Judge: Ashfaq G. Chowdhury, Case: 23AHCV00021, Date: 2024-04-05 Tentative Ruling
Case Number: 23AHCV00021 Hearing Date: April 5, 2024 Dept: E
Hearing Date: 04/05/2024 – 8:30am
Case No. 23AHCV00021
Trial Date: UNSET
Case Name: JOSE BLANCO, et al. v. LEVON H. BARDAKJIAN, et al.
TENTATIVE
RULING – COMPEL RESPONSES
RELIEF REQUESTED¿
Defendants,
1001 Las Lomas, LLC will move the Court for an order compelling discovery
responses and monetary sanctions from Plaintiffs: Jose Blanco and Jacinta
Blanco.
The
Motion is based on Civil Code Procedure §2031.010, 2031.300, and 2031.210 this
Notice, the attached Memorandum of Points and Authorities, the Declaration of
Patrick J. Torsney, Esq., the court file and on such further information as may
be presented at the hearing.
The
Court notes that Movant refers to itself as “Defendants.” It appears as if this
motion was filed by one Defendant, not multiple Defendants. This motion appears
to be filed by Defendant, 1001 Las Lomas, LLC. The Court will presume there is
one moving Defendant. At the hearing, the Movant should provide clarification
on this issue.
PROCEDURAL
Moving Party: Defendant,
1001 Las Lomas, LLC (Movant)
Responding Party: No Opposition by Plaintiff(s)
Moving Papers: Notice/Motion; Notice of Continuance
Opposition Papers: No Opposition
Reply: No Reply
Procedural
16/21
Day Lapse (§1005(b)): Discussed in Analysis
Proof of Service Timely Filed (CRC, Rule 3.1300): Discussed in Analysis
Correct Address (CCP §1013, §1013a): Discussed in Analysis
LEGAL STANDARD – COMPEL RESPONSES, INSPECTION DEMANDS
Within
30 days after service of a demand for inspection, copying, testing, or
sampling, the party to whom the demand is directed shall serve the original of
the response to it on the party making the demand, and a copy of the response
on all other parties who have appeared in the action, unless on motion of the
party making the demand, the court has shortened the time for response, or
unless on motion of the party to whom the demand has been directed, the court
has extended the time for response. (CCP §2031.260(a).)
If a party to whom a demand for inspection, copying,
testing, or sampling is directed fails to serve a timely response to it, the
party making the demand may move for an order compelling response to the
demand. (CCP §2031.300(b).)
If a party to whom a demand for inspection, copying,
testing, or sampling is directed fails to serve a timely response to it, the
party to whom the demand for inspection, copying, testing, or sampling is
directed waives any objection to the demand, including one based on privilege
or on the protection for work product under Chapter 4 (commencing with Section
2018.010). (CCP §2031.300(a).) “The court, on motion, may relieve that
party from this waiver on its determination that both of the following
conditions are satisfied: (1) The party has subsequently served a response that
is in substantial compliance with Sections 2031.210, 2031.220, 2031.230,
2031.240, and 2031.280. (2) The party’s failure to serve a timely response was
the result of mistake, inadvertence, or excusable neglect.” (CCP §2031.300(a)(1)-(2).)
Unlike a motion to compel further responses, a motion
to compel responses is not subject to a 45-day time limit, and the propounding
party does not have to demonstrate either good cause or that it satisfied a
“meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc. v.
Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404
citing Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2006) ¶¶8:1137 to 8:1144, pp. 8F-59 to 8F-60, ¶¶ 8:1483 to 8:1489,
pp. 8H-29 to hH-30 (Weil & Brown).)
ANALYSIS
Filing Fees/Parties
It is not entirely
clear to whom Defendant is directing this motion at. The Notice of Motion
indicates that Defendant seeks an order compelling discovery responses and
monetary sanctions from Plaintiffs Jose Blanco and Jacinta Blanco. If Defendant
is seeking to compel responses from two different Plaintiffs, it would appear
as if Defendant should have filed two motions – one motion seeking to compel
responses/sanctions from one Plaintiff, and another motion seeking to compel
responses/sanctions from another Plaintiff. It appears that this would be the
case because one set of request for production was served on Jacinta, and one
set of request for production was served on Jose.
A motion must be brought separately as to each
discovery method at issue. The instant motion should have been filed as two
separate motions and two filing fees paid. Instead, Defendant filed only one
motion to compel further responses pertaining to two different Plaintiffs. “[P]ayment of filing fees is both mandatory
and jurisdictional.” (Hu vs. Silgan
Containers Corp. (1999) 70 Cal. App. 4th 1261, 1269.)
The Court will hear argument as to if it can
consider this motion, and which Plaintiff it could consider this motion to be
directed at, and if there is a notice here.
Service
16/21
Day Lapse (§1005(b)): Uncertain
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Uncertain
In
the 11/17/2023 Minute Order, the Court held a hearing on a motion to be
relieved as counsel as to Jose Blanco and a motion to be relieved as counsel as
to Jacinta Blanco.
These
two motions to be relieved as counsel, filed by Maria Giragossian on 9/5/2023,
were granted. The instant motion was filed/served on 11/20/2023, which is after
11/17/2023; therefore Plaintiffs Jacinta and Jose would not have been
represented by counsel at the time this motion was filed/served.
The
instant motion contains two proofs of service. The first proof of service appears
to be the proof of service pertaining to Plaintiffs/Defendants represented by
counsel. However, the second proof of service, also dated 11/20/2023, is the
relevant proof of service for this motion since it pertains to Plaintiffs, in
pro per, Jose and Jacinta. As to the proof of service for Jose and Jacinta, it
is unclear if the addresses on the proof of service for Jose and Jacinta are
correct because eCourt does not list Jose and Jacinta’s address. Further, the
proof of service does not indicate what was served upon Jose and Jacinta. For
example, the first proof of service pertaining to Plaintiffs/Defendants
represented by counsel indicates that the notice of motion/motion/memo/declaration
was served. However, for the instant proof of service, it only indicates that
“Proof of Service” was allegedly served. It does not indicate that any
documents pertaining to the instant motion was served.
These
issues needs to be discussed at the hearing.
Substantive
Analysis
On
4/10/2023, Request for Production of Documents and Other Tangible Items, Set
No. One, was served on Jacinta and Jose’s prior counsel because on 4/10/2023
Jacinta and Jose were still represented by counsel. On 5/8/2023 and 5/31/2023,
Jose and Jacinta’s counsel requested extensions to respond. On 7/14/2023, Jose
and Jacinta’s counsel emailed Defendant’s counsel and stated that despite
several attempts, counsel had not been able to get in touch with several of
their clients, including Jose and Jacinta. Plaintiff’s counsel also stated in
the email that because of the lack of responses and inability to contact their
clients, counsel would be filing a motion to be relieved as counsel. Moving
Defendant’s counsel, Torsney, states in his declaration that as of this date
[8/10/2023], there has been no response to Defendant’s discovery request.
Since
over 30 days has passed, and since the extension deadline has passed, Jose and
Jacinta have waived objections for failing to timely provide initial responses.
TENTATIVE RULING MOTION
Ordinarily,
this motion appears to provide a basis to compel initial responses and award
sanctions. However, there are several issues that have not been resolved.
In particular – filing fees and failing to file two
motions; are there issues with respect to notice if the Court arbitrarily picks
which Plaintiff (Jose or Jacinta) this motion is to apply to; and whether this
motion was actually served since the Court is unclear what address should have
been served and since the proof of service never indicated what was served, if
in fact it was served?
Sanctions
In relevant part, 2031.300(c) states as follows:
Except as provided
in subdivision (d), the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel a response to a demand for inspection,
copying, testing, or sampling, 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.
(CCP
§2031.300(c).)
“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(a).)
The Court notes that in both the notice of the motion
and memorandum, Movant never states how much Movant is requesting in sanctions.
Movant simply argues that because Plaintiff refused to answer the discovery
requests, this demonstrates the type of willful disregard that demonstrates
lack of substantial justification in failing to respond to discovery and
warrants monetary sanctions.
It isn’t until the Torsney declaration that the amount of sanctions is specified. Torsney states that as a result of the failure of Plaintiff to answer the discovery requests, Defendant incurred reasonable expenses in preparing and filing this motion, including attorney’s fees in the amount of $615.00 for the time and expense in drafting, filing, and presenting this motion. Torsney requests $60.00 for the filing fee and $555.00 based on 3 hours of work at $185 per hour for a total of $615.00. The Court will hear argument.