Judge: Anne Hwang, Case: 21STCV37966, Date: 2023-08-23 Tentative Ruling

Case Number: 21STCV37966    Hearing Date: January 30, 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

            Plaintiff Mignon Smith (Plaintiff), moves to compel Defendant Ronald Francis Gilmartin’s (Defendant) responses to Request for Production of Documents, Set One, Form Interrogatories, Set One, and Special Interrogatories, Set One. Plaintiff seeks monetary sanctions. Defendant opposes.

LEGAL STANDARD

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).) 

DISCUSSION

Here, Plaintiff shows that she served Request for Production of Documents, Set One, Form Interrogatories, Set One, and Special Interrogatories, Set One on Defendant on May 24, 2023. (Mashburn Decl. ¶ 3, Exh. 1.) Responses were due June 27, 2023. (Id. ¶ 4.) Plaintiff then conferred with Defendant and granted extensions to respond, without objections. On August 24, 2023, Defendant served unverified responses with objections. (Id. ¶ 7–8, Exh. 2.) As of the filing of this motion, Defendant had not served verified responses. 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.)¿   

In opposition, Defendant argues Plaintiff’s motion is actually to compel further answers and separately moves for relief from the waiver of objections due to mistake, inadvertence and/or excusable neglect. Defendant contends he executed the verification page for the discovery responses on September 6, 2023. (Spearman Decl. ¶ 7, Exh. 6.)  

First, if Defendant moves for relief from waiver of objections, he must bring a separately noticed motion. (See Code Civ. Proc. § 2030.290(a) [“The court, on motion, may relieve that party from this waiver . . . .”].) Therefore, the Court will not address Defendant’s request in opposition.

Second, upon reviewing Defendant’s verification statements in exhibit 6, the Court finds them to be deficient. Under Code of Civil Procedure section 2015.5, whenever a statute requires a matter to be supported by a verification, the writing must “recite[] that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.”

Here, Defendant’s verifications do not follow the proper format under section 2015.5 and are not signed “under penalty of perjury.” Merely stating that Defendant believes the matters to be true is insufficient.

Therefore, finding that Defendant has not served verified responses, the motions to compel are granted.

Plaintiff requests $1,260 in sanctions for each motion (two total), representing an hourly rate of $400 and the $60 filing fee. The Court finds sanctions are warranted but the amount requested is excessive. Therefore, the Court awards sanctions in the amount of $1,320.00 (1.5 hours of attorney time to file and appear at the hearing, plus the $60 filing fee, for each of the two motions). 

CONCLUSION AND ORDER

Accordingly, Plaintiff’s Motions to Compel are GRANTED. Defendant shall serve properly verified responses, without objections, to Production of Documents, Set One, Form Interrogatories, Set One, and Special Interrogatories, Set One, within 10 days.

The Court awards monetary sanctions to Plaintiff against Defendant and his counsel of record, jointly and severally, in the reduced amount of $1,320.00. Said monetary sanctions are to be paid to counsel for Plaintiff within 30 days of the date of this order.  

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