Case Number: 19STCV09635 Hearing Date: November 07, 2019 Dept: 4A

Motion for Sanctions

Having considered the moving, opposing, and reply papers on Plaintiff’s request for discovery sanctions, the Court rules as follows.

BACKGROUND

On March 20, 2019, Plaintiff Eliceo Herrera (“Plaintiff”) filed a complaint against Defendants Adolfo Razo Jr. and L.A. Hearne Company (“Defendants”) alleging motor vehicle negligence, general negligence, and negligence per se for an automobile collision that occurred on May 24, 2017.

On September 5, 2019, Plaintiff filed motions to compel Defendant Adolfo Razo Jr. to provide verified responses without objections to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) and a motion to deem the matters in Request for Admissions (Set One) to be true against Plaintiff Razo. These motions were filed pursuant to California Code of Civil Procedure sections 2030.290, 2031.300, and 2033.280.

On October 1, 2019, the Court continued the hearings on Plaintiff’s requests for sanctions set forth in the motions filed on September 5, 2019 and issued an OSC re sanctions under Code of Civil Procedure section 177.5 for November 7, 2019.

Trial is set for September 19, 2020.

PARTY’S REQUESTS

Plaintiff asks the Court impose monetary sanctions of $7,665 against Defendant Razo and his counsel of record for their abuse of the discovery process.

LEGAL STANDARD

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he 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. . . . 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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010.) salt

Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “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. §§ 2030.290, subd. (c), 2031.300, subd. (c).)

California Code of Civil Procedure section 177.5 states “[a] judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both. Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”

DISCUSSION

On October 1, 2019, the Court granted Plaintiff’s motions to compel Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) and a motion to deem the matters in Request for Admissions (Set One) against Defendant Razo. The Court deferred a ruling on Plaintiff’s request for sanctions and issued an order to show cause why the Court should not impose up to $1,500 under Code of Civil Procedure section 177.5 against Defendant Razo and his attorneys.

In the October 1, 2019 ruling, the Court found Defendant Razo waived his right to assert a failure of service with respect to Plaintiff’s discovery because Defendant Razo’s counsel did not raise the objection until after the discovery motions were filed. The Court also found in light of defense counsel’s acceptance of the written discovery from Plaintiff’s attorney on not one but two occasions, it cannot be said that these documents were not eventually served on Defendant Razo’s attorney, in substantial compliance with California Rules of Court, rule 1.21, subdivision (a).

In his opposition to the sanctions request, Defendant Razo argues the discovery sanctions should be denied because service of the discovery was unknown to Defendant Razo and his counsel prior to July 24, 2019. (Opposition, pp. 6:1-10:15.) Defendant Razo argues the April 29, 2019 attempted service was defective because the written discovery was propounded directly on Defendant Razo despite Plaintiff’s counsel knowing Defendant Razo was represented by counsel starting on April 24, 2019. (Opposition, p. 7:7-7:18.) Defendant Razo also argues the May 20, 2019 and July 24, 2019 service by email was defective because Defendant Razo had not accepted electronic service. (Opposition, pp. 8:24-9:16.)

The Court agrees that the April 29, 2019 attempted service was defective pursuant to California Rules of Court, rule 1.21, subdivision (a). However, the Court disagrees that service on May 20, 2019 and July 24, 2019 was defective. Generally, a party must serve and accept service of documents electronically because electronic filing is mandatory. (See Cal. Rules of Court, rule 2.251, subd. (c)(3); see also Local Rule 3.4, subd. (a).) Defendant does not cite or address this authority.

Accordingly, the Court finds that Defendant Razo did not act with substantial justification and that there are no circumstances that would make the imposition of sanctions unjust. The Court addresses Plaintiff’s request for sanctions in Plaintiff’s motions to compel responses to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One). The Court does not consider Plaintiff’s request for sanctions in Plaintiff’s motion to deem the matters as admitted within Plaintiff’s Request for Admissions (Set One) as against Defendant Razo because the Court denied this motion on October 1, 2019.

Plaintiff’s request for $5,405 in sanctions for the three successful motions consists of 2 hours in preparing the motions, 3 hours in reviewing the oppositions, 1.5 hours in preparing the replies, and 3 hours in appearing at the hearings at a rate of $550 an hour, plus three $60 filing fees. (Three Quiroga Decl.., ¶ 17.) This is an unreasonable amount of sanctions because the motions are relatively simple and nearly identical, and the hearings are to take place in the same courthouse, in the same department, on the same day, consecutively. Further, the hourly rate charged for drafting these motions is unnecessary as an entry-level associate could have competently drafted these motions at the same speed as Mr. Quiroga. Rather, the Court finds $980 ($200/hr. x 4 hrs. plus three $60 filing fees) is a reasonable amount of sanctions to be imposed against Defendant Razo and his counsel of record, jointly and severally, for their abuse of the discovery process.

Defendant Razo argues that section 177.5 sanctions must be denied because the Court did not give notice as to what act or omission of Defendant Razo’s or his counsel’s is the basis for the proposed sanctions and the Court did not identify what lawful court order was violated. The Court disagrees insofar as the conduct subject to the section 177.5 sanctions is clearly delineated to the failure to respond to written discovery despite Plaintiff’s substantial compliance with service requirements under the Code of Civil Procedure. However, the Court finds no lawful court order was violated. As such, section 177.5 sanctions are improper here.

Therefore, the motion for sanctions is GRANTED in part and DENIED in part, and the Court’s OSC re sanctions under Code of Civil Procedure section 177.5 is discharged.

Defendant Razo and his counsel of record are ordered to pay Plaintiff $980, jointly and severally, within 30 days of this ruling.

Plaintiff is ordered to give notice of this ruling.