Judge Thomas D. Long, Case 20STCV36803 2022-10-25 Tentative Ruling

On September 25, 2020, Plaintiff Central Metal, Inc. filed this action against Defendants Antonio Bernard Whitley aka Bernard Whitley; BW Transportation Solutions, Inc. dba BW Capital Solutions; Daniel E. Park; and Daniel E. Park Law Corporation.

Defendants Daniel E. Park and Daniel E. Park Law Corporation (collectively, “Defendants”) did not appear for the September 9, 2022 Informal Discovery Conference.

On September 22, 2022, Plaintiff filed motions to compel compliance with requests for production, motions to compel further responses to form interrogatories, motions to compel responses to special interrogatories, and motions to deem requests for admission admitted. Each motion also included a request for sanctions.

On March 18, 2022, Plaintiff propounded Request for Production, Set One, on Defendants. (Eanet Decl. ¶¶ 9-10.) Plaintiff received Defendants’ unverified responses without document production on May 2, 2021. (Eanet Decl. ¶¶ 11-12 & Exs. 9-10.) No documents had been produced as of September 22, 2022, when Plaintiff filed the motions to compel. (Eanet Decl. ¶ 24.)

A party may move to compel a further response to a demand for production of documents if the demanding party deems that the statement of compliance with the demand is incomplete; the representation of inability to comply is inadequate, incomplete, or evasive; or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) The court shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel further responses 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).)

Defendants contend that they served responses on October 11, 2022, the day before they filed their oppositions, and their lack of response was due to mistake, inadvertence, or excusable neglect. In reply, Plaintiff confirms that verified supplemental responses were served on October 11, 2022. (Eanet Reply Decl. ¶¶ 3-4.) Defendants responded to RFP Nos. 1-40 that “after a diligent search, Responding Party will provide all nonprivileged documents within [their] care, custody, or control that are responsive to this request.” However, according to Plaintiff, “there was no document production accompanying these Supplemental Responses, and to date, the Park Defendants have yet to produce a single responsive document.” (Reply at p. 2; see Eanet Reply Decl. ¶¶ 3-4.)

Because Defendants have not yet produced the documents, the motions are GRANTED. Defendants are ordered to produce the documents within 10 days.

On March 18, 2022, Plaintiff propounded Form Interrogatories on Defendants. (Eanet Decl. ¶¶ 5-6.) Plaintiff received Defendants’ incomplete responses on August 25, 2022. (Eanet Decl. ¶¶ 20-23 & Exs. 18-19.)

Daniel E. Park Law Corporation provided boilerplate objections and failed answer Form Rogs Nos. 3.1, 3.2, 3.3, 3.6, 4.1, 4.2, 12.1, 12.2, 12.3, 12.4, 12.6, 12.7, 13.1, 13.2, 15.1, 17.1, 50.1, 50.2, 50.3, 50.4, 50.5, and 50.6.

Daniel E. Park provided boilerplate objections and failed answer Form Rogs Nos. 2.3, 2.4, 2.7, 2.11, 2.12, 2.13, 4.1, 4.2, 12.1, 12.2, 12.3, 12.4, 12.6, 12.7, 13.1, 13.2, 15.1, 17.1, 50.1, 50.2, 50.3, 50.4, 50.5, and 50.6.

A party may move to compel a further response to interrogatories if the demanding party deems an answer to be evasive or incomplete, if an exercise of the option to produce documents is unwarranted or inadequate, or if objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) The court shall impose a monetary sanction against any party 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).)

However, the supplemental responses are still largely deficient. As Plaintiff notes (Reply at pp. 1-2), Defendants’ supplemental responses to the identified Form Rogs, as well as edited responses to unchallenged Form Rogs, state: “Without waiving the foregoing objections, Responding Party responds as follows: N/A. As discovery and investigation are continuing, the Responding Party reserves the right to supplement this response as necessary.”

Daniel E. Park Law Corporation’s supplemental responses do not include Form Rogs Nos. 3.1, 3.2, 3.3, and 3.6. (Eanet Reply Decl., Ex. C.) Construing the response of “N/A” as “no” or “none,” Daniel E. Park Law Corporation’s supplemental responses to Form Rogs Nos. 4.1, 4.2, 12.1, 12.2, 12.3, 12.4, 12.6, 12.7, 13.1, 13.2, 50.3, 50.4, 50.5, and 50.6 would be sufficient; however, the defendant must actually state “no,” “none,” or similar response if that is accurate. Daniel E. Park Law Corporation’s supplemental responses of “N/A” to Form Rogs Nos. 15.1, 17.1, 50.1, and 50.2 are insufficient.

Daniel E. Park’s supplemental responses to Form Rog No. 50.2 is substantive and sufficient. (Eanet Reply Decl., Ex. D.) Construing the response of “N/A” as “no” or “none,” Daniel E. Park’s supplemental responses to Form Rogs Nos. 2.3, 2.4, 2.11, 2.12, 2.13, 4.1, 4.2, 12.1, 12.2, 12.3, 12.4, 12.6, 13.1, 13.2, 50.3, 50.4, 50.5, and 50.6 would be sufficient; however, the defendant must actually state “no,” “none,” or similar response if that is accurate. Daniel E. Park’s supplemental responses of “N/A” to Form Rogs Nos. 2.7, 12.7, 15.1, 17.1, 50.1 are insufficient.

The initial responses and supplemental responses are not substantially compliant, and Defendants have not shown that their failure to serve timely responses was the result of mistake, inadvertence, or excusable neglect. Defendants’ counsel declares only that he “has had an extremely heavy workload, having had five trials within the last few months.” (Park Decl. ¶ 4.) But Plaintiff’s counsel provided Defendants with numerous extensions of time through August 22, 2022. (Eanet Decl. ¶¶ 15-18 & Exs. 15.) Defendants did not provide their first responses until August 25, 2022. (Eanet Decl. ¶¶ 20-21.) Accordingly, they have waived objections. (Code Civ. Proc., § 2030.290, subd. (a).)

The motions are GRANTED. Defendants are ordered to provide further responses, without objection, within 10 days.

On March 18, 2022, Plaintiff propounded Special Interrogatories, Set One on Defendants. (Eanet Decl. ¶¶ 3-4.) As of September 22, 2022, Plaintiff has not received any responses. (See Eanet Decl. ¶¶ 12, 22, 24.)

When a party fails to serve timely responses to interrogatories, the court may make an order compelling responses. (Code Civ. Proc., § 2030.290.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., § 2030.290, subd. (a).) The court shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a 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., § 2030.290, subd. (c).)

In reply, Plaintiff notes that the responses to Special Rogs Nos. 1, 4, 5, 8, 10, 11, 12, 14, 15, 16, 18, 19, 20, 24, and 28 state: “Without waiving the foregoing objections, Responding Party responds as follows: N/A. As discovery and investigation are continuing, Responding Party reserves the right to supplement this response as necessary.”

Defendants did not answer Special Rogs Nos. 9, 13, and 17. (Eanet Reply Decl., Exs. E-F.) Without those responses, the related responses to Special Rogs. No. 10, 11, 12, 14, 15, 16, 18, 19, and 20 are insufficient. Construing the response of “N/A” as “no” or “none,” Defendants’ responses to Special Rogs Nos. 1, 5, 24, and 28 would be sufficient; however, the defendant must actually state “no,” “none,” or similar response if that is accurate. A response of “N/A” is sufficient for Special Rogs Nos. 4, 8 if the responses to Special Rogs. Nos. 1, 5 is in fact “no.”

The responses are not substantially compliant, and Defendants have not shown that their failure to serve timely responses was the result of mistake, inadvertence, or excusable neglect. Defendants’ counsel declares only that he “has had an extremely heavy workload, having had five trials within the last few months.” (Park Decl. ¶ 4.) But Plaintiff’s counsel provided Defendants with numerous extensions of time through August 22, 2022. (Eanet Decl. ¶¶ 15-18 & Exs. 15.) Defendants did not provide their responses until October 11, 2022. (Eanet Reply Decl. ¶¶ 7-8.) Accordingly, they have waived objections. (Code Civ. Proc., § 2030.290, subd. (a).)

The motions are GRANTED. Defendants are ordered to provide further responses, without objection, within 10 days.

On March 18, 2022, Plaintiff propounded Requests for Admission on Defendants. (Eanet Decl. ¶¶ 7-8.) As of September 22, 2022, Plaintiff has not received any responses. (See Eanet Decl. ¶¶ 12, 22, 24.)

Where a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The party who failed to respond waives any objections, unless the court grants them relief from the waiver, upon a showing that the party has subsequently served a substantially compliant response and that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2033.280, subd. (a).) The court shall grant a motion to deem admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280, subd. (c).) A monetary sanction against the party whose failure to serve a timely response to requests for admission is mandatory. (Code Civ. Proc., § 2033.280, subd. (c).)

Plaintiff notes that the responses include “General Objections” incorporated into each response, as well as separate objections for RFA Nos. 11, 14, 15, 19, 20, 23, 24, 25, 26, 28, and 29. (See Eanet Reply Decl., Exs. G-H.) Defendants’ counsel declares only that he “has had an extremely heavy workload, having had five trials within the last few months.” (Park Decl. ¶ 4.) Plaintiff’s counsel provided Defendants with numerous extensions of time through August 22, 2022. (Eanet Decl. ¶¶ 15-18 & Exs. 15.) Defendants did not provide their responses until October 11, 2022. (Eanet Reply Decl. ¶¶ 7-8.) Accordingly, they have waived objections. (Code Civ. Proc., § 2030.290, subd. (a).)

Plaintiff also notes that the responses to RFA Nos. 11, 14, 15, 19, 20, 23, 24, 25, 26, 28, and 29 state: “Without waiving any of the objections, Responding Party responds as follows: Responding Party objects that this request is, among other things and without limitations, lacking foundation, and calls for speculation, legal conclusion, and legal and expert opinion on Plaintiffs contentions or claims. As discovery and investigation are continuing, Responding Party reserves the right to supplement this response as necessary.” (See Eanet Reply Decl., Exs. G-H.) There are no admissions or denials to these RFAs, and there is nothing improper about the RFAs. (See Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529 [“[A] request may ask a party for a legal conclusion.”].) The responses to these RFAs are therefore not substantially compliant.

The motions are GRANTED IN PART. RFA Nos. 11, 14, 15, 19, 20, 23, 24, 25, 26, 28, and 29 are deemed admitted by Defendants.

Each of the eight motions includes a request for sanctions. Plaintiff seeks a total of $11,970.00 in sanctions ($1,496.25 per motion). (Eanet Decl. ¶ 28.)

The requested sanctions include eight filing fees at $60.00 each ($240.00); 12 hours billed by attorney Laurel Champion at $495 ($5,940.00); 3 hours billed by attorney Matthew Eanet at $650 ($1,950.00); and 6 hours anticipatorily billed for the reply and hearing by attorney Matthew Eanet at $650 ($3,840.00).

Plaintiff filed four, not eight, consolidated replies, plus one omnibus declaration. The Court therefore finds that the 6 hours anticipatorily billed is excessive, and a reasonable amount of time for the replies and hearing is 4 hours. Additionally, the hourly rate of $650 is excessive, and a reasonable hourly rate is $495.

Using these adjusted amounts, a reasonable amount of attorney fees and costs incurred for the eight motions is $9,645.00 ($1,205.62 or $1,205.63 per motion). This consists of eight filing fees at $60.00 each ($240.00); 12 hours billed by attorney Laurel Champion at $495 ($5,940.00); 3 hours billed by attorney Matthew Eanet at $495 ($1,485.00); and 4 hours for the reply and hearing by attorney Matthew Eanet at $495 ($1,980.00).

After Defendants’ May 2, 2022 responses to the Requests for Production, Plaintiff’s counsel sent a letter detailing the deficiencies. (Eanet Decl. ¶¶ 12-13 & Ex. 11.) After not receiving a response, on June 17, 2022, Plaintiff’s counsel emailed Defendants’ counsel. (Eanet Decl. ¶ 14.) The parties agreed to an extension of time before Plaintiff filed motions to compel. (Eanet Decl. ¶ 14 & Ex. 12.) On June 23, 2022, Defendants’ counsel indicated that they would provide amended responses, and the parties agreed to another three-week extension. (Eanet Decl. ¶ 15 & Ex. 13.) After receiving nothing further, Plaintiff’s counsel contacted defense counsel again on July 19, 2022. (Eanet Decl. ¶ 16.) The next day, Defendants’ counsel agreed that amended responses would be provided “next week.” (Eanet Decl. ¶ 16 & Ex. 14.) On August 1, 2022, without receiving responses, Plaintiff’s counsel left a voicemail for Defendants’ counsel and sent an email. (Eanet Decl. ¶ 17 & Ex. 15.) Two days later, Defendants’ counsel proposed another extension of time. (Eanet Decl. ¶ 17 & Ex. 15.) Plaintiff’s counsel agreed, but they also began scheduling an Informal Discovery Conference for the next month. (Eanet Decl. ¶ 18.) Defendants’ counsel confirmed receipt of the IDC information. (Eanet Decl. ¶ 18 & Ex. 16.) Plaintiff still did not receive responses by August 22, 2022. (Eanet Decl. ¶ 19.) Defendants’ counsel replied that he was out of state on business and would have responses two days later. (Eanet Decl. ¶ 19 & Ex. 17.) After Plaintiff received Defendants’ responses to Form Interrogatories, Set One on August 25, 2022, Plaintiff’s counsel sent an email about the outstanding discovery issues. (Eanet Decl. ¶¶ 20-23 & Ex. 20.)

Plaintiff’s counsel filed and served an IDC Statement on September 1, 2022. (Eanet Decl. ¶ 25.) Defendants’ counsel did not appear for the September 9, 2022 IDC. (Eanet Decl. ¶ 26.) Defendants provide no explanation for their failure to appear at the IDC, at which time much of this motion practice could have been avoided.

Defendants’ counsel declares that “at no stage [did he] ever represented that they were not willing to supplement responses. Defendants were always willing to meet and confer to reconcile the current discovery dispute amicably.” (Park Decl. ¶ 4.) That may be true, but after months of extensions of time, Defendants still failed to provide full and compliant responses, and they failed to appear at the IDC.

Defendants’ counsel also declares that he “answered Plaintiff’s correspondence and asked for an extension to provide amended responses” because he “has had an extremely heavy workload, having had five trials within the last few months.” (Park Decl. ¶ 3.) However, on June 23, 2022, Wil Rios emailed Plaintiff’s counsel stating that he, not Mr. Park, would be “in charge of this matter.” (Eanet Decl., Ex. 13.) Especially when there was another associate working on this case, Mr. Park’s other trials do not justify Defendants’ failure to timely serve responses pursuant to the many agreed-upon extensions, and they do not justify the deficient and non-compliant responses that were eventually served.

For the Requests for Production, Defendants have not shown that they acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (See Code Civ. Proc., § 2031.310, subd. (h).) The Court therefore awards Plaintiff sanctions of $1,205.62 against Defendant Daniel E. Park Law Corporation and $1,205.63 against Defendant Daniel E. Park.

For the Form Interrogatories, Defendants have not shown that they acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.300, subd. (d).) The Court therefore awards Plaintiff sanctions of $1,205.62 against Defendant Daniel E. Park Law Corporation and $1,205.63 against Defendant Daniel E. Park.

For the Special Interrogatories, Defendants have not shown that they acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.290, subd. (c).) The Court therefore awards Plaintiff sanctions of $1,205.63 against Defendant Daniel E. Park Law Corporation and $1,205.62 against Defendant Daniel E. Park.

For the Requests for Admission, Defendants’ failure to serve a timely response requires a mandatory sanction. (Code Civ. Proc., § 2033.280, subd. (c).) The Court therefore awards Plaintiff sanctions of $1,205.63 against Defendant Daniel E. Park Law Corporation and $1,205.62 against Defendant Daniel E. Park.

In sum, the Court awards Plaintiff sanctions of $4,822.50 against Defendant Daniel E. Park Law Corporation and $4,822.50 against Defendant Daniel E. Park. Defendants are to pay these sanctions to Plaintiff’s counsel within 10 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court