Judge: Yolanda Orozco, Case: 21STCV27289, Date: 2022-08-18 Tentative Ruling

Case Number: 21STCV27289    Hearing Date: August 18, 2022    Dept: 31

PLAINTIFFS’ REQUEST FOR SANCTIONS RELATING TO MOTION TO COMPEL FURTHER RESPONSES TO DOCUMENT DEMANDS IS GRANTED

Background 

            On July 26, 2021, Kenneth McBride and Waiting for My Ship to Come In (collectively, “Plaintiffs”) initiated this action by filing a Complaint against Cohen Pagano Accountancy, Inc., Stanley M. Ingel, Laurand Management Co., Inc., and Andrea M. Link (collectively, “Defendants”).  Plaintiffs’ Complaint arises from allegations of professional malpractice committed by Defendants, who are each certified public accountants or certified accounting firms which Plaintiffs retained for the purposes of providing accounting, bookkeeping, and consulting services.  Plaintiffs’ Complaint alleges the following causes of action against Defendants: (1) Negligence (against Defendants Laurand Management Co., Inc. and Andrea M. Link); and (2) Negligence (against Defendants Cohen Pagano Accountancy, Inc. and Stanley M. Ingel) 

            On November 1, 2021, Plaintiffs filed a Motion to Compel Further Responses to Document Demands against Defendants Laurand Management Co., Inc. and Andrea M. Link, and Request for Sanctions of $3,061.65 (hereinafter, “Motion”).  Plaintiffs’ Motion requests that this Court enter an Order compelling Defendants’ further responses to Plaintiffs’ Request for Production of Documents, Set One Nos. 1 through 80, on the ground Defendants’ responses, which were served on September 30, 2021, constitute meritless objections. 

            On January 26, 2022, an Informal Discovery Conference was convened with the parties regarding Plaintiffs’ Motion. 

            On July 15, 2022, Plaintiff’s Motion came before the Court for hearing.  The Court ultimately denied Plaintiff’s Motion as moot, recognizing that Defendants served Supplemental Responses to Plaintiff’s Request for Production of Documents, Set One on November 22, 2021, and, thereafter, served Second Supplemental Responses.  The Court did not rule upon Plaintiff’s accompanying Request for Sanctions, and continued the hearing upon Plaintiff’s Motion “only as to the issue of sanctions.”  (Minute Order Re: Hearing on Motion to Compel Further Discovery Responses, filed July 15, 2022.) 

            Plaintiff’s Motion now comes before the Court for hearing on the issue of sanctions. 

Legal Standard 

            “Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.”  (Code Civ. Proc., § 2031.010, subd. (a).) 

            “The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities[;] (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item[; or] (3) An objection to the particular demand for inspection, copying, testing, or sampling.”  (Code Civ. Proc., § 2031.210, subd. (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[; or] (3) An objection in the response is without merit or too general.”  (Code Civ. Proc., § 2031.310, subd. (a).) 

            A demanding party’s motion for an order compelling a further response must “set forth the facts showing good cause justifying the discovery sought by the demand.”  (Code Civ. Proc., § 2031.310, subd. (b)(1).)  Further, a demanding party’s motion for an order compelling a further response must “be accompanied by a meet and confer declaration under Section 2016.040.”  (Id., § 2031.310, subd. (b)(2).)  Pursuant to Section 2016.040, “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Id., § 2016.040.) 

            “Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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).) 

Discussion 

            Plaintiffs Kenneth McBride and Waiting for My Ship to Come In  (“Plaintiffs”) move for an Order issuing monetary sanctions against Defendants Laurand Management Co., Inc. and Andrea M. Link (“Defendants”) in the amount of approximately $3,061.65.  (Notice of Motion, at p. 4:14-16.)  

            Following review of the supplemental briefing submitted with respect to the t issue of Plaintiffs’ Request for Sanctions, the Court finds an award of monetary sanctions against Defendants is proper and appropriate, pursuant to Code of Civil Procedure 2031.310, subdivision (h).  (Code Civ. Proc., § 2031.310, subd. (h).)  

Plaintiffs filed the underlying Motion to Compel Further Responses to Document Demands, arguing Defendants’ responses constituted meritless objections and failed to provide code-compliant representations of Defendants’ inability to comply with various Requests.  Plaintiffs’ counsel attempted to meet and confer with Defendants regarding the aforementioned responses; however, Plaintiffs’ counsel’s efforts were met with silence.  (Mink Decl., ¶¶ 7-8.) 

The issues presented in Plaintiff’s Motion subsequently came before this Court for an Informal Discovery Conference (“IDC”), at which both Plaintiffs’ and Defendants’ counsel were in attendance.  (Minute Order Re: Informal Discovery Conference (IDC), filed January 26, 2022.)  The Court determined Defendants’ responses “do not comply with CCP section 2031.230” and further responses would need to be served.  (Ibid.)  Although Plaintiff’s Motion was deemed moot when said Motion eventually came before this Court for hearing on July 15, 2022 (due to Defendants’ service of supplemental responses), Defendants remain parties who “unsuccessfully . . . oppose[d] a motion to compel [a] further response,” as Plaintiff was forced to bring a motion to compel and arrange for an IDC before Defendants agreed to serve supplemental responses.  (Code Civ. Proc., § 2031.310, subd. (h).)  Accordingly, the Court finds monetary sanctions proper and appropriate, pursuant to Code of Civil Procedure 2031.310, subdivision (h).  (Code Civ. Proc., § 2031.310, subd. (h).) 

            Defendants’ opposing arguments are unpersuasive.  Defendants contend monetary sanctions should not be awarded in Plaintiffs’ favor due to the following reasons: (1) The Court’s opinion regarding the insufficiency of Defendants’ responses was based on technical requirements outlined in Code of Civil Procedure section 2031.230 (Opp., at p. 3:12-16); (2) Plaintiffs’ may not be deemed the “prevailing party” upon the Motion because Plaintiffs were only “20%” successful (Opp., at p. 5:11-14); and (3) Plaintiffs should not be rewarded with sanctions when Plaintiffs themselves have refused to produce documents in response to Defendants’ discovery requests (Opp., at pp. 5:15-6:20).  The sum of Defendants’ opposing arguments are unpersuasive as this Court found Plaintiff’s Motion to be meritorious and recommended Defendants serve supplemental responses, which they did.  The Court finds the technicality or volume of amended responses required to be irrelevant to adherence to the discovery statutes.  Further, Plaintiffs’ alleged discovery wrongdoing does not warrant refusing Plaintiff’s Request for Sanctions.  Rather, Defendants may themselves move to compel Plaintiffs’ further responses and seek sanctions. 

            Based on the foregoing, the Court issues monetary sanctions against Defendants in an amount of approximately $1,561.62 (Plaintiffs’ counsel’s hourly rate ($600) multiplied by 2.5 hours (2 hours preparing Motion and .5 hour attending hearing), including the filing fee (61.65)).  (Mink Decl., ¶ 10.)  

Conclusion 

            Plaintiffs’ Request for Sanctions against Defendants Laurand Management Co., Inc., and Andrea M. Link, is GRANTED in an amount of $1,561.62. 

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