruiz’s counsel also indicates that he sent Hernandez’s counsel ‘code sections that support [his] client’s position that the responses containing objections only did not need to be verified by the responding party,’ but Hernandez’s counsel still refused to withdraw the motions. (Lopez Decl., ¶¶ 9, 10.) Carolina Ruiz contends that Hernandez’s counsel refused to withdraw the motions even when he knew they did not have merit. However, based on a consideration of the foregoing, it appears there was confusion on Hernandez’s part regarding the applicable Code of Civil Procedure requirements, not an intentional misuse of the discovery process. Accordingly, the Court declines to award sanctions against Hernandez.” (March 23, 2023 Order at p. 4:18-5:5.)

            Hernandez asserts in the opposition to the instant motion that “[t]his Court has already determined that the motions resulted from confusion regarding the applicable Code of Civil Procedure requirement and not an intentional misuse of the discovery process. Therefore, this Court has already address [sic] whether the motions were sanctionable, and this Court declined to enter sanction. As such, sanctions should not issue pursuant to the instant Motion…” (Opp’n at p. 5:11-15.) The Court notes that Carolina Ruiz did not file any reply in support of the instant motion and thus does not dispute this point.  

            In light of the foregoing, the Court does not find that Carolina Ruiz has demonstrated that Code of Civil Procedure section 128.7, subdivision (b) has been violated by Hernandez. Thus, the Court does not find that sanctions are warranted here under Code of Civil Procedure section 128.7.

Conclusion

Based on the foregoing, Carolina Ruiz’s motion for sanctions is denied.

Hernandez is ordered to give notice of this order. 

DATED:  September 29, 2023                       ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court