Judge Theresa M. Traber, Case Number: 21STCV10861, Date: 2024-07-25 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV10861, Date: 2024-07-25 Tentative Ruling

Case Number: 21STCV10861 Hearing Date: July 25, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: July 25, 2024 TRIAL DATE: March 25, 2025

CASE: Sugarman Asset Management, LLC v. California Department of Transportation

CASE NO.: 21STCV10861

(1) MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS; REQUEST FOR SANCTIONS

(2) MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS

(3) MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS

(4) MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES; REQUEST FOR SANCTIONS

MOVING PARTY: (1)-(4) Defendant the People of the State of California, acting by and through the Department of Transportation

RESPONDING PARTY(S): (1)-(4) Plaintiff Sugarman Asset Management, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for contractual fraud that was filed on March 19, 2021. Plaintiff alleges that Defendant, the California Department of Transportation, misrepresented the state of a piece of property to induce Plaintiff to purchase the property from Defendant.

Defendant moved to compel further responses to requests for admissions, requests for production, and special interrogatories, and to compel responses to form interrogatories. Defendant also sought sanctions. The Court determined that the motions were moot as to discovery responses on May 9, 2024, but left the matters on calendar to resolve the issue of sanctions only.

TENTATIVE RULING:

Defendant’s Request for Sanctions is GRANTED against Plaintiff and its counsel, jointly and severally, in the amount of $2,800. Payment is to be made within 10 days of this order.

DISCUSSION:

Legal Standard for Discovery Sanctions

Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010.) Under California Code of Civil Procedure section 2023.030, subd. (a), “[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. . . . 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.”

Sanctions are mandatory in connection with motions to compel responses to interrogatories, and for motions to compel further responses to interrogatories, requests for production, and requests for admission against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel. (Code Civ. Proc. §§ 2030.290 (c); 2030.300(d); 2031.310(h); 2033.290(d).) However, sanctions are not warranted if the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id.)

Plaintiff’s Late Responses

On May 9, 2024, the Parties attended an Informal Discovery Conference concerning these motions. The Court determined that the motions were moot, save for the issue of sanctions, which were set for June 28 for rescheduling purposes only. (May 9, 2024 Minute Order.) On June 28, 2024, the Court set the motions for hearing on the issue of sanctions, at the Parties’ request, and instructed counsel for the parties to file and serve a joint statement by July 18, 2024 laying out each party’s position. (June 28, 2024 Minute Order.) Rather than preparing a joint statement with Defendant, Plaintiff apparently elected to prepare its own statement. Defendant’s statement was filed and served on July 18, 2024, per the Court’s order. Plaintiff’s statement, on the other hand, was served the next day, July 19, 2024, and was not filed because the Court’s electronic filing system was disabled by a ransomware attack on that date. (See Plaintiff’s Supplemental Opposition POS.) Plaintiff’s response was therefore not received by the Court until July 24, 2024. Plaintiff offers no explanation for the failure to prepare a joint statement or to timely file and serve its response by the deadline set by the Court. In the interest of a full resolution of the issue on its merits, however, the Court will consider Plaintiff’s tardy response.

Analysis

Defendant requests sanctions against Plaintiff “and its attorneys of record, jointly and severally” in the amount of $1,200 on each motion for a total of $4,800. (See Notice of Motion p.2.) Defendant’s counsel, Nena T. Vuong, states that she incurred nine hours preparing the entire set of four motions, and anticipated a further seven hours to handle oppositions, reply briefs, and appearances for the four motions, for a total of sixteen hours to be apportioned evenly between the four motions. (E.g. Declaration of Nena T. Vuong ISO Mot. Compel Further Responses to Req’s for Admission ¶ 10.) Attorney Vuong states that her services are billed to Defendant at $175 per hour but requests, based on her experience, that her services be valued at $300 per hour. (Id. ¶ 11.)

Plaintiff opposes the request for sanctions to be paid by Plaintiff’s counsel on the grounds that the Notices of Motion did not specifically name the attorney against whom sanctions were being sought. It is true, as Plaintiff argues, that adequate notice and an opportunity to be heard are a requirement before sanctions may be issued under the due process clauses of the California and United States Constitutions. (E.g. Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 208; Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70.) Moreover, Code of Civil Procedure section 2023.040 expressly requires that a request for sanctions “identify every person, party, and attorney against whom the sanction is sought.” (Code Civ. Proc. § 2023.040.) That said, Plaintiff and its counsel offer no authority suggesting that a Notice of Motion seeking sanctions against Plaintiff’s “attorneys of record” is insufficient notice where Plaintiff’s attorney of record in this action has only ever been Mainak D’Attaray of the Law Office of Mainak D’Attaray. (See Complaint.) In that context, the Notices of Motion are not ambiguous, because Attorney D’Attaray is the only person to whom the phrase “Plaintiff’s attorney of record” could refer.

Next, Plaintiff opposes the request for sanctions against its counsel on the grounds that nothing in the record supports a finding that Attorney D’Attaray advised a misuse of the discovery process. Sanctions against a party’s counsel “requires a finding the ‘attorney advis[ed] that conduct.’” (Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261.) The Court is not persuaded. Notwithstanding the issue of whether the initial responses to Defendant’s discovery were timely served, Plaintiff served objection-only boilerplate responses to all of Defendant’s discovery requests. (See, e.g., Vuong Decl. ISO Mot. Compel Further Resp. to Req’s for Admission Exh. C.) These responses are inadequate on their face, whether or not objections were waived by any failure to provide timely responses. Further, these responses, which assert issues such as attorney-client privilege, violation of procedural requirements of the Discovery Act, invasion of privacy, confidential information, or trade secrets, and undue burden, among others, could not have been prepared without the assistance of Plaintiff’s counsel. That Plaintiff provided supplemental responses which may have cured these issues is irrelevant: Defendant is entitled to recompense for the expenses incurred as a result of the conduct exhibited in the initial responses. Because that conduct necessarily included the assistance of Plaintiff’s counsel, Defendant is entitled to sanctions against Plaintiff’s counsel.

Finally, Plaintiff objects to the amount of sanctions on the basis that the motions were “pro forma repetitive motions to compel,” and therefore the full amount of sanctions sought should not be imposed. The Court concurs with Plaintiff that the full amount of sanctions sought is excessive. “[T]he purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits . . . but to prevent abuse of the discovery process and correct the problem presented. . . [T]he penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 301 [internal citations and quotations omitted].) By the admission of Defendant’s counsel, an award of sanctions based on an hourly rate of $300, rather than the $175 per hour actually incurred, would exceed the injury caused by the conduct of Plaintiff and its counsel. Put differently, sanctions in the amount of $4,800 would constitute a windfall for Defendant. Alternatively, that sanction could be considered a punitive measure against Plaintiff and its counsel. Neither is appropriate for a discovery sanction. The Court will therefore award sanctions reflecting the 16 hours sought across the four motions at the rate of $175 per hour, for a total of $2,800, or $700 per motion.

CONCLUSION:

Accordingly, Defendant’s Request for Sanctions is GRANTED against Plaintiff and its counsel, jointly and severally, in the amount of $2,800. Payment is to be made within 10 days of this order.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: July 25, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.