Judge: Anne Richardson, Case: 22STCV10994, Date: 2024-01-19 Tentative Ruling

Case Number: 22STCV10994    Hearing Date: January 19, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Abel Nevarez sues Defendant Norberto Fregoso, Complete Industrial Repair, Inc., and Does 1-15 pursuant to a September 8, 2022 First Amended Complaint (FAC) alleging claims of (1) Breach of Written Contract, (2) Breach of Oral Contract, (3) Breach of Implied Covenant of Good Faith and Fair Dealing, (4) Conversion, (5) Breach of Fiduciary Duty, (6) Fraud and Deceit, and (7) Accounting.

The claims arise from allegations that Defendants failed to comply with the terms of agreements between Nevarez and Fregoso relating to the establishment of a thermal spray services partnership between them.

On October 13, 2022, Defendant Fregoso filed an Answer to Complaint.

That same day, Defendant Fregoso filed a Cross-Complaint suing Plaintiff Nevarez and Roes 1-20 pursuant to claims of (1) Dissolution of Partnership, (2) Breach of Partnership Agreement, (3) Breach of Fiduciary Duty, (4) Accounting, (5) Intentional Misrepresentation, and (6) Negligent Misrepresentation.

On November 4, 2022, Plaintiff Nevarez filed a substitution of attorney, which substituted out counsel and noticed Plaintiff’s appearance in pro per.

On December 12, 2022, Plaintiff Nevarez filed a notice of limited scope of representation for the “01/23/2024” hearing, with Cristina M. Saca, Esq. of the Law Office of Cristine M. Saca substituting in.

On December 13, 2022, Plaintiff Nevarez filed an Answer to Cross-Complaint. The Answer to Cross-Complaint is signed by Cristina Saca as counsel for Plaintiff Nevarez.

On May 11, 2023, Defendant Fregoso served a Form Interrogatories – General, Set One (FROGs, Set One), a Special Interrogatories, Set One (SROGs, Set One), a Request for Production of Documents, Set One (RPDs, Set One), and a Request for Admission, Set One (RFAs, Set One).

On August 28, 2023, due to Plaintiff Nevarez’s nonresponse, Defendant Fregoso’s counsel emailed Nevarez’s counsel—Cristina Saca—regarding the failure to respond to Plaintiff’s discovery.

On September 1, 2023, according to Fregoso’s Declaration and Exhibit C attached thereto, Nevarez’s counsel responded by indicating that she was no longer able to serve as Plaintiff’s counsel and requested 30 days for Plaintiff to respond.

Defendant Fregoso’s counsel ultimately assented to the request. However, Plaintiff never served responses or made production.

As a result, on November 3, 2023, Defendant Fregoso filed motions to compel Plaintiff Nevarez’s initial responses to FROGs, Set One, SROGs, Set One, and RPDs, Set One, and to admit the requests for admission in RFAs, Set One. All four motions seek monetary sanctions from Plaintiff Nevarez and were served on Plaintiff Nevarez and Cristina Saca by mail at the addresses reflected in Plaintiff’s substitution of attorney filing and the notice of limited scope of representation filing for Cristina Saca (hereafter, Plaintiff’s and Saca’s addresses).

On November 4, 2023, the substitution of attorney was filed, substituting in Mr. Nevarez in pro per.

On November 6, 2023, at a Status Conference re: ADR, plaintiff appeared without his counsel and said he was now unrepresented. The minute order from that hearing reflects that he was informed that he “needs to file responses to the motions to compel.”

Plaintiff Nevarez failed to oppose the four motions, which are now before the Court.

Motions to Compel Initial Responses to Interrogatories and Production and to Admit Admission Requests

I.

Legal Standard – Interrogatories and Production

A motion to compel an initial response can be made on the ground that a party did not serve a timely response to interrogatories or a demand to produce. (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [demand to produce]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 (Sinaiko).) To establish this ground, a movant must show:

(1) Proper service (see Code Civ. Proc., §§ 2030.080, subd. (a) [interrogatories], 2031.040 [demand to produce]);

(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., §§ 2030.260, subds. (a), (b) [interrogatories], 2031.260, subds. (a), (b) [demand to produce]); and

(3) No timely response (see Code Civ. Proc., §§ 2030.290 [interrogatories], 2031.300 [demand to produce]).

A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See CBS, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)

Order Compelling Initial Responses: GRANTED.

Defendant Fregoso shows evidence reflecting service of FROGs, Set One, SROGs, Set One, and RPDs, Set One on Plaintiff Nevarez by mail to Plaintiff’s and Saca’s addresses on May 11, 2023. (FROGs Mot., Marchetti Decl., Ex. A, Proof of Service; SROGs Mot., Marchetti Decl., Ex. A, Proof of Service; RPDs Mot., Marchetti Decl., Ex. A, Proof of Service.)

Defendant Fregoso shows facts permitting the conclusion that the expiration of the deadline to respond to this discovery occurred. (FROGs Mot., Marchetti Decl., ¶¶ 3-4, 6 [discussing no responses from Plaintiff; implies 30 day-statutory deadline from May 11, 2023 service, yielding Monday, June 12, 2023 response date]; SROGs Mot., Marchetti Decl., ¶¶ 3-4, 6 [same]; RPDs Mot., Marchetti Decl., ¶¶ 3-4, 6 [same].)

Defendant Fregoso shows that Plaintiff Nevarez has not served responses or production to FROGs, Set One, SROGs, Set One, and RPDs, Set One. (FROGs Mot., Marchetti Decl., ¶¶ 3-4, 6 [discussing no responses from Plaintiff]; SROGs Mot., Marchetti Decl., ¶¶ 3-4 [same], 6; RPDs Mot., Marchetti Decl., ¶¶ 3-4, 6 [same].)

A review of FROGs, Set One, SROGs, Set One, and RPDs, Set One, shows that the requests are within the scope of discovery because they seek information that is germane to a determination of liability in this action.

Defendant Fregoso’s motions to compel initial responses to FROGs, Set One, SROGs, Set One, and RPDs, Set One are thus GRANTED.

II.

Legal Standard – Admissions

The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see Appleton v. Superior Court, supra, 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovery party must make the motion. (See Code Civ. Proc., § 2033.280, subd. (b).)

To establish this ground, a movant must show:

(1) Proper service (see Code Civ. Proc., § 2033.070);

(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2033.250, subds. (a), (b)); and

(3) That (a) the responding party served no response (Code Civ. Proc., § 2033.280, subd. (b)), (b) the propounding party served a late response (Code Civ. Proc., § 2033.280, subd. (b)); or (3) the responding party served an unsworn response (see Appleton v. Superior Court, supra, 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response]).

A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See CBS, Inc. v. Superior Court, supra, 263 Cal.App.2d at p. 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)

Order Deeming RFAs Admitted: GRANTED.

Defendant Fregoso shows evidence reflecting service of RFAs, Set One on Plaintiff Nevarez by mail to Plaintiff’s and Saca’s addresses on May 11, 2023. (RFAs Mot., Marchetti Decl., Ex. A, Proof of Service.)

Defendant Fregoso shows facts permitting the conclusion that the expiration of the deadline to respond to this discovery occurred. (RFAs Mot., Marchetti Decl., ¶¶ 3-4, 6 [discussing no responses from Plaintiff; implies 30 day-statutory deadline from May 11, 2023 service, yielding Monday, June 12, 2023 response date].)

Defendant Fregoso shows that Plaintiff Nevarez has not served responses to RFAs, Set One. (RFAs Mot., Marchetti Decl., ¶¶ 3-4, 6 [discussing no responses from Plaintiff].)

A review of RFAs, Set One, shows that the requests are within the scope of discovery because they seek information that is germane to a determination of liability in this action.

Defendant Fregoso’s motions to admit RFAs, Set One is thus GRANTED.

III.

Legal Standard – Sanctions

The Court must impose monetary sanctions against anyone—party, nonparty, or attorney—who unsuccessfully makes or opposes the motion, unless it finds that the person to be sanctioned acted withs substantial justification or other circumstances make the imposition of the sanctions unjust. (See Code Civ. Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [demand to produce]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404 [interrogatories and demand to produce].)

The Court must also award sanctions when a party’s response is untimely, and the discovering party makes a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c); see Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31-32; see e.g., Appleton v. Superior Court, supra, 206 Cal.App.3d at pp. 635-636 [sanctions are mandatory].)

The 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, subd. (a).)

Order Granting Sanctions: GRANTED, in part.

Here, despite service of the four motions on Plaintiff Nevares by mail to Plaintiff’s and Saca’s addresses, Plaintiff has failed to respond to an authorized method of discovery—the FROGs, SROGs, RPDs, and RFAs—for which reason sanctions are merited. (See All Motions, Proof of Service; see Code Civ. Proc., § 2023.010, subd. (d); Cal. Rules of Court, rule 3.1348, subd. (a).)

However, the Court finds that the sanctions sought by Defendant Fregoso are excessive. For each of the four motions, Defendant Fregoso seeks $1,861.65 in sanctions, comprised of one hour drafting each motion, two anticipated hours replying to any opposition and attending the hearing, at a rate of $600 per hour, plus $61.65 in costs related to reserving this motion on calendar. (All Motions, p. 4, Marchetti Decl., ¶¶ 9-11.)

Because Plaintiff Nevarez filed no opposition, no compensation is required for replying to any opposition.

Moreover, sanctions are excessive insofar as Defendant Fregoso seeks recovery for four hours expended by counsel in drafting each of the four motions at issue at this hearing, one hour per motion. A comparison of all four motions and their supporting declarations shows that they are essentially identical to one another. (Compare FROGs Mot., pp. 1-4, Marchetti Decl., ¶¶ 1-11, Exs. A-C [only Ex. A differing], with SROGs Mot., pp. 1-4, Marchetti Decl., ¶¶ 1-11, Exs. A-C [only Ex. A differing], and RPDs Mot., pp. 1-4, Marchetti Decl., ¶¶ 1-11, Exs. A-C [only Ex. A differing], and RFAs Mot., pp. 1-4, Marchetti Decl., ¶¶ 1-11 [only Ex. A differing].) It is reasonable to expect that one of these briefs was typed up, completed with attachments, and modified for the purposes of the other three motions within 2.5 hours. A single hour expended by counsel in attending this hearing for all four motions is proper and reasonable, as are all the costs.

Sanctions for each of the four motions are thus GRANTED, in part, at a rate of $600 per hour, times 3.5 hours, plus $61.65 in costs, for total sanctions of $2,161.65.

Conclusion

I.

Defendant Norberto Fregoso’s Motion to Compel Responses to Form Interrogatories is GRANTED.

Defendant Norberto Fregoso’s Motion to Compel Responses to Special Interrogatories is GRANTED.

Defendant Norberto Fregoso’s Motion to Compel Responses to Document Requests is GRANTED.

Plaintiff Abel Nevarez is ORDERED to provide responses, without objection, to (1) Form Interrogatories – General, Set One, (2) Special Interrogatories, Set One, and (3) Request for Production of Documents, Set One, within 21 days of this order or notice of ruling, whichever is later. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a) [waiver of objections through nonresponse].)

II.

Defendant Norberto Fregoso’s Motion to Compel [sic] Have Deemed Admitted is GRANTED.

The admission requests in Defendant Norberto Fregoso’s Request for Admission, Set One, are DEEMED ADMITTED against Plaintiff Abel Nevarez. (Code Civ. Proc., § 2033.280, subd. (b).)

III.

Defendant Norberto Fregoso’s Requests for Sanctions are GRANTED, in part, in the total amount of $2,161.65.

Plaintiff Abel Nevarez is ORDERED to remit payment of $2,161.65 to Defendant Norberto Fregoso within 21 days of this order or notice of ruling, whichever is later. (Code Civ. Proc., § 2023.010, subd. (d); Cal. Rules of Court, rule 3.1348, subd. (a).)