Judge: Anne Hwang, Case: 20STCV00145, Date: 2023-09-19 Tentative Ruling

Case Number: 20STCV00145    Hearing Date: March 21, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            Defendant Adan Villareal (“Defendant”) moves to compel Plaintiff Matthew Morgan’s (“Plaintiff”) responses to Form Interrogatories, Set One and Request for Production of Documents, Set One. Defendant also seeks monetary sanctions.

            The motions were originally scheduled for March 14, 2024 and March 15, 2024. Plaintiff filed untimely oppositions on March 13, 2024, and the Court continued the hearings to the present date. (Min. Order 3/14/24.) On March 18, 2024, Defendant filed a reply.

LEGAL STANDARD

Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses. (Code Civ. Proc. § 2030.290 (b).) Failure to timely respond waives all objections, including privilege and work product, unless “[t]he party has subsequently served a response that is in substantial compliance” and “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2030.290 (a)(1), (a)(2).) The statute contains no time limit for a motion to compel where no responses have been served and no meet and confer is required when a party does not respond to discovery requests. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)  

If a motion to compel responses is filed, the Court shall impose a monetary sanction against the losing party “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 (c).) Further, “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).) 

Request for Production

Under Code of Civil Procedure Section 2031.300, if a party fails to serve a timely response to a demand for inspection, the party making the demand may move for an order compelling response to the demand. (Code Civ. Pro § 2031.300 (b).) The party who fails to serve a timely response to a demand for inspection waives any objection to the demand unless the court finds that the party has subsequently served a response that is in substantial compliance or party’s failure was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2031.300 (a)(1)- (2).)¿¿¿ 

¿¿ 

Courts shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection unless the party acted with substantial justification or other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.300 (c).) Further, “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)¿¿ 

DISCUSSION

Defendant asserts that on October 6, 2023, Defendant served Form Interrogatories, Set One and Request for Production of Documents, Set One on Plaintiff. (Mermelstein Decl. ¶ 4, Exh. A.) The responses were due November 6, 2023. (Ibid.) As of the date of filing this motion, no responses have been served. (Id. ¶ 7.)

In opposition, Plaintiff argues he was never served the discovery requests and notes he has never given express consent for electronic service. Notice of these motions were also served electronically.

Under Code of Civil Procedure section 1010.6(c), an unrepresented party may consent to receive electronic service. “Express consent to electronic service may be given by either of the following:

(i) Serving a notice on all parties and filing the notice with the court.

(ii) Manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.” (Code Civ. Proc. § 1010.6(c)(3).)

Here, the Court notes that Plaintiff has electronically filed his opposition. However, without any affirmative showing under section 1010.6, it does not appear that Plaintiff has consented to electronic service. In reply, though Defendant describes Plaintiff’s repeated practice of communicating electronically, Defendant does not cite to authority to support that Plaintiff has given consent.

Nonetheless, given that Plaintiff has opposed the motions and therefore has received copies of the outstanding discovery, the Court deems that Plaintiff has received notice of the discovery and responses are due within 30 days of this date. (See Code Civ. Proc. § 2030.260(a); Code Civ. Proc. § 2031.260(a).)

Moving forward, absent any express consent, Plaintiff must be served either personally or by mail (accounting for extra days if served by mail).

            In light of this ruling, the Court declines to award monetary sanctions.

CONCLUSION AND ORDER

Accordingly, Defendant’s Motions to Compel are granted. Defendant’s Form Interrogatories, Set One and Request for Production of Documents, Set One are deemed served on Plaintiff as of the date of this order. Plaintiff shall serve verified responses within 30 days.

Defendant to provide notice and file a proof of service of such.