Nadia Bernardi vs Terence Alemann et al

Case Number

24CV04426

Case Type

Hearing Date / Time

Fri, 01/16/2026 - 10:00

Nature of Proceedings

CMC; OSC: Sanctions; Motions to Compel

Tentative Ruling

(1) For the reasons stated herein, the motion of defendant Terence Alemann to deem requests for admission, set one, admitted is granted. The genuineness of any documents and the truth of any matters specified in defendant’s first set of requests for admission directed to plaintiff are deemed admitted. The court awards sanctions in favor of defendant and against plaintiff Nadia Bernardi, in the amount of $1,228.50, payable to defendant’s counsel. Payment of sanctions is due by February 17, 2026.

(2) For the reasons stated herein, the motion of defendant Terence Alemann to compel plaintiff to respond to form interrogatories, set one, and special interrogatories, set two, is granted. On or before February 6, 2026, plaintiff shall serve verified, code compliant responses to defendant’s set one form interrogatories and set two special interrogatories directed to plaintiff, without objections. The court awards sanctions in favor of defendant and against plaintiff Nadia Bernardi, in the amount of $265, payable to defendant’s counsel. Payment of sanctions is due by February 17, 2026.

(3) For the reasons stated herein, the motion of defendant Terence Alemann to compel plaintiff to respond to requests for production, set one, is granted. On or before February 6, 2026, plaintiff shall serve verified, code compliant responses to defendant’s set one requests for production directed to plaintiff, without objections. The court awards sanctions in favor of defendant and against plaintiff Nadia Bernardi, in the amount of $265, payable to defendant’s counsel. Payment of sanctions is due by February 17, 2026.

(4) For the reasons stated herein, the court imposes sanctions against plaintiff’s counsel, James C. Diefenbach, in the amount of $500, payable to the court. Payment of sanctions is due by February 17, 2026.

(5) Counsel for defendant shall serve and, on or before January 26, 2026, file proof of service of, notice of the court’s ruling herein.

Background:

On August 8, 2024, plaintiff Nadia Bernardi (Plaintiff) filed a complaint against defendants Terence Alemann (Alemann) and Macaluso Pools, Inc. (Macaluso), alleging three causes of action: (1) private nuisance (against Alemann only); (2) negligence (against Alemann and Macaluso); and (3) negligent infliction of emotional distress (against Alemann only).

On December 13, 2024, after a case management conference held in this action, the court issued a minute order noting that there was no proof of service on file. (Dec. 13, 2024, Minute Order.) The court continued that conference to March 7, 2025, to allow for service and for an amended complaint to be filed, and directed Plaintiff’s counsel to give notice if service is achieved. (Ibid.)

On January 7, 2025, Plaintiff filed a first amended complaint (FAC) against Alemann and Daniel Raymond Long doing business as Rincon Pool Design (Rincon Pool), which is the operative pleading. The FAC alleges two causes of action for private nuisance (against Alemann only) and negligence (against Alemann and Rincon Pool), each of which arise from the construction of a pool on property owned by Alemann which purportedly caused property situated below Alemann’s property and owned by Plaintiff, to be subjected to mud slides and flooding events. (FAC, ¶¶ 1-2 & 7-14.)

On March 6, 2025, Plaintiff filed a proof of service of a summons and complaint on Rincon Pool. The court has no record showing that Plaintiff filed a proof of service of the summons, complaint, or FAC on Alemann.

On May 5, 2025, Alemann filed an answer to the FAC, generally denying its allegations and asserting twenty-six affirmative defenses.

On August 28, Alemann filed three motions (collectively, the discovery motions): (1) for an order (the RFA Motion) deeming Alemann’s set one requests for admission (the RFA) admitted by Plaintiff without objections; (2) for an order (the Interrogatory Motion) compelling Plaintiff to respond to Alemann’s set one form interrogatories (the FI) and set one special interrogatories (the SI), without objections; and (3) for an order (the RFP Motion) compelling Plaintiff to respond to Alemann’s set one request for production (the RFP), without objections. Each of the discovery motions requests an award of sanctions against Plaintiff.

The discovery motions are each supported by separately filed declarations of Alemann’s counsel, Dennis C. Loveridge (attorney Loveridge), who states that on January 8, 2025, Loveridge’s office served the RFA, the FI, the SI, and the RFP (collectively, the discovery requests) on Plaintiff by electronic mail. (Loveridge Decs., ¶¶ 3; Exhs. A [RFA, FI, RFP] & Exh. B [SI].) Plaintiff’s responses to the discovery requests were due on February 11. (Loveridge Decs., ¶¶ 3.)

Loveridge further states that on March 7, Plaintiff’s counsel, James C. Diefenbach (attorney Diefenbach), responded to the January 8 electronic mailing described above, apologized for Plaintiff’s delayed responses, and requested an extension of time for Plaintiff to respond to the discovery requests to March 28, stating that Plaintiff will waive objections. (Loveridge Decs., ¶¶ 4; Exhs. B [RFA Motion & RFP Motion] & C [Interrogatory Motion].) On March 13, attorney Loveridge’s office granted the extension of time requested by attorney Diefenbach. (Loveridge Decs., ¶¶ 5 & Exhs. C [RFA Motion & RFP Motion] & D [Interrogatory Motion].)

Loveridge asserts that on March 31, attorney Diefenbach advised that Plaintiff would be obtaining new counsel, and requested an additional four weeks for Plaintiff to respond to the RFA. (Loveridge Decs., ¶¶ 6; Exhs. D [RFA Motion & RFP Motion]; Exh. E [Interrogatory Motion].) In response, Alemann’s counsel noted that Plaintiff’s responses to the discovery requests were overdue and that all objections to those requests had been waived, and stated that Alemann would delay filing any motions to compel until April 29. (Loveridge Decs., ¶¶ 7-8 & Exhs. D [RFA Motion & RFP Motion] & E [Interrogatory Motion].)

On July 30, 2025, Alemann’s counsel transmitted meet and confer correspondence to attorney Diefenbach asserting that at a case management conference held on May 23, 2025, attorney Diefenbach purportedly advised that they would continue representation of Plaintiff and would provide the outstanding discovery responses in 10 days, and that Alemann required verified responses to the discovery requests from Plaintiff by August 6. (Loveridge Decs., ¶¶ 9 & Exhs. E [RFA Motion & RFP Motion] & F [Interrogatory Motion].) Loveridge’s office has not received a response to that meet and confer correspondence or any written responses by Plaintiff to the discovery requests. (Loveridge Dec., ¶ 10.) 

Court records reflect that Plaintiff has not filed timely opposition to any of the discovery motions. As of this writing, the court’s records do not show that Plaintiff has filed a substitution of attorney, or that attorney Diefenbach has filed a motion to be relieved as Plaintiff’s counsel.

Court records further reflect that on August 29, 2025, the court issued a minute order to show cause why sanctions should not be imposed for counsel’s failure to appear at the August 29, 2025, case management conference held in this matter, for the failure to serve the complaint, and for the failure to file a case management conference statement. (Aug. 29, 2025, Minute Order.) The court set a hearing for that order to show cause on January 16, 2026, and directed Plaintiff’s counsel to file a declaration under penalty of perjury prior to the hearing on the order to show cause. (Ibid.)

As of this writing, Plaintiff’s counsel has not filed the declaration described in the court’s August 29, 2025, minute order.

Analysis:

(1) The Discovery Motions

A party who fails to serve a timely response to interrogatories directed to that party “waives any right to exercise the option to produce writings under [Code of Civil Procedure] [s]ection 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010).” (Code Civ. Proc., § 2030.290, subd. (a). “The party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290, subd. (b).)

A party who fails to serve a timely response to an inspection demand or to requests for admission directed to that party also waives any objection to that demand or those requests, “including one based on privilege or on the protection for work product under Chapter 4 (commencing with [Code of Civil Procedure] [s]ection 2018.010).” (Code Civ. Proc., § 2031.300, subd. (a), & § 2033.280, subd. (a).) The party making the inspection demand “may move for an order compelling response to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).) Further, the party requesting admissions “may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted....” (Code Civ. Proc., § 2033.280, subd. (b).)

The present record reflects that Plaintiff has failed to provide any responses to the RFP within the time provided in Code of Civil Procedure section 2031.260, subdivision (a), and section 1010.6, subdivision (a)(4)(B). For these reasons, under the circumstances present here, Alemann is not required to, among other things, demonstrate good cause for the RFP. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 (Sinaiko); see also Cal. Rules of Court, rule 3.1345(b)(1) [separate statement not required when no response is provided].)

Plaintiff also has not filed any opposition to the RFP Motion demonstrating that Plaintiff subsequently served a response to the RFP that is in substantial compliance with code requirements, or that any failure by Plaintiff to serve a timely response was due to mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2031.300, subd. (a)(1), (2); Sinaiko, supra, 148 Cal.App.4th at p. 404.) Plaintiff has also failed to show any legally sufficient excuse for Plaintiff’s failure to provide responses to the RFP. For these and all further reasons discussed above, the court will grant the RFP Motion and require Plaintiff to serve verified, code compliant responses to the RFP at issue, without objections including those based on privilege or work product.

The same reasoning and analysis apply in regard to Plaintiff’s failure to provide any responses to the FI and SI. For example, Plaintiff has also failed to file timely opposition to the Interrogatory Motion setting forth any “facts from which the trial court might find that the interrogatories were interposed for improper purposes” or why “the questions are not within the purview of the code section.” (Coy v. Superior Court (1962) 58 Cal.2d 210, 220; West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 422.) The present record also fails to reflect any legally sufficient excuse for Plaintiff’s ostensible failure to provide substantive or code compliant responses to the SI and FI. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 781 [a party is entitled to demand answers to interrogatories “as a matter of right” unless a valid objection is stated]; see also Brown v. Superior Court (1963) 218 Cal.App.2d 430, 437 [party seeking responses to interrogatories is not required to establish good cause].) For these and all further reasons discussed above, the court will grant the Interrogatory Motion and order Plaintiff to serve verified, code compliant responses to the FI and SI at issue, without objections including those based on privilege or work product.

For the same reasons further discussed above, the court will grant the RFA Motion and order that the genuineness of any documents and the truth of any matters specified in the RFA be deemed admitted by Plaintiff.

Noted above, each of the discovery motions requests an award of sanctions against Plaintiff. “The court shall impose a monetary sanction under Chapter 7 (commencing with [Code of Civil Procedure] [s]ection 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes” a motion to compel a response to a demand for inspection or 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.” (Code Civ. Proc., § 2030.290, subd. (c), & § 2031.300, subd. (c).) In addition, a party requesting admissions “may move for ... a monetary sanction under Chapter 7 (commencing with [Code of Civil Procedure] [s]ection 2023.010).”

Under Code of Civil Procedure section 2023.010, a “[m]isuse of the discovery process” includes the failure to respond to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)

Plaintiff has not filed any oppositions to the discovery motions showing why Plaintiff acted with substantial justification in failing to provide a timely response to the RFP, FI, SI, or RFA. Though, for all reasons discussed above, the present circumstances justify an award of sanctions to compensate Alemann for reasonable expenses incurred in connection with the preparation and filing of the discovery motions, “[t]he principle of reasonableness means a trial court has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.)

Notwithstanding that an award of sanctions against Plaintiff is justified under the circumstances present here, the court finds that the amount of attorney fees claimed in the discovery motions is excessive. The amount of any monetary sanctions awarded in this proceeding needs to reflect reasonable expenses incurred by Alemann as a result of any misuse of the discovery process by Plaintiff. While the court agrees Alemann’s counsel necessarily expended time to prepare the motions, the sanctions requested in the discovery motions also include time to review oppositions, which Plaintiff has not filed, and prepare replies. (Loveridge Decs., ¶¶ 11(a).)

The court further notes that the motions, which include duplicative information and arguments, are brief, present overlapping if not identical evidence and information, are not complex, do not involve a substantial number of discovery requests, and, for all reasons discussed above, did not require Alemann’s counsel to prepare separate statements or to show good cause. (See Sinaiko, supra, 148 Cal.App.4th at p. 404.)

Under the totality of the circumstances present here including the court’s experience with addressing attorney fee issues, and for all reasons discussed above, the court finds that 5.7 hours of time to prepare the RFA Motion, as stated in the Loveridge declaration, at Loveridge’s reasonable hourly rate of $205, constitutes the reasonable amount of attorneys fees incurred by Alemann as a result of the filing of that motion and Plaintiff’s misuse of the discovery process, and for which monetary sanctions are appropriately awardable. As to the RFP Motion and the Interrogatory Motion which are, in substance, essentially duplicative of the RFA Motion, the court finds that an additional 1 hour of time for each of those motions at the hourly rate described above is reasonable. The Court will also award filing fees incurred by Alemann in the amount of $60 for the RFP Motion, $60 for the Interrogatory Motion, and $60 for the RFA Motion. (See Loveridge Decs., ¶¶ 11(b).) The monetary sanctions awarded herein shall be payable to Alemann’s counsel.

The court has reviewed the proposed orders submitted by Alemann and does not intend to sign them. Alemann shall submit corrected proposed orders for the court’s review which conform to the court’s ruling herein.

(2) Order to Show Cause

“The imposition of sanctions, monetary or otherwise, is within the discretion of the trial court. That discretion must be exercised in a reasonable manner with one of the statutorily authorized purposes in mind and must be guided by existing legal standards as adapted to the current circumstances.” (Winikow v. Superior Court (2000) 82 Cal.App.4th 719, 726-727, citations and internal quotation marks omitted.)

Noted above, Plaintiff’s counsel has failed to file, as ordered by the court, a declaration under penalty of perjury showing legal justification for counsel’s failure to appear at the August 29, 2025, case management conference, for the failure to file a case management conference statement, and for the failure to serve the complaint. Counsel’s conduct in this regard has placed an inappropriate burden on the court resulting in the order to show cause issued on August 29, 2025, and described herein. For all reasons discussed above, Plaintiff’s counsel’s unjustified conduct warrants the imposition of sanctions. Accordingly, the court will impose sanctions on Plaintiff’s counsel, James C. Diefenbach, in the amount of $500.