Judge: Teresa A. Beaudet, Case: 22STCV00778, Date: 2023-03-15 Tentative Ruling

Case Number: 22STCV00778    Hearing Date: March 15, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff 11640 Woodbridge Condominium Homeowners’ Association (“Plaintiff”) filed this action on January 7, 2022 against Defendants Farmers Insurance Exchange (“FIE”) and Local Roofer LLC. The Complaint asserts causes of action for (1) breach of the contractual duty to pay a covered insurance claim, (2) breach of the implied covenant of good faith and fair dealing, and (3) negligence.

On April 20, 2022, Nelson Bardales dba Local Roofer (erroneously sued as Local Roofer LLC), filed a Cross-Complaint against Roes 1 through 50.

On October 14, 2022, the parties participated in and Informal Discovery Conference. The Court’s October 14, 2022 minute order provides, inter alia, that “[t]he parties agreed and the Court ordered as follows:

1. Plaintiff will email serve Defendants with supplemental verified responses to (a) Plaintiff’s special interrogatory no. 23 regarding damages and nos. 19-20, and (b) each of Plaintiff’s requests for production (set one), identifying the documents produced and the specific request to which the production pertained, and stating that the code-compliant search for the requested documents was conducted, and no other documents were remaining in their custody, possession or control, or, if documents were lost, destroyed or never existed, so stating.

2. Plaintiff will produce via email a redacted copy of its retainer agreement with counsel.

3. Plaintiff also will email serve a supplemental verified response to requests for production nos. 21 and 22, which currently contain only objections, to indicate that the requested documents, if any, have been or will be produced.

4. The supplemental responses and the document production will be email served no later than 10/28/22; if any additional documents are located that are responsive to the first set of requests for production, those documents will be email served by the same date.”

FIE’s counsel indicates that on “October 28, 2022 at 5:15 p.m., [she] received an email from Plaintiff’s counsel’s assistant transmitting Plaintiff’s Amended Responses to Defendant’s Request for Production of Documents, Set One, Plaintiff’s Sixth Production bates stamped PLT003737-PLT003740, and Plaintiff’s Fourth Amended Responses to Defendant’s Special Interrogatories, Set One.” (Cooper Decl., ¶ 5.) Verifications were provided on November 3, 2022. (Cooper Decl., ¶ 5.) FIE asserts that these supplemental responses to the requests for production are in violation of the Court’s October 14, 2022 Order. 

FIE now moves for an order granting evidentiary sanctions and monetary sanctions for Plaintiff’s violation of the Court’s October 14, 2022 Order. Plaintiff opposes. 

Legal Standard

Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of monetary and evidentiary sanctions. (Code Civ. Proc., § 2023.030.)

A monetary sanction may be imposed against one engaging in the misuse of the discovery process. (¿Code Civ. Proc., § 2023.030, subd. (a)¿.) An evidentiary sanction may be imposed by way of an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (¿Code Civ. Proc., § 2023.030, subd. (c).)   

Discussion

FIE asserts that evidentiary sanctions are warranted here. FIE seeks the evidentiary sanction that “Plaintiff is precluded from offering any evidence not produced as of October 28, 2022.” (Mot. at p. 2:1-2.)

As set forth above, FIE asserts that Plaintiff’s supplemental responses to FIE’s requests for production were in violation of the Court’s October 14, 2022 Order. More specifically, FIE indicates that Plaintiff’s October 28, 2022 Amended Responses to Defendant’s Request for Production of Documents, Set One, only provided supplemental responses to Requests Nos. 1, 2, 5, 6, 20, 21, 22, 29, 30, and 31. (Cooper Decl., ¶ 5, Ex. C.) FIE indicates that no supplemental responses were provided for Requests Nos. 3, 4, 7-19, 23-28, or 32-39. FIE asserts that this is in violation of Paragraph 1 of the October 14, 2022 Order requiring Plaintiff to “email serve Defendants with supplemental verified responses to…(b) each of Plaintiff’s requests for production (set one)…”

FIE also indicates that Plaintiff’s October 28, 2022 amended responses to Requests Nos. 1, 2, 5, 6, 20, 21, and 22 each provide, inter alia: “[s]ubject to and without waiving the foregoing objections, the responding party has produced relevant and non-privileged documents in its custody, control, or possession responsive to this request…Discovery and investigations are continuing and the responding party reserves the right to supplement this response.” (Cooper Decl., ¶ 5, Ex. C.)[1] FIE asserts that the supplemental responses thus violate the requirement in the October 14, 2022 Order that Plaintiff state “that the code-compliant search for the requested documents was conducted, and no other documents were remaining in their custody, possession or control, or, if documents were lost, destroyed or never existed, so stating.” (Emphasis added.)

FIE also asserts that Plaintiff has improperly qualified its responses by stating that it has produced only “non-privileged documents.” FIE states that Plaintiff did not object on the grounds of privilege in its initial or supplemental responses to the Requests for Production, and no privilege log has ever been produced. (Cooper Decl. ¶ 6.) FIE also contends that “Plaintiff has improperly qualified its response by stating it has only produced ‘relevant’ documents. Plaintiff is not permitted to withhold production according to its own assessment of relevance.” (Mot. at p. 5:7-9.) FIE also notes that the verifications were not timely provided by October 28, 2022. (Cooper Decl., ¶ 5.)

In the opposition, Plaintiff provides evidence that after FIE’s instant motion was filed on December 5, 2022, Plaintiff served “2nd Amended Responses to Defendant’s Request for Production of Documents, Set One” on January 11, 2023. (Corby Decl., ¶ 1, Ex. A.) Plaintiff asserts that “as of January 11, 2023, when Plaintiff served its Second Amended Responses, the only way Plaintiff did not comply with the Court’s order is that the amended responses and verifications were not provided in time.” (Opp’n at p. 4:20-22.)

FIE asserts that evidentiary sanctions are still warranted, as FIE served the instant motion on December 5, 2022, and Plaintiff did not correct the violations until January 11, 2023. FIE cites to Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228, where the Court of Appeal noted that “[h]aving determined the imposition of sanctions was proper due to Sauer’s willful failure to comply with the court’s order, our next inquiry is whether the particular sanction chosen -- exclusion of all evidence of economic loss -- was appropriate under the circumstances.” The Court of Appeal “conclude[d] there was no abuse of discretion.” (Ibid.) FIE notes that the Sauer Court found that “[i]mposition of a lesser sanction would have allowed Sauer to benefit from his delay by forcing Oak into the unfavorable position of proceeding to trial ill-prepared to meet Sauer’s $1.5 million damage claim and would encourage the very conduct for which the Legislature enacted section 2034, subdivision (b)(2)(B). Sauer’s failure to produce the requested documents was not a mere technical violation of a discovery rule. Thus, the court was justified in finding Oak was prejudiced by Sauer’s noncompliance with the discovery order.” (Id. at p. 230 [internal citation omitted].) The Court finds that the circumstances in Sauer are different than those here, as FIE does not articulate a similar prejudice resulting from Plaintiff’s noncompliance with the October 14, 2022 Order, particularly in light of the fact that Plaintiff provided second amended responses.

As Plaintiff has provided second amended responses to the Request for Production of Documents at issue, the Court does not find that the requested evidentiary sanctions are appropriate at this time.[2]

FIE also contends that monetary sanctions should be awarded. FIE asserts that it had to file the instant motion as a result of Plaintiff’s violation of the October 14, 2022 Order. As set forth above, a monetary sanction may be imposed against one engaging in the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (a).) Plaintiff acknowledges in the opposition that it did not comply with the Court’s October 14, 2022 Order by October 28, 2022, the deadline specified in the Order. In addition, Plaintiff’s second amended responses were served on January 11, 2023 (Corby Decl., ¶ 1), after FIE filed the instant motion on December 5, 2022.

FIE seeks monetary sanctions in the amount of $2,551.00 in connection with FIE’s work on the instant motion, which amount includes a $60 filing fee for the motion. (Cooper Decl.,       ¶ 8.) The Court finds that this amount is reasonable.

Conclusion

Based on the foregoing, FIE’s motion is granted in part and denied in part. The Court denies FIE’s request for evidentiary sanctions. The Court grants FIE’s request for monetary

sanctions and orders Plaintiff to pay $2,551.00 to FIE within 30 days of the date of this Order.

            FIE is ordered to provide notice of this Order.

DATED:  March 15, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court