Judge: Alison Mackenzie, Case: 21STCV04008, Date: 2023-12-15 Tentative Ruling

Case Number: 21STCV04008    Hearing Date: December 15, 2023    Dept: 55

NATURE OF PROCEEDINGS:  Motion of Plaintiff to Compel Responses to Written Discovery, Set Two; Request for Order Awarding Monetary Sanctions Against Defendant, Lumen Property Management, LLC in the Amount of $1,860.00;  Motion Thereof to Compel the Deposition of Person Most Qualified for Lumen Property Management, LLC and for Sanctions.

Both unopposed motions are granted, as prayed.  The Court will sign and file a proposed order to be prepared by the moving party.

On 2/1/21, MATTHEW SHELLEY (“Plaintiff”) filed a Complaint alleging that LUMEN PROPERTY MANAGEMENT, LLC (“co-Defendant”) breached a loan agreement, by failing to timely repay the loan plus interest.  The causes of action are:  (1) Breach of Contract;  (2) Breach of Covenant Of Good Faith And Fair Dealing;  (3) Breach of Fiduciary Duty;  and (4) Negligent Misrepresentation.

On 6/13/23, the Court filed an order allowing counsel to withdraw as counsel of record for co-Defendant, pursuant to its reported consent and desire not to pay for counsel representation. To date, no attorney has substituted in to represent co-Defendant, a limited liability company.

Plaintiff filed unopposed motions:  1) to compel co-Defendant to serve initial responses to Form Interrogatories, Special Interrogatories, and Requests for Production of Documents (Set Two), and to impose sanctions against co-Defendant in the sum of $1,860.00, due to no responses served;  and 2)  to compel the deposition of the person most knowledgeable of co-Defendant, as well as to impose issue or evidentiary sanctions, and monetary sanctions, against co-Defendant, in the sum of $2,895.00, due to nonattendance and noncommunication.

A motion to compel initial discovery responses need only show that discovery was properly served on the opposing party, the time to respond expired, and no response was served.  Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06; CCP §§2030.290 (compelling initial interrogatory responses), 2031.300 (compelling initial document requests).

“Code of Civil Procedure section 2025, subdivision (d)(6), provides that if a deposition notice describes matters on which examination is requested, ‘the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.’"  Maldonado v. Sup. Ct. (2002) 94 Cal. App. 4th 1390, 1395-98.

Based on proof of co-Defendant’s failures to serve initial discovery responses, to produce a person most knowledgeable for deposition, to meet and confer, and to arrange for an attorney to file oppositions on behalf of the corporation, both motions are granted, as prayed.

Monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4^th 1542, 1557-58. Here, co-Defendant failed to oppose the motions, let alone show substantial justification for failing to respond to the discovery requests and deposition notice. Sanctions therefore are mandatory.

Co-Defendant has not obtained counsel in the six months following the order granting prior counsel’s motion to be relieved as counsel. Co-Defendant cannot proceed in this case without counsel. Gamet v. Blanchard (2001) 91 Cal. App. 4th 1276, 1284. The Court therefore will set an OSC why the Court should not strike co-Defendant’s answer for failure to obtain counsel, to be held approximately 45 days from the hearing.