Judge Walter P. Schwarm, Case 30-2021-01177079 2022-08-16 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01177079, Date: 2022-08-16 Tentative Ruling

Motion No. 1:

Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Lincoln Marini; and Request for Sanctions (Motion), filed on 3-29-22 under ROA No. 149, is DENIED as MOOT and GRANTED as to $945.00 in sanctions. (The Notice for this Motion (Notice) was filed on 3-29-22 under ROA No. 147.)

Code of Civil Procedure section 2031.310 provides in part, “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶] (3) An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with each of the following: [¶] (1) the motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. . . [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

Plaintiff’s Omnibus Supplemental Brief (PSupp.), filed on 7-21-22 under ROA No. 302, states, “Since BCVE supplemented its responses to the Requests, the sole issue to be determined at the hearing on the Motions is the issue of sanctions.” (PSupp.; 4:2-3.) Plaintiff seeks sanctions for “. . . misuse of the discovery process . . . .” (PSupp.; 8:25-26.)

Defendants’ (Bay Cliff Village East Homeowners Association, Lincoln Marini, Marilyn David, Susan Pope, Ruth Newby erroneously named and sued as Ruth Newbie, Vince Randazzo, Thu Nguyen, Michael Waisgerber, Kate Charles, Dorothy Villa, John Rhinehart, and Sue Creamer) Consolidated Opposition (Opposition), filed on 8-3-22 under ROA No. 325, states, “Now that the Motions are indisputably moot, instead of seeking sanctions for a lack of substantial justification in opposing the Motions, Plaintiffs seek sanctions for delay constituting an alleged ‘misuse of the discovery process.’ (Supplemental Brief at 8:25-26.) But that was not the basis for the sanctions sought in the Motions. The Motions sought sanctions for opposing the Motions without substantial justification, nothing more.” (Opposition; 11:15-19.) The Opposition also states, “Plaintiffs’ sanctions request should be denied. Plaintiffs ignore that they agreed to the extensions of which they now complain, and in fact proposed many of them themselves. Plaintiffs knew and accepted that documents would be produced in batches as they were located. Plaintiffs about-face claiming the delay was a ‘misuse of the discovery process’ is disingenuous, and frankly misrepresents Plaintiffs’ involvement in, and acceptance of, the timing of the responses and production every step of the way.” (Opposition; 4:9-14.)

Code of Civil Procedure section 2023.040, states, “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

The Motion seeks sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (h). (Notice; 2:1-4, and Motion 10:21-11:10.)

London v. Dri-Honing Corporation (2004) 117 Cal.App.4th 999, 1006-1007 (London), states, “The general structure of California's current discovery act, the Civil Discovery Act of 1986 (hereafter the Discovery Act), supports this conclusion for two reasons. First, there is an emphasis on imposing discovery monetary sanctions against abusive parties. [Citations.] The policy is that monetary sanctions “shall” be imposed ‘unless’ shown to be unjustified. [Citation.] By making it more difficult to request and impose such sanctions, Dri–Honing's interpretation runs counter to this policy. [¶] Second, the Discovery Act significantly changed how discovery sanctions were codified. Under the original discovery act, the statutes governing particular discovery methods did not discuss sanctions. [Citation.] Rather, a single statute defined the different types of discovery sanctions and explained which of these sanctions were available for each discovery abuse. [Citation.] [¶] The Discovery Act takes a different approach. Initially, it has a statute, section 2023, which generally identifies the possible discovery abuses and the types of sanctions that exist. (§ 2023, subds. (a), (b).) Then, each statute that governs a particular discovery method specifies which of those sanctions applies to the particular abuses of that method. (See, e.g., §§ 2025, subds. (e)(3), (j)(1)-(3), (n)-(o), (q)(2) [depositions], 2030, subds. (e), (k), (l ), (m) [interrogatories], 2031, subds. (f), (l ), (m), (n) [document inspection], 2032, subds. (c)(6)-(7), (f), (g), (h), (j) [physical and mental examinations], 2033, subds. (e), (k), (l ) [requests for admissions], 2034, subds. (e), (i), (k), (l ) [exchange of expert witness information]; 2 Hogan & Weber, supra, § 15.2, p. 270.) Given the unique parameters of each discovery method, discovery sanctions are available under different circumstances and for different types of abuses in each method's statute. [¶] This structure suggests that the section 2023, subdivision (b) phrase ‘[t]o the extent authorized by the section governing any particular discovery method . . ., the court . . . may impose the following sanctions’ simply refers to whether the discovery method statute authorizes a type of sanction (i.e., monetary, issue, evidence, terminating, or contempt) for a particular misuse of the discovery method. (§ 2023, subd. (b).) This interpretation is further supported by language in subdivision (b)(1) of section 2023, stating that ‘[i]f a monetary sanction is authorized by any provision of this article, the court shall impose that sanction’ unless it is unjust to do so. This language works in tandem with its companion provision at subdivision (b) of section 2023, which states, ‘[t]o the extent authorized by the section governing any particular discovery method[.]’ [¶] This interpretation is also supported by case law. In both Kuhns v. State of California (1992) 8 Cal.App.4th 982, 10 Cal.Rptr.2d 773 (Kuhns ) and Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1 Cal.Rptr.2d 222 (Zellerino ), the language of section 2023, subdivision (b) involving the phrase ‘to the extent authorized’ was used not to invoke procedural time limits of the governing discovery method statute, but to identify what types of sanctions a given discovery method statute authorized for a particular abuse.” (Italics in London.)

Code of Civil Procedure section 2023.030 states in part, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: [¶] (a) The 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. 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. [¶] (b) The 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. . . .”

California Rules of Court, rule 3.1348(a), states, “(a) Sanctions despite no opposition [¶] The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Emphasis in Cal. Rules of Court, rule 3.1348(a).)

Code of Civil Procedure section 2023.030 provides that it is a misuse of the discovery process when a party engages in conduct that violates a discovery method statute. Code of Civil Procedure section 2031.310, subdivision (h), is a discovery method statute that falls within the meaning of Code of Civil Procedure section 2023.030, subdivisions (a) and (b). Therefore, the court finds that Defendants received proper notice that Plaintiff sought a monetary sanction for misuse of the discovery process. Further, the court find that that the Notice identified Defendant—Lincoln Marini as the party against whom Plaintiff sought a monetary sanction within the meaning of Code of Civil Procedure section 2030.040.

Here, Plaintiff gave Defendant—Lincoln Marini several extensions to provide further responses. (Romans Decl., ¶¶ 6-12.) The final date for an extension of the time to provide further responses was 3-14-22. (Romans Decl., ¶ 22.) As of the date of the declaration in support of the Motion, Defendant—Lincoln Marini had not provided the further responses. (Romans Decl., ¶ 14.) The parties adequately met and conferred. (Romans Decl., ¶¶ 5-13.)

Although the parties may have agreed for Defendants to provide the document production in “batches,” Defendant—Lincoln Marini did not provide the further responses by 3-14-22. After waiting approximately 6-7 months (from 9-8-21 to 3-14-22), Defendant—Lincoln Marini still had not produced further responses. (Romans Decl., ¶¶ 5-14.) This delay caused Plaintiff to bring this motion. Based on the delay in providing the further responses, the court finds that a monetary sanction is appropriate pursuant to California Rules of Court, rule 3.1348(a). The court awards a monetary sanction of $945.00 against Defendant—Lincoln Marini and in favor of Plaintiff pursuant to Code of Civil Procedure section 2031.310, subdivision (h), and California Rules of Court, rule 3.1348(a). (Romans Decl., ¶ 15.)

Based on the above, the court DENIES Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Lincoln Marini; and Request for Sanctions, filed on 3-29-22 under ROA No. 149, as MOOT, but GRANTS the Motion as to a monetary sanction.

Plaintiff is to give notice.

Motion No. 2:

Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Ruth Newby; and Request for Sanctions (Motion), filed on 3-29-22 under ROA No. 159, is DENIED as MOOT and GRANTED as to $355.00 in sanctions. (The Notice for this Motion (Notice) was filed on 3-29-22 under ROA No. 156.)

The Motion seeks sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (h). (Notice; 2:1-4, and Motion 10:21-11:10.)

Here, Plaintiff gave Defendant—Ruth Newby several extensions to provide further responses. (Romans Decl., ¶¶ 6-12.) The final date for an extension of the time to provide further responses was 3-14-22. (Romans Decl., ¶ 12.) As of the date of the declaration in support of the Motion, Defendant—Ruth Newby had not provided the further responses. (Romans Decl., ¶ 14.) The parties adequately met and conferred. (Romans Decl., ¶¶ 5-13.)

Although the parties may have agreed for Defendants to provide the document production in “batches,” Defendant—Ruth Newby did not provide the further responses by 3-14-22. After waiting approximately 6-7 months (from 9-8-21 to 3-14-22), Defendant—Ruth Newby still had not produced further responses. (Romans Decl., ¶¶ 5-14.) This delay caused Plaintiff to bring this motion. Based on the delay in providing the further responses, the court finds that a monetary sanction is appropriate pursuant to California Rules of Court, rule 3.1348(a). The court awards a monetary sanction of $355.00 against Defendant—Lincoln Marini and in favor of Plaintiff pursuant to Code of Civil Procedure section 2031.310, subdivision (h), and California Rules of Court, rule 3.1348(a). (Romans Decl., ¶ 15.) The court notes that this Motion is substantially similar to Motion No. 1.

Based on the above, the court DENIES Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Ruth Newby; and Request for Sanctions, filed on 3-29-22 under ROA No. 159, as MOOT, but GRANTS the Motion as to a monetary sanction.

Plaintiff is to give notice.

Motion No. 3:

Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Marilyn David; and Request for Sanctions (Motion), filed on 3-29-22 under ROA No. 168, is DENIED as MOOT and GRANTED as to $355.00 in sanctions. (The Notice for this Motion (Notice) was filed on 3-29-22 under ROA No. 165.)

The Motion seeks sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (h). (Notice; 2:1-4, and Motion 10:20-11:10.)

Here, Plaintiff gave Defendant—Marilyn David several extensions to provide further responses. (Romans Decl., ¶¶ 6-12.) The final date for an extension of the time to provide further responses was 3-14-22. (Romans Decl., ¶ 12.) As of the date of the declaration in support of the Motion, Defendant—Marilyn David had not provided the further responses. (Romans Decl., ¶ 14.) The parties adequately met and conferred. (Romans Decl., ¶¶ 5-13.)

Although the parties may have agreed for Defendants to provide the document production in “batches,” Defendant—Marilyn David did not provide the further responses by 3-14-22. After waiting approximately 6-7 months (from 9-8-21 to 3-14-22), Defendant—Marilyn David still had not produced further responses. (Romans Decl., ¶¶ 5-14.) This delay caused Plaintiff to bring this motion. Based on the delay in providing the further responses, the court finds that a monetary sanction is appropriate pursuant to California Rules of Court, rule 3.1348(a). The court awards a monetary sanction of $355.00 against Defendant—Marilyn David and in favor of Plaintiff pursuant to Code of Civil Procedure section 2031.310, subdivision (h), and California Rules of Court, rule 3.1348(a). (Romans Decl., ¶ 15.) The court notes that this Motion is substantially similar to Motion Nos. 1 and 2.

Based on the above, the court DENIES Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Marilyn David; and Request for Sanctions, filed on 3-29-22 under ROA No. 168, but GRANTS the Motion as to a monetary sanction.

Plaintiff is to give notice.

Motion No. 4:

Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Susan Pope; and Request for Sanctions (Motion), filed on 3-29-22 under ROA No. 174, is DENIED as MOOT and GRANTED as to $355.00 in sanctions. (The Notice for this Motion (Notice) was filed on 3-29-22 under ROA No. 173.)

The Motion seeks sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (h). (Notice; 2:1-4, and Motion 10:10-25.)

Here, Plaintiff gave Defendant—Susan Pope several extensions to provide further responses. (Romans Decl., ¶¶ 6-12.) The final date for an extension of the time to provide further responses was 3-14-22. (Romans Decl., ¶ 12.) As of the date of the declaration in support of the Motion, Defendant—Susan Pope had not provided the further responses. (Romans Decl., ¶ 14.) The parties adequately met and conferred. (Romans Decl., ¶¶ 5-13.)

Although the parties may have agreed for Defendants to provide the document production in “batches,” Defendant—Susan Pope did not provide the further responses by 3-14-22. After waiting approximately 6-7 months (from 9-8-21 to 3-14-22), Defendant—Susan Pope still had not produced further responses. (Romans Decl., ¶¶ 5-14.) This delay caused Plaintiff to bring this motion. Based on the delay in providing the further responses, the court finds that a monetary sanction is appropriate pursuant to California Rules of Court, rule 3.1348(a). The court awards a monetary sanction of $355.00 against Defendant—Susan Pope and in favor of Plaintiff pursuant to Code of Civil Procedure section 2031.310, subdivision (h), and California Rules of Court, rule 3.1348(a). (Romans Decl., ¶ 15.) The court notes that this Motion is substantially similar to Motion Nos. 1, 2, and 3.

Based on the above, the court DENIES Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Susan Pope; and Request for Sanctions (Motion), filed on 3-29-22 under ROA No. 174, as MOOT, but GRANTS the Motion as to a monetary sanction.

Plaintiff is to give notice.

Motion No. 5:

Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Vince Randazzo; and Request for Sanctions (Motion), filed on 3-29-22 under ROA No. 185, is DENIED as MOOT and GRANTED as to $355.00 in sanctions. (The Notice for this Motion (Notice) was filed on 3-29-22 under ROA No. 182.)

The Motion seeks sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (h). (Notice; 2:1-4, and Motion 10:22-11:10.)

Here, Plaintiff gave Defendant— Vince Randazzo several extensions to provide further responses. (Romans Decl., ¶¶ 6-12.) The final date for an extension of the time to provide further responses was 3-14-22. (Romans Decl., ¶ 12.) As of the date of the declaration in support of the Motion, Defendant— Vince Randazzo had not provided the further responses. (Romans Decl., ¶ 14.) The parties adequately met and conferred. (Romans Decl., ¶¶ 5-13.)

Although the parties may have agreed for Defendants to provide the document production in “batches,” Defendant—Vince Randazzo did not provide the further responses by 3-14-22. After waiting approximately 6-7 months (from 9-8-21 to 3-14-22), Defendant—Vince Randazzo still had not produced further responses. (Romans Decl., ¶¶ 5-14.) This delay caused Plaintiff to bring this motion. Based on the delay in providing the further responses, the court finds that a monetary sanction is appropriate pursuant to California Rules of Court, rule 3.1348(a). The court awards a monetary sanction of $355.00 against Defendant—Vince Randazzo and in favor of Plaintiff pursuant to Code of Civil Procedure section 2031.310, subdivision (h), and California Rules of Court, rule 3.1348(a). (Romans Decl., ¶ 15.) The court notes that this Motion is substantially similar to Motion Nos. 1, 2, 3, and 4.

Based on the above, the court DENIES Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Vince Randazzo; and Request for Sanctions, filed on 3-29-22 under ROA No. 185, as MOOT, but GRANTS the Motion as to a monetary sanction.

Plaintiff is to give notice.

Motion No. 6:

Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Baycliff Village East Homeowners Association; and Request for Sanctions (Motion), filed on 4-1-22 under ROA No. 196, is DENIED as MOOT. (The Notice for this Motion (Notice) was filed on 3-29-22 under ROA No. 197.)

The Motion seeks sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (h). (Notice; 2:1-4, and Motion 11:7-23.)

Here, Plaintiff gave Defendant—Baycliff Village East Homeowners Association several extensions to provide further responses. (Romans Decl., ¶¶ 10-17.) Plaintiff did not receive further responses to this discovery request from Defendant—Baycliff Village East Homeowners Association until 4-18-22. (Romans Decl., ¶ 19.) Plaintiff received further supplemental responses to this discovery request from Defendant—Baycliff Village East Homeowners Association on 6-28-22. (Romans Decl., ¶ 21.) The final date for an extension of the time to provide further responses was 2-14-22. (Romans Decl., ¶ 16.) The parties sufficiently met and conferred. (Romans Decl., ¶¶ 6-19.)

Although the parties may have agreed for Defendants to provide the document production in “batches,” Defendant—Baycliff Village East Homeowners Association did not provide the further responses by 2-14-22. After waiting approximately 11 months (from 5-13-21 to 4-18-22), Defendant—Baycliff Village East Homeowners Association still had not produced further responses. (Romans Decl., ¶¶ 6-19.) This delay caused Plaintiff to bring this motion. Based on the delay in providing the further responses, the court finds that a monetary sanction is appropriate pursuant to California Rules of Court, rule 3.1348(a). The court, however, does not award a monetary sanction because the declaration in support of the Motion does not provide evidence of counsel’s hourly rate or the number of hours expended by counsel on this Motion.

Based on the above, the court DENIES Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. One) from Baycliff Village East Homeowners Association; and Request for Sanctions, filed on 4-1-22 under ROA No. 196, as MOOT.

Plaintiff is to give notice.

Motion No. 7:

Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. Three) from Baycliff Village East Homeowners Association; and Request for Sanctions (Motion), filed on 4-1-22 under ROA No. 203, is DENIED as MOOT. (The Notice for this Motion (Notice) was filed on 3-29-22 under ROA No. 202.)

The Motion seeks sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (h). (Notice; 2:1-4, and Motion 11:14-15:2.)

Here, Plaintiff gave Defendant—Baycliff Village East Homeowners Association extensions to provide further responses. (Romans Decl., ¶¶ 25-29.) The final date for an extension of the time to provide further responses was 2-14-22. (Romans Decl., ¶ 28.) Plaintiff did not receive further responses to this discovery request from Defendant—Baycliff Village East Homeowners Association until 4-18-22. (Romans Decl., ¶ 31.) Plaintiff received further supplemental responses to this discovery request from Defendant—Baycliff Village East Homeowners Association on 6-28-22. (Romans Decl., ¶ 33.) The parties sufficiently met and conferred. (Romans Decl., ¶¶ 25-30.)

Although the parties may have agreed for Defendants to provide the document production in “batches,” Defendant—Baycliff Village East Homeowners Association did not provide the further responses by 2-14-22. After waiting approximately 4 months (from 12-27-21 to 4-18-22), Defendant—Baycliff Village East Homeowners Association still had not produced further responses. (Romans Decl., ¶¶ 25-31.) This delay caused Plaintiff to bring this motion. Based on the delay in providing the further responses, the court finds that a monetary sanction is appropriate pursuant to California Rules of Court, rule 3.1348(a). The court, however, does not award a monetary sanction because the declaration in support of the Motion does not provide evidence of counsel’s hourly rate or the number of hours expended by counsel on this Motion.

Based on the above, the court DENIES Plaintiff’s (Drew Alexander) Motion to Compel Further Responses to Requests for Production, (Set No. Three) from Baycliff Village East Homeowners Association; and Request for Sanctions, filed on 4-1-22 under ROA No. 203, as MOOT.

Plaintiff is to give notice.