Judge Anne Hwang, Case Number: 21STCV17364, Date: 2024-07-17 Tentative Ruling

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.

Defendants Angie Enterprises, Inc. and First Bargain, Inc. (“Defendants”) move to compel Plaintiff Olga Ochoa (“Plaintiff”) to serve verified responses, without objections, to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Defendants seek monetary sanctions. No opposition has been filed.

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).)

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).)

Here, Defendants served Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One, on Plaintiff on January 18, 2023. (Gates Decl. ¶ 3, Exh. A.) Plaintiff served responses without a verification on June 1, 2023.[1] (Id. ¶ 4, Exh. B.) The responses contain objections and substantive responses. Defendants contend that Plaintiff has not served verifications for the discovery. It appears that extensions were unilaterally provided until April 3, 2024. (Id., Exh. C.)

When hybrid responses (objections and responses) have been served, the responses that contain only objections do not require a verification (See Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657.) As to the substantive responses, “[t]he omission of the verification in the portion of the response containing fact-specific responses . . . renders that portion of the response untimely and therefore only creates a right to move for orders and sanctions . . . as to those responses but does not result in a waiver of the objections made.” (Food 4 Less Supermarkets, Inc., supra, 40 Cal.App.4th at 657–58.)

Unverified discovery responses are tantamount to no response at all, and are subject to a motion to compel responses (rather than a motion to compel further responses).¿ (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 635-36.)¿

Therefore, because verifications to the responses have not been served, they are tantamount to no response at all. Moreover, as to the responses that are only objections, it appears those objections were untimely and therefore waived. Accordingly, the motions to compel are granted.

Defendants also requests $720 in monetary sanctions for each of the three motions, against Plaintiff and counsel of record. This represents an hourly rate of $165 and the $60 filing fee. (Gates Decl. ¶ 9.) The Court finds sanctions are warranted because Plaintiff has failed to respond. However, the amount requested is excessive given the type of motion, lack of opposition, and the fact counsel can appear at the hearing remotely. Therefore, the Court awards sanctions in the total amount of $922.50 (1.5 hour of attorney time, plus the filing fee, for each motion).

Accordingly, Defendants’ Motions to Compel Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One are GRANTED. Plaintiff Olga Ochoa shall provide verified responses, without objection, within 15 days.

The Court further GRANTS Defendants’ request for monetary sanctions against Plaintiff and Plaintiff’s counsel, jointly and severally, in the reduced amount of $922.50. Said monetary sanctions are to be paid to counsel for Defendants within 30 days of the date of this order.

Defendants shall provide notice of the Court’s order and file a proof of service of such.

Plaintiff Olga Ochoa’s (Plaintiff) counsel of record, Bradley S. Wallace, Esq. and The Wallace Firm, PC (Counsel), moves to be relieved as counsel for Plaintiff. Counsel contends relief is necessary because there has been a breakdown in the attorney-client relationship.

To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal.

An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197; People v. Prince (1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. (Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391.)

The rules have been liberally construed to protect clients. (Vann v. Shilleh, supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney “shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.” (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the client’s case. (CRPC 3.700(A)(2); Vann v. Shilleh, supra.)

Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required. (Cal Rules of Court, rule 3.1362.) Counsel states the instant motion is filed for the following reason: “Attorney and client have a conflict of interest that precludes further representation of client. There has been a break down in the attorney client relationship that precludes further representation. Attorney is unable to represent client as a result of this breakdown and conflict. Due to the nature of the breakdown and conflict, attorney is precluded from disclosing the exact nature of the breakdown and conflict in this Declaration [California Rules of Professional Conduct 3-1700[a] - attorney withdrawal must not prejudice client] but will discuss the nature of the conflict with the court in camera if so required.” (MC-052.) The Court finds this is a valid reason for withdrawal. (See CRPC 1.16.)

Counsel has provided information for all future proceedings in this case and served notice to all parties in the matter. However, the Court notes that the final status conference is set for July 17, 2024, and trial is set for August 1, 2024. The Court notes that a motion to continue was filed by Defendants on May 31, 2024 and is set for July 23, 2024.[2] No opposition has been filed. Without a continuance of the trial date, the Court finds that relieving counsel will result in prejudice to Plaintiff.

Accordingly, given the lack of opposition to the motion to continue trial, the Court advances and vacates the hearing date on the motion and grants a continuance. In light of the new trial date, the Court grants the motion to be relieved.

Accordingly, the Court GRANTS the motion to relieve counsel. Counsel must file an amended proposed order with the new dates within 5 days and serve Plaintiff. Counsel must also file a proof of service of the signed amended proposed order within 10 days. Counsel will remain as counsel of record until the proof of service is filed.

The Court GRANTS the motion to continue trial. The hearing on the motion to continue trial is advanced and vacated.

Trial is continued to January 23, 2025 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

The Final Status Conference is continued to January 9, 2025 at 10:00 a.m. in Department 32 of the Spring Street Courthouse.

Counsel shall provide notice of the Court’s ruling and file proofs of service of such.

[1] Though this motion asserts that Defendants served discovery responses, only responses to Defendant First Bargain, Inc. are shown in the exhibits.

[2] The motion requests a 6 month continuance on the basis that counsel was reassigned the file as of May 24, 2024 and various motions to compel discovery are set to be heard.

DEPT:	32
HEARING DATE:	July 17, 2024
CASE NUMBER:	21STCV17364
MOTIONS:	(1) Compel Plaintiff’s Answer to Demand for Production of Documents (2) Compel Plaintiff’s Answer to Form Interrogatories (3) Compel Plaintiff’s Answer to Special Interrogatories
MOVING PARTY:	Defendants Angie Enterprises, Inc. and First Bargain, Inc.
OPPOSING PARTY:	None

DEPT:	32
HEARING DATE:	July 17, 2024
CASE NUMBER:	21STCV17364
MOTIONS:	Motion to be Relieved as Counsel
MOVING PARTY:	Plaintiff Olga Ochoa’s Counsel
OPPOSING PARTY:	None