Judge: Thomas D. Long, Case: 22STCV13626, Date: 2023-02-02 Tentative Ruling

Case Number: 22STCV13626    Hearing Date: February 2, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On July 25, 2022, Plaintiff Immigrant Rights Defense Council, LLC filed a first amended complaint (“FAC”) against Defendant Carlos A. Lainez for Violation of the Immigration Consultant Act.

On October 27, 2022, the Court granted Plaintiff’s motion to compel a further response to Form Interrogatory No. 17.1 and Plaintiff’s motion to compel further responses to Requests for Production (“RFP”) Nos. 1, 2, 4, 6, and 7.  The Court ordered that the supplemental responses be provided within ten days.  The Court also awarded Plaintiff sanctions.

MOTIONS FOR TERMINATING SANCTIONS

On December 23, 2022, Plaintiff filed two motions for terminating sanctions: one based on the supplemental response to Form Interrogatory No. 17.1; and one based on the supplemental responses to RFP Nos. 1, 2, 4, 6 and 7.  Plaintiff seeks a terminating sanction striking Defendant’s answer and entering default against him, or in the alternative, an order compelling Defendant to comply with the Court’s October 27, 2022 order.  (Defendant has not yet filed an answer, as his demurrer to the FAC remains pending.)  Plaintiff also seeks monetary sanctions.

A court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process.  (Code Civ. Proc., § 2023.030, subd. (d).)  Misuse of the discovery process includes failing to respond to discovery, unjustifiably making unmeritorious objections to discovery, and disobeying a court order to provide discovery.  (Code Civ. Proc., § 2023.010.)  “The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’  [Citation.]  Generally, ‘[a] decision to order terminating sanctions should not be made lightly.  But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’”  (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.)

On October 27, 2022, the Court ordered that supplemental responses be served within ten days.  Defendant electronically served supplemental responses on November 7, 2022, but Plaintiff contends that the responses are inadequate and not code-compliant.

Form Interrogatory No. 17.1 asks Defendant to provide certain information for each response to the requests for admission (“RFA”) that is not an unqualified admission.  RFA Nos. 1-14 asked Defendant to admit that he violated various code sections.  RFA No. 15 asked Defendant to admit that Plaintiff is entitled to a preliminary injunction, and RFA No. 16 asked Defendant to admit that Plaintiff is entitled to a permanent injunction.  Defendant denied all of these RFAs.  Plaintiff argues that Defendant’s single response to Form Interrogatory No. 17.1 “lump[s] together all 16 substantially different admissions into a single response,” and it “is not as complete and straightforward as possible and evades providing substantive responses as to each separate admission.”

In his supplemental responses to RFP Nos. 1, 2, 6, and 7, Defendant stated that “After a diligent search, Defendant is not in possession of any documents identified in Request for Production [number].”  For RFP No. 4, Defendant referred to an exhibit.

Plaintiff has not shown Defendant’s willful violation of discovery orders or his abuse of the discovery process.  Defendant has complied with the Court’s October 27, 2022 order.  Defendant did provide supplemental responses to each part of Form Interrogatory No. 17.1, even if he provided a single answer applicable to all of the RFAs.  Similarly, Defendant’s supplemental responses to the RFPs are complete responses.  Plaintiff’s disbelief that there are no further documents and its unsupported contention that Defendant “is deliberately withholding this discovery” (Motions at p. 9) are also not grounds for terminating sanctions.  If Plaintiff finds those responses deficient or not code-compliant, Plaintiff’s remedy is to follow the process for compelling further responses.  But this motion requests only terminating sanctions or an order compelling compliance with the Court’s October 27, 2022 order to provide supplemental responses.  Defendant has provided supplemental responses.

Under the totality of the circumstances, the Court cannot conclude that less severe sanctions would be ineffective and that terminating sanctions are warranted.

The motions for terminating sanctions and monetary sanctions are DENIED.

MOTION TO COMPEL RESPONSES TO JUDGMENT DEBTOR INTERROGATORIES

Judgment debtor interrogatories may be enforced in the same manner as interrogatories in the civil action.  (Code Civ. Proc., § 708.020, subd. (c).)  When a party fails to serve timely responses to discovery requests, the court may make an order compelling responses.  (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)   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), 2031.300, subd. (a).)  Sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust.  (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)

According to Plaintiff, Defendant complied with the Court’s October 27, 2022 order to pay the $2,078.35 sanction for the motion to compel further responses to the RFPs, but he did not comply with the order to pay the $1,078.35 sanction for the motion to compel a further response to the form interrogatory.  (Motion at p. 3.)  Therefore, Plaintiff propounded Judgment Debtor Interrogatories, Set One, on November 10, 2022.  (Ibid.)  Defendant did not timely respond, and Defendant’s counsel “unequivocally stated that Defendant would not be responding, at all, to the interrogatories.”  (Ibid.)  On December 23, 2022, Plaintiff filed a motion to compel Defendant’s responses to the judgment debtor interrogatories.

The Court’s original order set forth sanctions of $1,078.35 for the motion to compel further responses to the form interrogatory and sanctions of $2,078.35 for the motion to compel further responses to the RFPs.  However, the Court later issued a nunc pro tunc order, correcting the amount of sanctions for the motion to compel further responses to the RFPs to conform with the Court’s order at the hearing.

Accordingly, the correct amount of sanctions is $1,078.35 plus $1,000.00, for a total of $2,078.35.  It is undisputed that this sanction has already been paid.  (Motion at p. 3; Opposition at p. 3; Friedman Decl. ¶ 2.)

The motion to compel responses is DENIED AS MOOT.

Moving party to give notice.

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.

         Dated this 2nd day of February 2023