Garcia v. Loma Gardens CA2/2 ( 2013 )

Filed 3/18/13 Garcia v. Loma Gardens CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MARIA GARCIA et al., B239249
Plaintiffs, (Los Angeles County
Super. Ct. No. BC438704)
v.
LOMA GARDENS, INC., et al.,
Defendants;
FARMERS INSURANCE EXCHANGE;
Intervener and Respondent;
R. PAUL KATRINAK et al.,
Objectors and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County.
William F. Highberger, Judge. Affirmed.
R. Paul Katrinak, Basta, Inc., for Objectors and Appellants.
Mendes & Mount, Dean B. Herman, Hee Young Lee, Stuart L. Brody for
Intervener and Respondent.
No appearance for Plaintiffs or Defendants.
___________________________________________________
The trial court imposed sanctions against two attorneys who misused the discovery
process. The attorneys asserted frivolous objections to interrogatories, then failed to
serve adequate answers even after the court informed them that their objections were
unmeritorious. Because the propounding party was obliged to file a motion to compel—
and the two attorneys unsuccessfully opposed the motion—the trial court did not abuse
its discretion by assessing monetary sanctions pursuant to the Civil Discovery Act.
(Code Civ. Proc., § 2016.010 et seq.)1
FACTS
Daniel Bramzon and R. Paul Katrinak (collectively, the Attorneys) practice under
the name “BASTA, Inc.,” an organization that advocates for tenants‟ rights. They
represent plaintiffs in a class action lawsuit filed in May 2010. Plaintiffs, who rent units
in an apartment house owned by defendants, allege that the building is unfit for
habitation. Farmers Insurance Exchange (Farmers) is an intervener in the lawsuit.
In September 2011, Farmers propounded special interrogatories consisting of 10
questions relating to plaintiffs‟ damages. The questions were simple.2 Plaintiffs gave
one response to all of the questions, which consisted only of objections.3
1 All undesignated statutory references are to the Code of Civil Procedure.
2 The interrogatories were: (1) do you seek monetary recovery for damage to or
loss of use of personal property?; (2) if yes, describe each item of personal property, the
date it was damaged, and the monetary value of it; (3) do you seek monetary recovery for
bodily injuries?; (4) if yes, describe each injury, the date you were injured, and the
amount of damage; (5) do you seek monetary recovery for emotional distress?; (6) if yes,
state the circumstances causing the distress, the date you suffered it, and the amount of
damages; (7) do you seek monetary recovery for violations of state or local laws?; (8) if
yes, identify each law that was violated, the date of the violation, and the amount of
damages; (9) describe each item of damage you seek to recover; and (10) describe each
item of damage the class seeks to recover.
3 Plaintiffs responded to each question, “Responding Party incorporates herein by
reference the general statement and objections stated above as though fully set forth
herein. Responding Party objects to this interrogatory as it violates Code of Civil
Procedure Section 2030.060(d) as it is not full and complete in and of itself and this set of
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Farmers sent a meet-and-confer letter to the Attorneys on November 7, 2011,
explaining why plaintiffs‟ responses were inadequate and the objections baseless.
Farmers warned the Attorneys that if they failed to serve supplemental responses,
Farmers would file a motion to compel and seek sanctions. In response, the Attorneys
reasserted the same objections to the interrogatories.
At a status conference on November 22, 2011, after recessing to research the law
relating to plaintiffs‟ objections, the court described the Attorneys‟ responses to the
interrogatories as “arrogant, pointless objections that don‟t really have anything to do
with the practical merits of the process,” adding, “If you want a case to be taken
seriously, Mr. Katrinak, these kind of sideshows are not the way to impress the court that
you‟re trying to get on to the merits.” Attorney Katrinak said, “I will withdraw the
objections and respond to those interrogatories in two weeks, your Honor.”
The Attorneys did not perform their promise to withdraw their objections and
respond to the interrogatories in two weeks. On December 9, 2011, Farmers moved to
compel plaintiffs to answer the interrogatories, filing three separate motions, one for each
of the named plaintiffs. Farmers requested sanctions for plaintiffs‟ misuse of the
discovery process.
In opposition, Katrinak acknowledged the trial court‟s “position concerning my
objections” and his November 22 promise to withdraw his objections to the
interrogatories. He declared, “I was in the process of preparing supplemental responses
when I received [ ] Farmer‟s Motions to Compel.” Attached to Katrinak‟s declaration
were plaintiffs‟ supplemental responses to the interrogatories, served on December 20.
The supplemental responses repeat plaintiffs‟ objections and partially answer the
interrogatories. Farmers replied that plaintiffs‟ newly served answers are deficient
because they assert the same frivolous and inapplicable objections; are evasive and
interrogatories contains a prefacer or instruction not approved by the Judicial Council.
Furthermore, this interrogatory contains impermissible subparts; specially prepared
interrogatories may not contain subparts, „compound, conjunctive or disjunctive‟
questions per the Code of Civil Procedure Section 2030.060(f).”
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nonresponsive; and fail to provide a factual basis for plaintiffs‟ claims (such as dates of
injury and the type of damage suffered). Farmers asked the court to order complete
responses and award sanctions.
THE TRIAL COURT’S RULING
On January 9, 2012, the court granted Farmers‟ motion to compel. It observed
that when Farmers filed the motion on December 9, the only responses from plaintiffs
consisted of objections to the form of the questions. Plaintiffs did not serve answers to
the interrogatories until December 20. The objections raised by plaintiffs were not a
valid response to Farmers‟ request for the dates plaintiffs were damaged and the type and
amount of damage suffered. The court advised the Attorneys on November 22 of its view
that their objections were frivolous, yet no answers to the interrogatories were served
until Farmers moved to compel them.
The court wrote that plaintiffs made “no attempt to provide any factual
information whatsoever” and the “boilerplate” objections were “frivolous and an abuse of
the discovery process for which sanctions are appropriate.” Further, plaintiffs‟ belated
supplemental responses were “inadequate.” The court ordered plaintiffs to provide
substantive, verified responses to the interrogatories (describing their injuries and the
dates the injuries were suffered), without objections. It imposed sanctions of $2,571 per
plaintiff ($7,713 total) on BASTA, Inc., and the Attorneys, jointly and severally.
DISCUSSION
1. Appellate Jurisdiction
Farmers renews its challenge to this Court‟s jurisdiction, which it previously
raised by way of a motion to dismiss that was summarily denied by this Court on May 11,
2012. The appeal is from an order imposing monetary sanctions of $7,713 on the
Attorneys, payable to Farmers. Farmers maintains that sanctions imposed for each set of
interrogatory answers cannot be aggregated to reach the jurisdictional minimum.
Appeal may be taken from “an order directing payment of monetary sanctions by a
party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).”
(§ 904.1, subd. (a)(12).) Farmers relies upon Calhoun v. Vallejo City Unified School
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Dist. (1993) 20 Cal.App.4th 39 to argue that the $5,000 jurisdictional minimum is
lacking. In Calhoun, sanctions payable by counsel to a school district and an employees‟
union were not appealable because (1) the appeal was improperly taken by the plaintiff
instead of the sanctioned attorney, and (2) sanctions were awarded to both defendants,
resulting in “multiple sub-[$5,000] sanction orders.” (Id. at pp. 42, 44. See also Imuta v.
Nakano (1991) 233 Cal.App.3d 1570, 1585, fn. 20 [court declined to aggregate three
sanctions orders because the sanctions arose from separate motions, involved separate
acts, relied on different statutory authority, and were payable to different persons].)
Calhoun and Imuta are inapposite. Here, there is one order directing counsel to
pay one entity, Farmers. It reads, “Grant with sanctions in the sum of $7,713.00 against
plaintiffs[‟] counsel of record . . . .” Farmers‟ identical motions to compel arose from the
Attorneys‟ identical responses to identical sets of interrogatories. There was a single
opposition to the motion. This is not a case of multiple sub-$5,000 orders, payable to
separate persons or entities, based on separate acts. The order is appealable.
2. Sanctions Order
An order imposing sanctions is reviewed for an abuse of discretion. We resolve
evidentiary conflicts in favor of the trial court‟s ruling and will reverse only if the ruling
was arbitrary, capricious or whimsical. (Clement v. Alegre (2009) 177 Cal.App.4th 1277,
1285-1286.) Appellants have the burden of affirmatively demonstrating trial court error.
(Id. at p. 1286.)
The Attorneys present a single question for resolution: “Did the trial court abuse
its discretion in awarding punitive sanctions in the amount of $7,713.00?” The short
answer is “No” because the award is supported by the evidence, not punitive.
The Attorneys concede that their objections to the interrogatories lack merit, and
that “some sanctions” could be assessed. The Attorneys had promised at a status
conference that they would withdraw the unmeritorious objections and respond to the
interrogatories within two weeks of November 22 (i.e., December 6). They did not live
up to their promise. While the Attorneys procrastinated, Farmers faced a 45-day deadline
for filing a motion to compel further responses, set to expire on December 11. By
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allowing the deadline to expire, Farmers would “waive[] any right to compel a further
response to the interrogatories” (§ 2030.300, subd. (c)), and the trial court would lack
jurisdiction to order further answers. (Vidal Sassoon, Inc. v. Superior Court (1983) 147
Cal.App.3d 681, 685.) Farmers reasonably acted to protect its rights when it filed a
motion to compel on December 9, two days before the statutory deadline.
Plaintiffs opposed Farmers‟ motion to compel on the grounds that they had already
served supplemental responses. The trial court examined the supplemental responses and
found them lacking. First, plaintiffs‟ responses assert more objections, even though the
court warned the Attorneys on November 22 that the interrogatories were proper and
their objections were “pointless.” Second, the supplemental responses were “inadequate”
because they failed to list the dates and types of injuries suffered by plaintiffs.
The Civil Discovery Act states that the court “shall impose a monetary sanction”
against a party or attorney who unsuccessfully opposes a motion to compel further
responses to interrogatories, “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.” (§ 2030.300, subd. (d).) Among the authorized reasons for imposing sanctions
are: making, without substantial justification, an unmeritorious objection to discovery;
making an evasive response to discovery; disobeying a court order to provide discovery;
or unsuccessfully opposing a motion to compel. (§ 2023.010.) The wording of the
statute does not entitle a party “to one free refusal to serve further responses before a
monetary sanction can be imposed. On the contrary, the plain language of the statute
requires the trial court to impose a monetary sanction even for the first offense.” (Parker
v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 294.)
There is no substantial justification for the Attorneys‟ conduct. Farmers sent the
Attorneys a meet-and-confer letter explaining why the Attorneys‟ objections to the
interrogatories were baseless. The Attorneys responded by reasserting the same
unmeritorious objections, electing to stand by their refusal to answer the questions. Once
the trial court voiced its disapproval, the Attorneys seemingly backed down, only to
renege on their promise to answer the interrogatories, thereby prompting Farmers‟ motion
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to compel. There is no justification for the Attorneys‟ subsequent conduct in serving
patently inadequate answers and more objections, which necessitated an order from the
court to fully answer the questions, without objections.
Farmers requested attorney fees of $2,571 for each of the three identical motions
to compel, for a total of $7,713. This included the time of a partner (2.7 hours at $230
per hour) and an associate (10 hours at $195 per hour) to draft the motions, to prepare
replies to the Attorneys‟ opposition to the motions, and to attend the hearing on the
motions.
The Attorneys consider the $7,713 imposed by the court to be punitive, not
remedial; however, they give no reason why the amount awarded exceeds the rates
customarily charged in Los Angeles. Instead, they argue that there was no reason to
bring motions to compel because they withdrew their objections. As noted above, the
Attorneys reneged on their promise to withdraw their objections and serve discovery
responses by December 6: they did not serve their responses until 11 days after Farmers
moved to compel the answers. Even then, the belated answers were inadequate.
Absent a showing that the fees incurred were unreasonable, there is no basis for
finding that the court abused its discretion. “In challenging attorneys fees as excessive
because too many hours of work are claimed, it is the burden of the challenging party to
point to the specific items challenged, with a sufficient argument and citations to the
evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do
not suffice. Failure to raise specific challenges in the trial court forfeits the claim on
appeal.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn.
(2008) 163 Cal.App.4th 550, 564.) Here, the Attorneys‟ only argument in the trial court
was that the amount demanded by counsel for Famers “seems excessive.” This type of
generalized argument, without more, cannot succeed.
Finally, the Attorneys argue that appellant Bramzon should not be sanctioned
because “he did not sign one response or the opposition.” While Bramzon did not sign
the papers, both Bramzon and Katrinak are listed on the front pages of plaintiffs‟
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inadequate discovery responses and on plaintiffs‟ opposition to Farmers‟ motion to
compel, giving both men responsibility.
DISPOSITION
The judgment is affirmed. Farmers is entitled to recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1)-(2), (d)(1).) Farmers‟ request for attorney fees is denied.
(Id., rule 8.278d(2).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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