Judge: Armen Tamzarian, Case: 23STCV10522, Date: 2024-02-21 Tentative Ruling

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Case Number: 23STCV10522    Hearing Date: February 21, 2024    Dept: 52

Plaintiff Raphael Cohen’s Motions to: (1) Compel Responses to Written Discovery, (2) Deem Admitted Truth of Facts and Genuineness of Documents in Requests for Admission, and (3) Compel Deposition Attendance and Production of Documents of Person Most Knowledgeable

(1) Motion to Compel Discovery Responses

            Plaintiff Raphael Cohen moves to compel defendant BMW of North America, LLC (BMW) to respond to form interrogatories, special interrogatories, and requests for production. 

When the responding party fails to timely respond to interrogatories or requests for production, the requesting party may move for an order compelling responses.  (CCP §§ 2030.290(b) [interrogatories]; 2031.300(b) [request for production].)  Failing to timely respond waives any objections.  (CCP §§ 2030.290(a); 2031.300(a).) 

            BMW ultimately served untimely responses to these discovery requests.  (Dao Decl., ¶¶ 4-5, Exs. A & B.)  Doing so does not deprive the court of jurisdiction to order responses without objections.  (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407-409.)  BMW’s untimely responses make numerous objections, including improper “general objections.”  BMW waived its objections.  The court will therefore order BMW to serve responses without objections.

(2) Motion to Deem Matters Admitted

Plaintiff Raphael Cohen moves for an order deeming admitted the matters specified in requests for admission to defendant BMW of North America, LLC.

If a party fails to timely respond to requests for admission, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.”  (CCP § 2033.280(b).)  “The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  (Id., subd. (c).)

BMW served a proposed response to the requests for admission before this hearing.  (Dao Decl., ¶ 3, Ex. A.)  The proposed response substantially complies with section 2033.220.  The court therefore cannot order the matters deemed admitted.

Plaintiff also moves for $2,846.75 in sanctions against BMW and its counsel, Brian M. Horn, Georges A. Haddad, C. Brian Wagner, and Vanessa Dao of Clark Hill LLP.  “It is mandatory that the court impose a monetary sanction … on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”  (CCP § 2033.280(c).)  Unlike the analogous provisions for other discovery motions, this subdivision makes no exception for a responding party who acted with substantial justification.  (See, e.g., CCP § 2031.300(c).)  The court will therefore sanction BMW and its counsel.  Plaintiff reasonably incurred all expenses he claims.

(3) Motion to Compel Deposition and Production of Documents

            Plaintiff Raphael Cohen moves to compel the deposition of defendant BMW North America, LLC’s person(s) most knowledgeable regarding 26 matters of examination and to compel production of 41 categories of documents requested in the notice of deposition.  One may move to compel the deposition of a party and move for production of requested documents when that party fails to appear at deposition or produce the requested documents “without having served a valid objection under Section 2025.410.”  (CCP § 2025.450(a).) 

            Plaintiff served notice of deposition of defendant’s person most knowledgeable and custodian of records on August 23, 2023.  (Saeedian Decl., ¶ 3, Ex. 1.)  BMW did not respond and did not serve any objections.  (Id., ¶¶ 5, 9.)  BMW did not oppose this motion.  Plaintiff is entitled to the order he seeks.

            Plaintiff again moves for $2,846.75 in sanctions against BMW and its counsel.  “If a motion” to compel deposition “is granted, the court shall impose a monetary sanction … in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2025.450(g)(1).)  Unlike the analogous provisions for other discovery motions, this subdivision does not provide for sanctions against the party’s attorney.  (See, e.g., CCP § 2031.300(c) [“the court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection”].)  The court therefore will not impose sanctions on BMW’s counsel.  The court finds BMW did not act with substantial justification.  Sanctions are just under the circumstances. 

            Plaintiff did not reasonably incur all $2,846.75 in expenses he claims.  That amount includes 1.5 hours of attorney fees at $695 per hour for time anticipated “analyzing any opposition and preparing a reply memoranda and preparing for and attending the hearing on this matter.”  (Saeedian Decl., ¶ 12(c).)  BMW did not file an opposition.  Plaintiff did not file a reply.  The court will therefore reduce the sanctions by 1 hour at $695 hourly.  The court will impose $2,151.75 in sanctions against BMW. 

Disposition

            Plaintiff Raphael Cohen’s motion to compel responses to written discovery is granted.  Defendant BMW of North America, LLC is ordered to serve verified responses without objections to plaintiff’s form interrogatories, special interrogatories, and requests for production within 60 days.  The parties are ordered to meet and confer within 20 days regarding whether defendant may obtain relief from waiver of its objections.

             Plaintiff Raphael Cohen’s motion for an order deeming matters admitted is granted in part as to sanctions only.  Defendant BMW of North America, LLC and its counsel, Clark Hill LLP, are ordered to pay plaintiff $2,846.75 in sanctions within 60 days.  Defendant and its counsel are jointly and severally liable for the sanctions.  

            Plaintiff Raphael Cohen’s motion to compel deposition and production of documents of defendant’s person(s) most knowledgeable is granted.  Defendant BMW of North America, LLC is ordered to produce for deposition its person(s) most knowledgeable on all 26 matters of examination and to produce the documents requested in all 41 categories within 60 days.  Defendant BMW of North America, LLC is ordered to pay plaintiff $2,151.75 in sanctions within 60 days.