Judge William A. Crowfoot, Case Number: 23AHCV00149, Date: 2023-09-11 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00149, Date: 2023-09-11 Tentative Ruling

On January 31, 2024, plaintiff Employee Retention Benefits Inc. (“Plaintiff”) filed these 8 discovery motions for orders compelling further responses from defendant Marisol Flores (“Flores”) and Atlas Voluntary Benefits Financial & Insurance Solutions, Inc. (“Atlas”). These motions were scheduled to be heard on various dates from June 11 to June 27, 2024. The requests at issue include Special Interrogatories (Set One), Form Interrogatories (Set One), Requests for Admission (Set One), and Requests for the Production of Documents and Tangible Things (Set One) propounded on Flores and Atlas separately.

On February 27, 2024, Plaintiff applied ex parte to advance and consolidate the hearing dates for these motions to an earlier date because trial is currently scheduled for July 1, 2024. The application was opposed by Flores and Atlas (collectively, “Defendants”) but was granted on February 28, 2024.

On March 15, 2024, Atlas and Flores (collectively, “Defendants”) filed opposition papers in which they represented that further responses had been served. Defendants argue that in light of these responses, Plaintiff’s motions should be denied. Defendants further argue that Plaintiff and Plaintiff’s counsel should be sanctioned $2,200 per motion for failing to meet and confer in good faith before filing these motions.

As an initial matter, the motions to compel further are DENIED as moot due to Defendant’s service of supplemental responses. Nevertheless, the Court is empowered to consider the issue of monetary sanctions pursuant to CRC 3.1348 and whether to impose $25,955 in sanctions against Defendants in favor of Plaintiff because the requested discovery was provided to Plaintiff after the motions were filed. The Court also considers whether $17,600 in sanctions against Plaintiff and Plaintiff’s counsel are appropriate for allegedly failing to meet and confer.

A party seeking to compel further responses to interrogatories, requests for production, or requests for admission is required to submit a “meet and confer declaration” with the motion. (Code Civ. Proc., §§ 2030.300, subd. (b)(1), 2031.310, subd. (b)(2), 2033.290, subd. (b)(1).) The meet and confer declaration must demonstrate that the party seeking to compel further responses made a “reasonable and good faith attempt at an informal resolution.” (Id., § 2016.040.) This must be done “in person, by telephone, or by letter.” (Id. § 2023.010, subd. (i).) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if a particular discovery motion requires a declaration stating facts showing that an attempt at informal resolution has been made, is a misuse of the discovery process and subject to sanctions. (Ibid.) Notwithstanding the outcome of the particular discovery motion, the court shall impose a sanction ordering any party or attorney who fails to confer as required to pay reasonable expenses, including attorney’s fees, incurred by anyone as a result of the conduct. (Code Civ. Proc., § 2023.020.)

This action was filed on January 23, 2023. On November 15, 2023, Plaintiff propounded the discovery requests on Flores and Atlas. Defendants’ deadline to respond was December 18, 2023, and defense counsel requested an extension to provide responses after the holidays. Plaintiff’s counsel provided a one-week extension so that responses would be due on December 27, 2023.

On December 27, 2023, Defendants served the discovery responses at issue in Plaintiff’s motions. On January 12, 2024, Plaintiff’s counsel sent an 18-page meet and confer letter requesting further responses and document production by January 19, 2024. (Berstein Decl.. Ex. I.) The letter was sent electronically and addressed to three attorneys: (1) Thomas F. Nowland, Esq., (2) Daniel A. Brodnax, and (3) Todd C. Janssen. (Ibid.) Mr. Jannsen declares that he was out of the office that week in back-to-back depositions and missed this email. (Jannsen Decl., ¶ 9.) No hard copy was sent via post and Plaintiff’s counsel did not follow up on the single meet and confer letter sent on January 12, 2024. (Ibid.) Defense counsel only found about Plaintiff’s issue with discovery responses when he was served with the motions on January 31. 2024. (Id., ¶ 10.) The same day, Mr. Janssen sent an email offering to send supplemental responses. (Janssen Decl., Ex. C.) No further message was received from Plaintiff’s counsel until Plaintiff gave notice of its intent to move ex parte to advance the hearing dates on February 27, 2024. (Janssen Decl., Ex. D.) On March 6, 2024, Plaintiff’s counsel sent a letter clarifying that the motions would not be withdrawn and that Plaintiff would maintain its request for sanctions.

Plaintiff argues that it fulfilled its responsibility to meet and confer in good faith by sending a meet and confer letter through email and contends that even if Mr. Jannsen were unavailable, two other attorneys were copied on the email attaching the meet and confer letter and should have responded. Plaintiff also emphasizes that they waited 12 days after the deadline in the meet-and-confer letter before filing the motion. (Berstein Suppl. Decl., ¶ 6.)

However, the email correspondence provided to the Court shows only one attorney, Mr. Jannsen, is involved in communicating with Plaintiff’s counsel. In those twelve days, Plaintiff’s counsel did not follow up on its single letter with a simple phone call or email to Mr. Jannsen, which undercuts any claim that there was a genuine attempt to meet and confer, especially when the 45-day deadline to file a motion to compel further was not even close to expiring.

The Court notes that Plaintiff raises issues about a proposed protective order, likely in an attempt to suggest that Defendants are being recalcitrant towards discovery. (Berstein Supp. Decl., ¶¶ 23-45.) This suggestion is ineffective and irrelevant, as the cited interactions took place after Plaintiff already filed its filed 8 motions to compel further. Plaintiff also claims that Defendants’ responses were purposefully deficient because they did not receive their requested two-week extension. A causal connection between the deadline and the quality of Defendants’ work product may exist, but in the Court’s experience, an additional week to accommodate the holidays, along with a meaningful dialogue between the parties regarding the discovery responses would likely have eliminated the need for these motions.

Therefore, while Plaintiff may have been substantially justified in taking issue with Defendants’ discovery responses, it would be unjust to impose sanctions on Defendants given Plaintiff’s paltry efforts to resolve the manner informally. Furthermore, in light of Plaintiff’s failure to confer in a reasonable and good faith attempt at informal resolution, the Court GRANTS Defendants’ requests for sanctions and imposes sanctions against Plaintiff and Plaintiff’s counsel, jointly and severally, in the reduced amount of $8,000 consisting of 2.5 hours at defense counsel’s hourly rate of $400 in response to each motion (consisting of the opposition brief, declaration, and separate statement) payable within 20 days of the date of this order.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.