NICHOLAS KIDD VS AMB PARK ONE AT LAX, ET AL.

Tentative Rulings

Case Number: 19STLC10475    Hearing Date: April 7, 2021    Dept: 25

HEARING DATE: Wed., April 7, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Kidd v. AMB Park One at LAX, LLC, et al.

CASE NUMBER: 19STLC10475 COMP. FILED: 11-13-19

NOTICE: OK DISC. C/O: 04-12-21

MOTION C/O: 04-27-21

PROCEEDINGS: MOTION FOR TERMINATING SANCTIONS AND REQUEST FOR MONETARY SANCTIONS

MOVING PARTY: Defendant AMB Park One at LAX, LLC

RESP. PARTY: None

MOTION FOR TERMINATING SANCTIONS AND MONETARY SANCTIONS

(CCP § 2023.030)

TENTATIVE RULING:

Defendant AMB Park One at LAX, LLC’s Motion for Terminating Sanctions is GRANTED. The Complaint is HEREBY DISMISSED AS TO DEFENDANT AMB PARK ONE AT LAX, LLC. However, Defendant AMB’s request for further monetary sanctions is DENIED.

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: None filed as of April 5, 2021 [ ] Late [X] None

REPLY: None filed as of April 5, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On November 13, 2019, Plaintiff Nicholas Kidd (“Plaintiff”) filed an action for motor vehicle negligence against Defendants AMB Park One at LAX, LLC (“AMB”) and Angeles Olga Garcia (“Garcia”). On December 24, 2019, Defendant AMB filed an Answer.

Defendant AMB filed motions to compel Plaintiff’s responses to Form Interrogatories, Set One, and to Request for Production of Documents, Set One, on March 26, 2020. Both motions were granted on August 13, 2020. (8/13/20 Minute Order.) Plaintiff was ordered to serve verified responses without objections and pay sanctions of $270.00 within thirty days of that order. (Id.)

On August 20, 2020, Defendant AMB filed a motion to deem Requests for Admission admitted against Plaintiff. Plaintiff’s counsel filed a declaration in opposition on March 5, 2021 stating he had lost contact with his client and requesting that no sanctions be awarded against counsel or his office.

Defendant AMB filed the instant Motion for Terminating Sanctions against Plaintiff and Request for Monetary Sanctions (the “Motion”) on September 29, 2020. No opposition was filed.

Lastly, on March 10, 2021, the Court granted Defendant AMB’s motion to deem Requests for Admission admitted against Plaintiff and awarded sanctions of $256.65 against Plaintiff only, to be paid within thirty days of that order. (3/10/21 Minute Order.)

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

Here, Defendant AMB seeks a terminating sanction against Plaintiff for his failure to comply with discovery rules and with the Court’s order. (Mot., p. 3:23-27.) Defendant AMB states that it first served Plaintiff with Form Interrogatories, Set One, and Request for Production, Set One, on January 20, 2020 and after receiving no responses, filed motions to compel responses to this discovery on March 26, 2020. (Id., Lee Decl., ¶¶ 3-4.) The motions to compel responses were granted and Plaintiff was ordered to serve verified responses without objections as well as pay sanctions within thirty days of notice of the order on August 13, 2020. (8/13/20 Minute Order.) Notably, Plaintiff did not file an opposition to these motions, but counsel was present at the hearing and submitted to the Court’s tentative ruling. (Id.) Defendant AMB’s counsel provides evidence he served a copy of the Court’s August 13, 2020 order electronically that same day. (Mot., Lee Decl. ¶ 4, Exh. A.) Defendant AMB’s counsel also states that he called Plaintiff’s counsel’s office to discuss the court-ordered discovery responses in early to mid-September 2020 and left a message with Plaintiff’s counsel’s secretary but did not hear back. (Id. at ¶ 6.) Defendant AMB’s counsel further states he sent Plaintiff’s counsel an email on September 23, 2020 regarding the overdue court-ordered discovery responses. (Id., Exh. B.) As of the date this Motion was filed, Defendant AMB had not received any of Plaintiff’s responses.

Defendant AMB also notes that on May 14, 2020, it propounded the first set of Requests for Admission on Plaintiff’s counsel, and after not receiving any responses to the discovery or Defendant AMB’s counsel’s meet and confer efforts, it filed a motion to deem those Requests for Admission admitted. (Id. at ¶ 5.) Notably, the motion to deem Requests for Admission admitted was granted on March 10, 2021, but no sanctions against Plaintiff’s counsel were imposed as he stated he had lost contact with his client. (3/10/21 Minute Order.)

Defendant AMB argues Plaintiff has failed to participate in the discovery process since January 2020 and failed to comply with the Court’s orders compelling responses and payment of monetary sanctions. (Mot., pp. 5:25-6:9.) For this reason, Defendant AMB argues, Plaintiff has demonstrated lesser sanctions will have no effect. (Id.) Indeed, it appears Plaintiff is no longer interested in prosecuting this action. Importantly, Plaintiff was properly served with this Motion but has not opposed it.

Based on the above, the Court finds terminating sanctions are warranted. Although terminating sanctions are a harsh penalty, the evidence above demonstrates Plaintiff’s compliance with the Court’s orders cannot be achieved through lesser means. Thus, this action is DISMISSED AS TO DEFENDANT AMB PARK ONE AT LAX, LLC.

Defendant AMB seeks further monetary sanctions of $610.00 pursuant to Code of Civil Procedure sections 2023.030, 2030.290, 2031.300, and 2023.050. (Mot., p. 6:10-22.) However, sanctions pursuant to Sections 2030.290, 2031.300, and 2023.030 were already awarded on August 13, 2020 for failure to provide responses to the Form Interrogatories and Request for Production of Documents. (8/13/20 Minute Order.) In addition, the Court declines to consider Defendant AMB’s request for additional sanctions pursuant to Code of Civil Procedure section 2023.050 for Plaintiff’s failure to respond to the Request for Production of Documents as this should have been requested in its March 26, 2020 motion to compel responses. The Court declines to award any further monetary sanctions as such an order would be futile.

1. Conclusion & Order

For the foregoing reasons, Defendant AMB Park One at LAX, LLC’s Motion for Terminating Sanctions is GRANTED. The Complaint is HEREBY DISMISSED AS TO DEFENDANT AMB PARK ONE AT LAX, LLC. However, Defendant AMB’s request for further monetary sanctions is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC10475    Hearing Date: March 10, 2021    Dept: 25

HEARING DATE: Wed., March 10, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Kidd v. AMB Park One at LAX, LLC, et al.

CASE NUMBER: 19STLC10475 COMP. FILED: 11-13-19

NOTICE: OK DISC. C/O: 04-12-21

MOTION C/O: 04-27-21

PROCEEDINGS: MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED

MOVING PARTY: Defendant AMB Park One at LAX, LLC

RESP. PARTY: Plaintiff Nicholas Kidd

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED; REQUEST FOR SANCTIONS

(CCP § 2033.280)

TENTATIVE RULING:

Defendant AMB Park One at LAX, LLC’s Motion to Deem Matters Admitted Against Plaintiff is GRANTED. Defendant’s request for sanctions is also GRANTED in the amount of $256.65 to be paid by Plaintiff Nicholas Kidd within thirty (30) days of service 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 March 5, 2021 [ ] Late [ ] None

REPLY: None filed as of March 5, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On November 13, 2019, Plaintiff Nicholas Kidd (“Plaintiff”) filed an action for motor vehicle negligence against Defendants AMB Park One at LAX, LLC (“AMB”) and Angeles Olga Garcia (“Garcia”). On December 24, 2019, Defendant AMB filed an Answer.

On August 20, 2020, Defendant AMB filed the instant Motion to Deem Matters Admitted against Plaintiff and Request for Monetary Sanctions (the “Motion”). Plaintiff’s counsel filed a declaration in opposition on March 5, 2021. To date, no reply brief has been filed.

1. Legal Standard & Discussion

A. Requests for Admission

A party must respond to requests for admissions within 30 days after service of such requests. (Code Civ. Proc., § 2033.250, subd. (a).) “If a party to whom requests for admission are directed fails to serve a timely response…(a) [that party] waives any objection to the requests, including one based on privilege or on the protection for work product…” (Code Civ. Proc., § 2033.280, subd. (a).) “The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7.” (Id. at subd. (b).) A motion dealing with the failure to respond, rather than with inadequate responses, does not require the requesting party to meet and confer with the responding party. (Deymer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4 [disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973]. There is no time limit within which a motion to have matters deemed admitted must be made. (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1585.)

Defendant AMB’s counsel served Plaintiff’s counsel with the first set of Requests for Admission on May 14, 2020 via email. (Mot., Lee Decl., ¶ 2, Exh. A.) As of the date of this Motion, Plaintiff has not provided any responses. (Id. at ¶ 3) Thus, Defendant AMB is entitled to an order deeming the Request for Admissions, Set One, admitted against Plaintiff. (Code Civ. Proc., § 2033.280.)

B. Request for Sanctions

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 to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. 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).) Furthermore, it is “mandatory that the Court impose a monetary sanction…on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280, subd. (c).)

The Court finds Plaintiff’s failure to respond to Defendant AMB’s discovery request a misuse of the discovery process. In addition, the Court is required to impose a monetary sanction on Plaintiff for his failure to respond to the Request for Admissions under Code of Civil Procedure section 2033.280, subdivision (c).

Defendant’s counsel seeks sanctions of $256.65 based on 1.2 hours of attorney time billed at $150.00 per hour and one filing fee of $61.65. (Mot., Lee Decl., ¶ 4.) The Court finds Defendant’s request reasonable.

In Opposition, Plaintiff’s counsel states he has lost contact with Plaintiff but has been working diligently to reestablish it. (Oppo., ¶ 2.) For this reason, he asks that the Court not issue sanctions against his office. (Id.) Sanctions are awarded against Plaintiff only and are to be paid to Defendant AMB’s counsel within thirty (30) days of notice of this order.

1. Conclusion & Order

For the foregoing reasons, Defendant AMB Park One at LAX, LLC’s Motion to Deem Matters Admitted Against Plaintiff is GRANTED. Defendant’s request for sanctions is also GRANTED in the amount of $256.65 to be paid by Plaintiff Nicholas Kidd within thirty (30) days of service this order.

Moving party is ordered to give notice.

Case Number: 19STLC10475    Hearing Date: August 13, 2020    Dept: 25

HEARING DATE: Thu., August 13, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Kidd v. AMB Park One at LAX, LLC, et al.

CASE NUMBER: 19STLC10475 COMP. FILED: 11-13-19

NOTICE: OK DISC. C/O: 04-12-21

MOTION C/O: 04-27-21

PROCEEDINGS: (1) MOTION TO COMPEL PLAINTIFF’S RESPONSE TO REQUEST FOR PRODUCTION, SET ONE, AND REQUEST FOR MONETARY SANCTIONS

(2) MOTION TO COMPEL PLAINTIFF’S RESPONSE TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS

MOVING PARTY: Defendant AMB Park One at LAX, LLC

RESP. PARTY: None

MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS

(CCP §§ 2030.290; 2031.300)

TENTATIVE RULING:

Defendant AMB Park One at LAX, LLC’s (1) Motion to Compel Plaintiff’s Response to Request for Production, Set One, and (2) Motion to Compel Plaintiff’s Response to Form Interrogatories, Set One, are GRANTED. Plaintiff is ordered to provide verified responses without objections to Defendant’s discovery within thirty (30) days of notice of this order.

Defendant’s request for sanctions is also GRANTED in the amount of $270.00 to be paid within thirty (30) days of notice 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: None filed as of August 11, 2020 [ ] Late [X] None

REPLY: None filed as of August 11, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On November 13, 2019, Plaintiff Nicholas Kidd (“Plaintiff”) filed an action for motor vehicle negligence against Defendants AMB Park One at LAX, LLC (“AMB”) and Angeles Olga Garcia (“Garcia”). On December 24, 2019, Defendant AMB filed an Answer.

On March 26, 2020, Defendant AMB filed the instant (1) Motion to Compel Plaintiff’s Response to Request for Production, Set One, and Request for Monetary Sanctions and (2) Motion to Compel Plaintiff’s Response to Form Interrogatories, Set One, and Request for Monetary Sanctions (collectively, the “Motions”). To date, no oppositions have been filed.

1. Legal Standard & Discussion

A. Request for Production & Interrogatories

A party must respond to interrogatories and requests for production of documents within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a); Code Civ. Proc., § 2031.260, subd. (a).) If a party to whom interrogatories or requests for production of documents are directed does not provide timely responses, 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. (c).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a); Code Civ. Proc., § 2031.300, subd. (a).) There is no time limit for a motion to compel responses to interrogatories or production of documents other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., §§ 2024.020, subd. (a), 2030.290; Code Civ. Proc., § 2031.300.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (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.)

Here, Defendant AMB served a Request for Production of Documents, Set One, and Form Interrogatories, Set One, on Plaintiff via regular mail on January 20, 2020. (Motions, Lee Decl., ¶¶ 3, Exhs. A.) Although not statutorily required, on March 19, 2020, Defendant AMB’s counsel sent Plaintiff’s counsel an email regarding the lack of discovery responses. (Id. at ¶¶ 5, Exhs. B.) To date, Defendant AMB has not received any responses to the propounded discovery. (Id. at ¶ 6.) Thus, Defendant AMB is entitled to an order compelling Plaintiff to provide verified responses without objections. (Code Civ. Proc., §§ 2030.290, 2031.300.)

B. Sanctions

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 to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)

The Court finds Plaintiff’s failure to respond to Defendant AMB’s discovery requests a misuse of the discovery process.

Defendant AMB’s counsel requests a total of $885.00 in sanctions, which consists of five hours of attorney time billed at $150.00 per hour, two filing fees of $60.00, and one parking fee of $15.00. (Motions, Lee Decl., ¶¶ 7.) However, the amount sought is excessive given the simplicity of these nearly identical Motions and the lack of opposition and reply. Thus, Defendant AMB’s request is GRANTED in the amount of $270.00 based on one hour of attorney time and two filing fees. (Id.) Plaintiff is ordered to pay sanctions within thirty (30) days of notice of this order.

1. Conclusion & Order

For the foregoing reasons, Defendant AMB Park One at LAX, LLC’s (1) Motion to Compel Plaintiff’s Response to Request for Production, Set One, and (2) Motion to Compel Plaintiff’s Response to Form Interrogatories, Set One, are GRANTED. Plaintiff is ordered to provide verified responses without objections to Defendant’s discovery within thirty (30) days of notice of this order.

Defendant’s request for sanctions is also GRANTED in the amount of $270.00 to be paid within thirty (30) days of notice of this order.

Moving party is ordered to give notice.