Judge: Anne Hwang, Case: 23STCV06605, Date: 2024-12-02 Tentative Ruling

Case Number: 23STCV06605    Hearing Date: December 2, 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 Johnny Martin (“Plaintiff”) moves to compel Defendant Nicholas O’Donovan (“Defendant”) to serve verified responses, without objections, to Demand for Identification and Production of Documents, Set One, and Form Interrogatories, Set One. Plaintiff seeks monetary sanctions. A belated opposition was filed by Defendant.

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).)

Requests 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

Here, Plaintiff served Demand for Identification and Production of Documents, Set One, and Form Interrogatories, Set One, on Defendant on September 9, 2024. (Marchiondo Decl. ¶ 4, Exh. 1.) The responses were due October 11, 2024. Since then, no responses have been served. (Id. ¶ 6.) In opposition, counsel for Defendant asserts that Defendant has been unable to verify the responses because he is incarcerated. As of the filing of the opposition, November 19, it appears that verified responses still have not been served. Accordingly, the motions are granted.

Plaintiff also requests $3,250 in monetary sanctions for each of the two motions, against Defendant and his counsel of record. This represents an hourly rate of $500. (Marchiondo Decl. ¶ 7.) The Court finds sanctions are warranted because Defendant has failed to respond. Defendant has not set forth in counsel’s declaration sufficient facts regarding Defendant’s incarceration for the Court to find the failure to respond was with substantial justification or the imposition of sanctions would be unjust. However, the amount requested is excessive given the type of motion, lack of opposition and the fact Plaintiff can appear remotely at the hearing. Therefore, the Court awards sanctions in the total amount of $1,500 (1.5 hours of attorney time, for each motion). 

CONCLUSION AND ORDER

Accordingly, Plaintiff’s Motions to Compel Demand for Identification and Production of Documents, Set One, and Form Interrogatories, Set One are GRANTED. Defendant Nicholas O’Donovan shall provide verified responses, without objection, within 20 days.

The Court further GRANTS Plaintiff’s request for monetary sanctions against Defendant and his attorney of record, jointly and severally, in the reduced amount of $1,500.00. 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.