LUBIN ROCHA VS MARIA LOPEZ

Tentative Rulings

Case Number: 19STLC05392    Hearing Date: January 19, 2021    Dept: 25

HEARING DATE: Tue., January 19, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Rocha v. Lopez COMPL. FILED: 06-05-19

CASE NUMBER: 19STLC05392 DISC. C/O: 05-17-21

PROCEEDINGS: MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF FOR FAILURE TO RESPOND TO COURT-ORDERED DISCOVERY

MOVING PARTY: Defendant Maria Lopez

RESP. PARTY: Plaintiff Lubin Rocha

MOTION FOR TERMINATING SANCTIONS

(CCP § 2023.030)

TENTATIVE RULING:

Defendant Maria Lopez’s Motion for Terminating Sanctions Against Plaintiff for Failure to Respond to Court-Ordered Discovery is DENIED. However, Plaintiff is ordered to comply with the Court’s January 21, 2020 Order within thirty (30) days of this order.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 5, 2021 [ ] Late [ ] None

REPLY: None filed as of January 14, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On June 5, 2019, Plaintiff Lubin Rocha (“Plaintiff”) filed an action for motor vehicle negligence against Maria Lopez (“Defendant”). Defendant filed an Answer on July 9, 2019.

Defendant filed motions to compel responses to form interrogatories, special interrogatories, and request for production of documents on December 26, 2019. A hearing on the motions to compel discovery was scheduled for January 21, 2020. The motions were unopposed and neither party appeared at the hearing, but Defendant submitted to the Court’s tentative ruling via email. (1/21/20 Minute Order.) The Court granted Defendant’s motions to compel and ordered Plaintiff to pay sanctions of $555.00 within thirty (30) days of notice of the order. (Id.) Defendant was ordered to give notice. (Id.)

Plaintiff filed a notice of substitution of attorney on November 10, 2020 indicating he was now being represented by Joan Lauricella with the Law Offices of Joan Lauricella, APC.

On December 8, 2020, Defendant filed the instant Motion for Terminating Sanctions Against Plaintiff for Failure to Respond to Court-Ordered Discovery (the “Motion”). Plaintiff filed an Opposition on January 5, 2021. To date, no reply brief has been filed.

1. Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., § 2023.030, subd. (d).)

1. Discussion

A. Plaintiff’s Objections

Plaintiff’s objections to the declaration of Defendant’s counsel are both OVERRULED.

B. Terminating Sanctions

Defendant seeks terminating sanctions due to Plaintiff’s failure to provide discovery responses and pay monetary sanctions as required by the Court’s January 21, 2020 Order. (Mot., p. 3:15-21; p. 5:1-5.) As noted above, the Court’s Order required Plaintiff to provide verified responses to Defendant’s form interrogatories, special interrogatories, and request for production of documents, and to pay sanctions within thirty (30) days of Defendant giving Plaintiff notice. (1/20/20 Minute Order.) However, Defendant did not provide evidence that he gave Plaintiff or Plaintiff’s prior or current counsel notice of the January 21 Order as ordered. Plaintiff’s counsel only states that on November 3, 2020, he emailed Plaintiff’s prior counsel regarding the “discovery propounded in 2019” and referenced a “second motion to compel set for hearing January 19, 2021.” (Mot., Nepomuceno Decl., ¶ 3, Exh A.) This email does not mention the January 21, 2020 Order. Defendant’s counsel also provides a copy of the documents provided to Plaintiff’s new and current counsel, Joan Lauricella, on December 8, 2020. (Id. at ¶ 4, Exh. B.) These documents do not include a copy of the January 21, 2020 Order. (Id.) In her declaration, Plaintiff’s counsel also attests she never received a copy of the January 21, 2020 Order. (Oppo., Lauricella Decl., ¶ 8, Exh. B.) Defendant did not file a reply brief demonstrating he gave notice of the discovery order.

However, even if Defendant had filed proof he gave Plaintiff notice of the Order, terminating sanctions are a harsh penalty. Failure to comply with only one Court order would be insufficient to justify a terminating sanction. The Court instead orders Plaintiff to comply with the January 21, 2020 Order within thirty (30) days of this order.

1. Conclusion & Order

For the foregoing reasons, Defendant Maria Lopez’s Motion for Terminating Sanctions Against Plaintiff for Failure to Respond to Court-Ordered Discovery is DENIED. However, Plaintiff is ordered to comply with the Court’s January 21, 2020 Order within thirty (30) days of this order.

Moving party is ordered to give notice.

Case Number: 19STLC05392    Hearing Date: January 21, 2020    Dept: 25

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR DOCUMENTS, FORM INTERROGATORIES, AND REQUESTS FOR ADMISSION

(CCP §§ 2030.290; 2031.300)

TENTATIVE RULING:

Defendant Maria Lopez’s Motion to Compel Plaintiff’s Verified Responses to Form Interrogatories, Motion to Compel Plaintiff’s Verified Responses to Special Interrogatories, and Motion to Compel Plaintiff’s Verified Responses to Demand for Production of Documents are GRANTED.

Defendant’s Request for Monetary Sanctions is also granted in the amount of $555.00 to be paid within thirty (30) days of service of notice of this order. 

ANALYSIS:

1. Background

On June 5, 2019, Plaintiff Lubin Rocha (“Plaintiff”) filed an action for motor vehicle negligence against Defendant Maria Lopez (“Defendant”).

On December 26, 2019, Defendant filed the following three motions (collectively, the “Motions”):

1. Motion to Compel Plaintiff’s Verified Responses to Form Interrogatories and Request for Monetary Sanctions (the “Form Interrogatories Motion”)

2. Motion to Compel Plaintiff’s Verified Responses to Special Interrogatories and Request for Monetary Sanctions (the “Special Interrogatories Motion”); and

3. Motion to Compel Plaintiff’s Verified Responses to Demand for Production of Documents and Request for Monetary Sanctions (the “Request for Production Motion”)

To date, no opposition or reply briefs have been filed.

1. Legal Standard

A party must respond to discovery requests within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a); Code Civ. Proc., § 2031.260, subd. (a).) If a party does not provide timely responses to discovery requests, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b); Code Civ. Proc., § 2031.300, subd. (b).) There is no time limit for a motion to compel responses where no responses have been served other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc., § 2030.290; Code Civ. Proc., § 2031.300.) No meet and confer efforts are required before filing a motion to compel responses. (Code Civ. Proc., § 2030.290; Code Civ. Proc., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)

1. Discussion

Here, Defendant served Plaintiff with Form Interrogatories, Set One, Special Interrogatories, Set One, and Demand for Production of Documents, Set One, by mail on July 9, 2019. (Motions, Nepomuceno Decl., ¶ 2.) Responses to Defendant’s discovery requests were due on August 13, 2019. (Id., ¶ 3.) Defendant granted Plaintiff a two-week extension to have responses to the discovery requests due on August 28, 2019. (Id., ¶ 4.) To date, Plaintiff has not responded to any of Defendant’s discovery requests. (Id., ¶ 6.) Thus, Defendant is entitled to an order requiring Plaintiff to serve verified responses to the discovery requests and without objections.

In addition, Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process. A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)

The Court finds that Plaintiff’s failure to provide responses to Defendant’s discovery requests is a misuse of the discovery process.

Defense counsel requests a total of $1,305.00 in sanctions, which includes nine hours of attorney time billed at $125.00 per hour and a $60 filing fee for each Motion. (Motions, Nepomuceno Decl., ¶ 7.) However, the amount sought is excessive given the simplicity of these nearly identical Motions and the lack of opposition and reply. Defendant’s Request for Sanctions is GRANTED in the amount of $555.00 based on three hours of attorney time billed at $125.00 per hour plus three filing fees of $60.00, to be paid within thirty (30) days of service of notice of this order.

1. Conclusion & Order

For the foregoing reasons, Defendant Maria Lopez’s Motion to Compel Plaintiff’s Verified Responses to Form Interrogatories, Motion to Compel Plaintiff’s Verified Responses to Special Interrogatories, and Motion to Compel Plaintiff’s Verified Responses to Demand for Production of Documents are GRANTED.

Defendant’s Request for Monetary Sanctions is also granted in the amount of $555.00 to be paid within thirty (30) days of service of notice of this order.

Moving party to give notice.