Judge: Alison Mackenzie, Case: 21STCV13121, Date: 2023-11-14 Tentative Ruling

Case Number: 21STCV13121    Hearing Date: November 16, 2023    Dept: 55

Motion to Compel Further Document Responses

In this legal malpractice case, Defendant WFBM moves for an order compelling responses of Cross-Defendant Frank Fletcher to the first set of requests for production of documents without objections, production of all responsive documents and for sanctions against Cross-Defendant in the amount of $2,180.00. 

Defendant contends that Cross-Defendant has yet to provide any responses to the requests propounded, which has resulted in a waiver of objections for failing to timely respond to discovery (citing, e.g., CCP  § 2031.300(a)).   

Cross-Defendant served responses before filing his opposition. The Court therefore exercises its discretion to take the motion to compel off calendar as moot. The Court also declines to impose sanctions against Cross-Defendant because arguably CCP  § 2031.320, which mandates sanctions for a party “who unsuccessfully makes or opposes a motion to compel” does not apply in cases like this where the motion to compel is moot. Even if Section 2031.320 did apply, however, the Court finds that Cross-Defendant’s opposing arguments are substantially justified and thus sanctions are unwarranted.

Cross-Defendant has separately filed a motion for relief from waiver of his objections to the document requests, which is set for hearing in April 2024. The Court will discuss with the parties at the hearing a plan for a) scheduling an IDC on the waiver issue regarding both Cross-Defendant and Cross-Defendant Outside GC, LLC  to prevent additional, costly motion practice, and b) moving the hearing on Cross-Defendant’s motion so that it can be heard simultaneously with the motion for relief from waiver filed by Cross-Defendant Outside GC, LLC.