Judge Ashfaq G. Chowdhury, Case Number: 23AHCV00946, Date: 2024-04-05 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23AHCV00946, Date: 2024-04-05 Tentative Ruling

Case Number: 23AHCV00946 Hearing Date: April 5, 2024 Dept: E

Hearing Date: 04/05/2024 – 8:30am
Case No. 23AHCV00946
Trial Date: 04/07/2025
Case Name: SCHIMLEY ALTHOUSE LLP v. CHRISTOPHER J. THOMPSON, et al.

TENTATIVE RULING – COMPEL RESPONSES

RELIEF REQUESTED¿
“Plaintiff, Schimley Althouse LLP, moves the Court for the following Orders:

1. For an Order compelling all Defendants to provide responses, without objection, to a) Plaintiff’s Form Interrogatories, Set One; b) Plaintiff’s Special Interrogatories, Set One; and c) Plaintiff’s Request for Production of Documents, Set One;

2. For an Order deeming Plaintiff’s Requests for Admissions, Set One, to each Defendant to be admitted; and

3. For a monetary sanctions award of $2,576.67 as against each Defendant, jointly and severally, for failing to respond to discovery in good faith.

This motion is made pursuant to Code of Civil Procedure §§ 2023.010, 2030.300, 2031.300, and 2033.280 on the grounds that Plaintiffs have refused to provide any responses to Plaintiff’s Form Interrogatories, Special Interrogatories, Request for Production of Documents, and Requests for Admissions despite both informal meet and confer efforts by Plaintiff, and after the specific intervention of this Court at an Informal Discovery Conference (“IDC”) on December 7, 2023. As to Defendant Christopher Thompson, he has not even participated in or responded to any meet and confer efforts.

None of the Defendants have responded, despite the fact that the discovery was initially served on August 15, 2023. Defendants’ utter refusal to respond to discovery in good faith, particularly after the court’s intervention, warrants the imposition of monetary sanctions against all Defendants, jointly and severally, in the amount of $2,576.67.

Anticipating Defendants’ refusal to respond, at the December 7 IDC the Court authorized Plaintiff to file one consolidated motion as to all defendants on all discovery. (Althouse Dec. ¶ 9; Ex. 10, Notice of Ruling at IDC.) Accordingly, Plaintiff requests that the Court Order Defendants to provide responses, without objection, to the Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, further Order the Requests for Admissions to be deemed admitted, and issue an award of monetary sanctions against Defendants, and each of them.”

PROCEDURAL

Moving Party: Plaintiff, Schimley Althouse LLP

Responding Party: No Opposition

Moving Papers: Notice/Motion; Dennis L. Althouse Declaration; Proof of Service

Opposition Papers: No Opposition

Reply: No Reply

Procedural
16/21 Day Lapse (§1005(b)): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Ok

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.4^th 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).)

LEGAL STANDARD – COMPEL RESPONSES, INTERROGATORIES
Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (CCP 2030.260(a).)

If a party to whom interrogatories are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP § 2030.290(b).)

“The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). 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 2030.210, 2030.220, 2030.230, and 2030.240. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2030.290(a).)

LEGAL STANDARD – REQUEST TO DEEM ADMISSIONS ADMITTED
“Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared, unless on motion of the requesting party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” (CCP § 2033.250(a).)

If a party to whom requests for admission are directed fails to serve a timely response, the 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 under Chapter 7 (commencing with Section 2023.010). (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. (CCP § 2033.280(c).)

Further, if a party to whom requests for admission are directed fails to serve a timely response, the party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). (CCP § 2033.280(a).) However, the court on motion, may relieve that party from this waiver on its determination that: (1) the party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230, and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (CCP § 2033.280(a)(1)-(2).)

TENTATIVE RULING
Filing Fees/Parties
The instant motion pertains to compelling responses and deeming admissions admitted. Although this was filed as one motion, this motion typically should be filed as 12 different motions because the discovery at issue involved 3 different Defendants and 4 different discovery tools. The discovery was for Form Interrogatories, Set One; Special Interrogatories, Set One; Request for Production of Documents and Electronically Stored Information, Set One; and Requests for Admission, Set One. The 3 Defendants the discovery pertained to were Kathleen M. Thompson, an individual; Kathleen M. Thomson, as Trustee of the Kathleen M. Thomson 1999 Trust; and Christopher J. Thomson.

Plaintiff explains that it filed this as one motion because on 12/7/2023, the Court told Plaintiff it may file one consolidated motion to compel.

A motion must be brought separately as to each discovery method at issue. The instant motion typically should have been filed as 12 separate motions and 12 filing fees paid. Instead, Plaintiff filed only one motion to compel. “[P]ayment of filing fees is both mandatory and jurisdictional.” (Hu vs. Silgan Containers Corp. (1999) 70 Cal. App. 4^th 1261, 1269.)

While the Court is aware that it informed Plaintiff on 12/7/2023 that it could file one consolidated motion to compel, Plaintiff is to address the issue of filing fees.

Substantive Analysis
Plaintiff’s memorandum explains that the instant motion should be granted because the discovery at issue was served on all three Defendants on August 15, 2023; responses were due on September 19, 2023; and since responses have not been received as of February 16, 2024, responses should be compelled, RFA’s should be deemed admitted, and sanctions should be awarded.

However, Plaintiff’s declaration explains how at the 12/7/2023 IDC, the Court directed Plaintiff to reserve discovery today [12/7/2023] via email, and tomorrow via USPS. In the 12/7/2023 Minute Order, the Court noted how reservice of the discovery does not restart the deadline.

Problematic with Plaintiff’s motion is that Plaintiff’s declaration includes proofs of service for all the discovery initially served on August 15, 2023, but Plaintiff’s declaration does not include proofs of service for the resending of the discovery that was ordered by the Court on 12/7/2023 at the IDC.

Ordinally, it appears as if responses should be compelled as to the relevant motions, objections waived as to all discovery at issue, and requests for admissions deemed admitted as to the relevant motions.

The Court will hear argument about the service issue.

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).)

CCP § 2030.290 states in relevant part:

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 interrogatories, 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 § 2030.290(c).)

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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).)

“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).)

Plaintiff’s sanctions request is less than clear. In the notice of the motion, Plaintiff requests monetary sanctions of $2,576.67 as against each Defendant, jointly and severally, for failing to respond to discovery in good faith.

In the Althouse Declaration, sanctions are requested as follows:

15. I have spent no less than 10 hours on the multiple meet and confer efforts and communications, preparing for and attending the December 7 IDC, and preparing this motion. My hourly billing rate is $415/hour, meaning I have incurred no less than $4,150 in attorney’s fees dealing with Defendants’ utter refusal to respond to discovery.

16. Plaintiff has also incurred filing fees and related charges of $76.67 for filing and service of the required IDC statement and this motion.

17. Plaintiff therefore requests monetary sanctions of $2,500 be granted, jointly and severally, as against each Defendant as a deterrent against future discovery abuses.

(Althouse Decl. ¶¶15-17.)

Plaintiff is to address sanctions at the hearing, particularly as to why it is requesting sanctions with respect to the December 7th IDC.

Further, the Court notes that the Althouse Declaration does not state how much time was spent on filing this motion. The declaration talks about how “no less than 10 hours” was spent on several different things.