Judge: Ashfaq G. Chowdhury, Case: 23GDCV01231, Date: 2024-05-16 Tentative Ruling
Case Number: 23GDCV01231 Hearing Date: May 16, 2024 Dept: E
Hearing Date: 05/16/2024 – 8:30am
Case No. 23GDCV01231
Trial Date: UNSET
Case Name: MARIELY GARCIA-ROMERO, an individual; v. FCA US LLC, a Delaware
Limited Liability Company, and DOES 1-10 inclusive
3
TENTATIVE RULINGS – COMPEL RESPONSES
BACKGROUND
Plaintiff, Mariely Garcia-Romero, filed a Complaint on 06/15/2023
alleging three causes of action for: (1) Violation of Song-Beverly Act – Breach
of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied
Warranty, and (3) Violation of Song-Beverly Act Section 1793.2.
MOTION 1 - RELIEF REQUESTED¿
“ Plaintiff, MARIELY
GARCIA-ROMERO (hereinafter “Plaintiff”), will, and hereby do, move for an order
to compel responses, without objections, to Plaintiff’s Form and Special
Interrogatories, Set One (“Interrogatories”). Plaintiff’s Interrogatories were
initially served and propounded on Defendant by Plaintiff on August 14, 2023.
This Motion is made pursuant to
California Code of Civil Procedure, sections 2033.280, subdivision (a), and
2033.280, subdivision (b), on the grounds that Defendant FCA US LLC
(“Defendant”) has failed to provide any responses to Plaintiff’s Interrogatories,
which seek information directly relevant to their claims under the Song-Beverly
Consumer Warranty Act. Thus, Plaintiff seeks an order compelling Defendant to
produce responses, without objections, within 10 calendar days of the Court’s
order.
The Motion is based upon this
Notice, the following Memorandum of Points and Authorities, the Declaration of
Gregory Sogoyan, the pleadings, and papers on file herein, and upon any other
matters that may be presented to the Court at the hearing.
No separate statement is being
submitted in support of the instant Motion, as it is not required pursuant to
rule 3.1345(b), of the California Rules of Court.”
(Pl. Mot. p. 2.)
MOTION 2 – RELIEF REQUESTED
“Plaintiff, MARIELY GARCIA-ROMERO
(hereinafter “Plaintiff”), will, and hereby do, move for an order to compel
responses, without objections, to Plaintiff’s Requests for Production of
Documents, Set One (“RFPs”). Plaintiff’s Requests for Production of Documents,
Set One, was initially served and propounded on Defendant by Plaintiff on
August 14, 2023.
This Motion is made pursuant to
California Code of Civil Procedure, sections 2033.280, 2023.010, and 2023.030
on the basis that Plaintiff properly served upon Defendant, Requests for
Production of Documents, Set One, and Defendant has failed to serve timely
responses. Plaintiff’s RFPs seek information directly relevant and material to
their claims under the Song-Beverly Consumer Warranty Act. Thus, Plaintiff
seeks an order compelling Defendant to produce responses, without objections,
within 10 calendar days of the Court’s order.
The Motion is based upon this
Notice, the following Memorandum of Points and Authorities, the Declaration of
Gregory Sogoyan, the pleadings, and papers on file herein, and upon any other
matters that may be presented to the Court at the hearing.
No separate statement is being
submitted in support of the instant Motion, as it is not required pursuant to
rule 3.1345(b), of the California Rules of Court.”
(Pl. Mot. p. 2.)
MOTION 3 – RELIEF REQUESTED
“Plaintiff, MARIELY GARCIA-ROMERO (hereinafter “Plaintiff”), will, and hereby
do, move for an order deeming the truth of matters admitted in Plaintiff’s
Requests for Admissions, Set One. Plaintiff’s Requests for Admissions were
initially served and propounded on Defendant by Plaintiff on August 14, 2023.
This Motion is made pursuant to
California Code of Civil Procedure, sections 2033.280, subdivision (a), and
2033.280, subdivision (b), on the grounds that Defendant FCA US LLC
(“Defendant”) has failed to provide verified and timely responses to Plaintiff’s
Requests for Admissions, which seek information directly relevant and material
to their claims under the SongBeverly Consumer Warranty Act. Thus, Plaintiff
seeks an order deeming the truth of matters admitted, within 10 calendar days
of the Court’s order.
The Motion is based upon this
Notice, the following Memorandum of Points and Authorities, the Declaration of
Gregory Sogoyan, the pleadings and papers on file herein, and upon any other
matters that may be presented to the Court at the hearing.
No separate statement is being
submitted in support of the instant Motion, as it is not required pursuant to
rule 3.1345(b), of the California Rules of Court.”
(Pl. Mot. p. 2.)
Procedural –
Motion 1
Moving Party: Plaintiff, Mariely Garcia-Romero
Responding Party: Defendant, FCA US LLC
Moving Papers: Notice/Motion; Sogoyan Declaration; Proposed
Order
Opposition Papers: Untimely Opposition
Reply: No Reply
16/21
Day Lapse (CCP § 12c and § 1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a): Ok
Procedural –
Motion 2
Moving Party: Plaintiff, Mariely Garcia-Romero
Responding Party: Defendant, FCA US LLC
Moving Papers: Notice/Motion; Sogoyan Declaration; Proposed
Order
Opposition Papers: Untimely Opposition
Reply: No Reply
16/21
Day Lapse (CCP § 12c and § 1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a): Ok
Procedural – Motion 3
Moving Party: Plaintiff, Mariely Garcia-Romero
Responding Party: Defendant, FCA US LLC
Moving Papers: Notice/Motion; Sogoyan Declaration; Proposed
Order
Opposition Papers: Untimely Opposition
Reply: No Reply
16/21
Day Lapse (CCP § 12c and § 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.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).)
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).)
Further, “If
a party to whom requests for admission are directed fails to serve a timely
response, the following rules apply: (a) 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). 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 2033.210, 2033.220, and
2033.230. (2) The party’s failure to serve a timely response was the
result of mistake, inadvertence, or excusable neglect.” (CCP § 2033.280(a).)
“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).)
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).)
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).)
TENTATIVE RULING
Plaintiff lumped what
should have been four motions into three motions.
A motion must be brought separately as to each
discovery method at issue. The instant three motions should have been filed as four
separate motions and four filing fees paid. Plaintiff’s Motion 1 lumped
compelling responses to Form and Special Interrogatories, Set One, into one
motion when it should have been filed as two separate motions, i.e., one motion
for FROGs and one motion for SROGs. “[P]ayment of filing fees is both mandatory
and jurisdictional.” (Hu vs. Silgan Containers Corp. (1999) 70 Cal. App.
4th 1261, 1269.)
If
Plaintiff wants these four motions to be heard, they can pay the additional
filing fee to the Court before the hearing and show proof of payment of the
additional filing fee before the hearing.
Alternatively,
Plaintiff is welcome to request the Court to advance and continue the instant
hearing to a date that all four motions will be scheduled for; however,
Plaintiff is warned that all motions must provide sufficient notice to
Defendant. Further, Plaintiff would need to clarify which discovery method
Motion 1 will pertain to on the future hearing date, i.e., will Motion 1
pertain to special interrogatories or form interrogatories. Presumably, the
additional motion filed will clearly indicate what individual discovery method
it pertains to, i.e. FROGs or SROGs.
On
August 14, 2023, Plaintiff served Form Interrogatories, Special
Interrogatories, Requests for Production of Documents, and Requests for
Admissions, Set One, on Defendant. (Sogoyan Decl. ¶ 8.)
As
of the date of the Sogoyan Declaration [April 8, 2024], Defendant had failed to
provide any responses to the discovery served on August 14, 2023. (See Sogoyan
Declarations; ¶ 15 (SROGs/FROGs); ¶ 13 (RPDs); ¶ 13 (RFAs).)
On
5/13/2024 Defendant submitted three untimely Oppositions stating that responses
to all the instant discovery was served on May 11, 2024. Defendant’s counsel
states that the responses were verified, but the Court does not see
verifications with the submitted Oppositions.
If
Plaintiff shows proof of the additional filing fee paid to the Court, Motion 1
is DENIED as moot since Defendant provided responses. The issue of sanctions
would not be moot since responses were not provided until after the filing of
the motion; however, sanctions were not requested.
Since
Defendant provided responses after the filing of this motion, Motion 2 is
DENIED as moot.
As
to motion 3, this motion pertains to RFAs. The Court will hear argument. Defendant’s
counsel stated that verifications were provided, but the Court does not see proof
of verifications in the Opposition.
Sanctions - Inspection Demands
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).)
Sanctions –
Requests for Admission
“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).)
Sanctions – Interrogatories
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).)
Sanctions Ruling
“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 will
hear from the parties on sanctions.