Judge: Ashfaq G. Chowdhury, Case: 23GDCV01280, Date: 2024-05-16 Tentative Ruling
Case Number: 23GDCV01280 Hearing Date: May 16, 2024 Dept: E
Hearing Date: 5/16/2024 – 8:30am
Case No. 23GDCV01280
Trial Date: UNSET
Case Name: BENIGNO T. EVARDONE, JR., an individual; v. FCA US LLC, a Delaware
Limited Liability Company, and DOES 1-10 inclusive
TENTATIVE
RULING – COMPEL RESPONSES
BACKGROUND
Plaintiff, Benigno T. Evardone, Jr., filed a Complaint on 06/20/2023
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.
RELIEF REQUESTED¿
“Plaintiff, BENIGNO T. EVARDONE, JR.
(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 17, 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.)
Procedural
Moving Party: Plaintiff, Benigno T. Evardone Jr.
Responding Party: Defendant, FCA US LLC
Moving Papers: Notice/Motion; Proposed Order; Sogoyan
Declaration
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
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 two motions into one motion.
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. Plaintiff’s motion 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 two 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 both 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 this motion
will pertain to on the future hearing date, i.e., will this motion 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 17, 2023, Plaintiff served Form Interrogatories, and Special
Interrogatories, 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 17, 2023. (See Sogoyan
Declarations; ¶ 12 & 15.)
On
5/10/2024, Defendant provided an untimely opposition stating that responses had
been served on May 10, 2024.
If
Plaintiff shows proof of the additional filing fee paid to the Court so that
both motions can be heard, both motions are DENIED as moot because Defendant
provided responses. The issue of sanctions would not be moot; however, because Plaintiff
did not request sanctions.
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 discuss sanctions with the parties.