Judge: Teresa A. Beaudet, Case: 23STCV19468, Date: 2024-12-04 Tentative Ruling

Case Number: 23STCV19468    Hearing Date: December 4, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On August 15, 2023, Plaintiff Downtown L.A. Law Group (“Plaintiff”) filed a “Complaint in Interpleader” in this action against a number of Defendants, including Daniel M. Borga and George Rappard, M.D.

In the Complaint, Plaintiff alleges, inter alia, that “Defendant DANIEL M. BORGA was rear-ended and pushed into the vehicle in front of him. The collision occurred on April 30, 2016 at approximately 3pm near the intersection of Doheny Dr and 3rd Street. The personal injury claim settled on or about October 28, 2019.” (Compl., ¶ 3.) “The total settlement of the claim was $160,000.00.” (Compl., ¶ 7.) Plaintiff alleges, inter alia, that “Defendant Daniel M. Borga and Plaintiff signed a medical lien to pay Defendant GEORGE RAPPARD, M.D. from settlement proceeds.” (Compl., ¶ 9.) Plaintiff alleges that “Plaintiff’s attorney files this complaint of interpleader in good faith, and deposits Defendant Daniel M. Borga’s trust sum of $160,000.00, since there is a valid dispute between Plaintiff and Defendants as to the usual, customary, and reasonable charges of the attorneys’ fees and costs.” (Compl., ¶ 17.)

On November 29, 2023, George Rappard, M.D., Inc. (“Rappard”) filed an answer to the Complaint.

Rappard now moves “for evidentiary, issue and monetary sanctions against [Plaintiff] for failure to obey prior court orders.” Plaintiff filed a “response” to the motion.

Discussion

Misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (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, evidentiary, issue, and terminating sanctions. (Code Civ. Proc., § 2023.030.)

“The court may impose an evidence sanction by 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).) In addition, “[t]he court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code Civ. Proc., § 2023.030, subd. (b).) Further, “[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).)

In his declaration in support of the instant motion, Rappard’s counsel states that “[o]n 12-5-23, I served Defendant’s First Set of Requests for Production of Documents upon Plaintiff’s Counsel…” (Friedman Decl., ¶ 2.) Rappard’s counsel states that “[w]hen no response was received, I filed a motion to compel responses to the same discovery. That motion was set to be heard on March 4, 2024. But in Plaintiff’s opposition to the motion, for the very first time, Plaintiff alleged it never received the discovery due to an error in the email address that I was using. So I appropriately took the motion off calendar.” (Friedman Decl., ¶ 4.) Rappard’s counsel states, “I emailed Plaintiff’s counsel and we agreed that discovery responses would be due no later than March 27, 2024…No responses were received by March 27, 2024.” (Friedman Decl., ¶¶ 5-6.) Rappard’s counsel indicates that “Plaintiff responded to the discovery on April 3, 2024. The responses included multiple objections, not code-compliant responses, and no documents identified with the specific request number to which the documents respond.” (Friedman Decl., ¶ 8.) Rappard’s counsel “sent multiple emails to Plaintiff’s counsel in an attempt to meet and confer on these deficiencies,” but “Plaintiff’s counsel refused to respond to any of these overtures.” (Friedman Decl., ¶ 9.)  

Rappard notes that on September 26, 2024, an Informal Discovery Conference (“IDC”) was held in this action. The Court’s September 26, 2024 minute order provides, inter alia, as follows:

“The parties attended the Informal Discovery Conference. The Parties agreed and the Court ordered as follows:

1. On or before October 2, 2024, Plaintiff will email to Counsel for Defendant Dr. Rappard a separate link for each of the following: (a) The documents that support Plaintiff’s claim to Attorney fees in this case, (b) The documents that support Plaintiff’s claim to costs in this case and (c) any unprivileged evidence that Defendant Borga disputes any lien claims in this case with a privilege log listing any documents withheld on the basis of privilege.

2. On or before October 17, 2024, Plaintiff will e-serve Counsel for Plaintiff with a copy of the requested retainer agreement (RFP 15).

3. The Motion to Compel Further set on November 22, 2024 is off calendar as moot.”

Rappard’s counsel states that “[t]o this date, Plaintiff has not provided any responses of any kind to Defendant’s First Set of Demand For Production of Documents pursuant to the Court Order of Sept. 26, 2024.” (Friedman Decl., ¶ 13.)

As set forth above, Rappard moves “for evidentiary, issue and monetary sanctions against Plaintiff…” (Notice of Motion at p. 1:24.) In the motion, Rappard argues that the Court should “enter an order precluding Plaintiff from presenting any evidence related to Plaintiff’s claims to any and all of the interplead monies and further issue an order deeming all Plaintiff’s claims to interplead monies waived and dismissed.” (Mot. at p. 10:11-14.)

As an initial matter, it is unclear on what legal basis Rappard seeks an order “deeming all Plaintiff’s claims to interplead monies waived and dismissed.” (Mot. at p. 10:13-14.) To the extent Rappard is seeking terminating sanctions against Plaintiff, Rappard’s notice of motion and the memorandum of points and authorities in support of the motion do not state that such sanctions are sought. The Court notes that pursuant to California Rules of Court, rule 3.1110, subdivision (a), “[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” Based on the foregoing, the Court denies Rappard’s request for an order “deeming all Plaintiff’s claims to interplead monies waived and dismissed.” (Mot. at p. 10:13-14.)

As discussed, Rappard also seeks an order “precluding Plaintiff from presenting any evidence related to Plaintiff’s claims to any and all of the interplead monies…” (Mot. at p. 10:11-13.) As set forth above, “[t]he court may impose an evidence sanction by 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).)

In its response to the instant motion, Plaintiff does not appear to specifically address Rappard’s request for evidentiary sanctions. Plaintiff asserts, inter alia, that “[a]fter an informal discovery conference, the Court required that DTLA provide discovery. On 11/12/24, this discovery was provided in the format that the Court requested. A copy of the response is attached as Exhibit ‘A.’ This discovery response is complete, except that DTLA cannot find its retainer agreement.” (Response at p. 3:20-24.) Plaintiff also states that “[t]he Court also ordered that DTLA file a privilege log. A copy of the privilege log is attached as Exhibit ‘B.’” (Response at p. 4:3-5.) The Court notes that the exhibits attached to Plaintiff’s response are not authenticated. Plaintiff’s response refers to a “Declaration of Igor Fradkin,” but such declaration does not appear to have been provided. Thus, Plaintiff also does not provide any evidence demonstrating that Plaintiff “cannot find its retainer agreement.” (Response at p. 3:23-24.)

Moreover, “Exhibit A” attached to Plaintiff’s response is a document dated April 3, 2024, captioned “Plaintiff Downtown L.A. Law Group, LLP’s Responses to Defendant George Rappard M.D., Inc.’s Requests for Production of Documents, Set One.” As noted by Rappard, these April 3, 2024 responses pre-date the Court’s September 26, 2024 IDC and September 26, 2024 minute order by several months.  

In addition, as discussed, the Court’s September 26, 2024 minute order provides, inter alia, that “[o]n or before October 2, 2024, Plaintiff will email to Counsel for Defendant Dr. Rappard a separate link for each of the following: (a) The documents that support Plaintiff’s claim to Attorney fees in this case, (b) The documents that support Plaintiff’s claim to costs in this case and (c) any unprivileged evidence that Defendant Borga disputes any lien claims in this case with a privilege log listing any documents withheld on the basis of privilege.” Plaintiff does not appear to provide any evidence demonstrating that it produced documents in accordance with the September 26, 2024 minute order.

Based on the foregoing, the Court finds that Plaintiff has engaged in a misuse of the discovery process by “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subd. (g).) Thus, the Court grants Rappard’s request for evidentiary sanctions, specifically, “an order precluding Plaintiff from presenting any evidence related to Plaintiff’s claims to any and all of the interplead monies…” (Mot. at p. 10:11-13.)

Lastly, Rappard seeks monetary sanctions. As set forth above, “[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).) “If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” (Ibid.) As set forth above, the Court finds that Plaintiff has engaged in a misuse of the discovery process here. The Court does not find that Plaintiff has demonstrated that it “acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2023.030, subd. (a).)

            In his supporting declaration, Rappard’s counsel states that “I have spent more than five (5) hours drafting the motion with the supporting memorandum of points and authorities and this declaration. I anticipate spending two (2) additional hours preparing and drafting a reply to any Defense opposition. I also anticipate spending a total of two (2) hours preparing for and attending the hearing on this motion. My regular hourly rate for handling cases of this nature is $595.00 per hour. The filing fee for this motion was also $60.00. Therefore, fees in the amount of $5,415.00 should be awarded...” (Friedman Decl., ¶ 14.) The Court finds that the requested $5,415.00 in monetary sanctions is reasonable.

Conclusion

Based on the foregoing, Rappard’s motion is granted in part and denied in part.

The Court grants Rappard’s motion for evidentiary sanctions, specifically, “an order precluding Plaintiff from presenting any evidence related to Plaintiff’s claims to any and all of the interplead monies…” (Mot. at p. 10:11-13.) The Court also grants Rappard’s motion for monetary sanctions. Plaintiff is ordered to pay monetary sanctions in the amount of $5,415.00 to Rappard within 30 days of the date of this Order. Rappard’s motion is otherwise denied.

Rappard is ordered to provide notice of this Order.¿

DATED:  December 4, 2024                          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court