Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01289, Date: 2024-05-23 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01289, Date: 2024-05-23 Tentative Ruling

Case Number: 23GDCV01289 Hearing Date: May 23, 2024 Dept: E

Hearing Date: 05/23/2024 – 8:30am
Case No. 23GDCV01289
Trial Date: UNSET
Case Name: GABREILA RAMIREZ CUENCA, an individual; and DAVID CHRISTOPHER GEMUS, an individual; v. FCA US LLC, a Delaware Limited Liability Company, and DOES 1-10 inclusive

3 TENTATIVE RULINGS – COMPEL RESPONSES

BACKGROUND
Plaintiffs, Gabriela Ramirez Cuenca and David Christopher Gemus, filed a Complaint on 06/16/2023 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¿

“Plaintiffs, GABRIELA RAMIREZ CUENCA and DAVID CHRISTOPHER GEMUS (hereinafter “Plaintiffs”), will, and hereby do, move for an order to compel responses, without objections, to Plaintiffs’ Form and Special Interrogatories, Set One (“Interrogatories”). Plaintiffs’ Interrogatories were initially served and propounded on Defendant by Plaintiffs on August 16, 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 Plaintiffs’ Interrogatories, which seek information directly relevant to their claims under the Song-Beverly Consumer Warranty Act. Thus, Plaintiffs seek 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

“Plaintiffs, GABRIELA RAMIREZ CUENCA and DAVID CHRISTOPHER GEMUS (hereinafter “Plaintiffs”), will, and hereby do, move for an order to compel responses, without objections, to Plaintiffs’ Requests for Production of Documents, Set One (“RFPs”). Plaintiffs’ Requests for Production of Documents, Set One, was initially served and propounded on Defendant by Plaintiffs on August 16, 2023.

This Motion is made pursuant to California Code of Civil Procedure, sections 2033.280, 2023.010, and 2023.030 on the basis that Plaintiffs properly served upon Defendant, Requests for Production of Documents, Set One, and Defendant has failed to serve timely responses. Plaintiffs’ RFPs seek information directly relevant and material to their claims under the Song-Beverly Consumer Warranty Act. Thus, Plaintiffs seek an order compelling Defendant to produce responses, without objections, within 10 calendar days of the Court’s order.

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

“Plaintiffs, GABRIELA RAMIREZ CUENCA AND DAVID CHRISTOPHER GEMUS (hereinafter “Plaintiffs”), will, and hereby do, move for an order deeming the truth of matters admitted in Plaintiffs’ Requests for Admissions, Set One. Plaintiffs’ Requests for Admissions were initially served and propounded on Defendant by Plaintiffs on August 16, 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 Plaintiffs’ Requests for Admissions, which seek information directly relevant and material to their claims under the Song-Beverly Consumer Warranty Act. Thus, Plaintiffs seek 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: Plaintiffs, Gabriela Ramirez Cuenca and David Christopher Gemus

Responding Party: Defendant, FCA US LLC

Moving Papers: Notice/Motion; Sogoyan Declaration; Proposed Order

Opposition Papers: Untimely Opposition

Reply: Reply due 5/16/2024; no Reply as of 5/20/2024

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: Plaintiffs, Gabriela Ramirez Cuenca and David Christopher Gemus

Responding Party: Defendant, FCA US LLC

Moving Papers: Notice/Motion; Sogoyan Declaration; Proposed Order

Opposition Papers: Untimely Opposition

Reply: Reply due 5/16/2024; no Reply as of 5/20/2024

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: Plaintiffs, Gabriela Ramirez Cuenca and David Christopher Gemus

Responding Party: Defendant, FCA US LLC

Moving Papers: Notice/Motion; Sogoyan Declaration; Proposed Order

Opposition Papers: Untimely Opposition

Reply: Reply due 5/16/2024; no Reply as of 5/20/2024

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.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 –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).)

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).)

TENTATIVE RULING
Plaintiffs 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. Plaintiffs’ 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. 4^th 1261, 1269.)

If Plaintiffs want 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, Plaintiffs are welcome to request the Court to advance and continue the instant hearings to a date that all four motions will be scheduled for; however, Plaintiffs are warned that all motions must provide sufficient notice to Defendant. Further, the Plaintiffs 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.

As to the merits of these motions, on August 16, 2023, Plaintiffs 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 29, 2023. (See Sogoyan Declarations ¶ 15 FROGs/SROGs, ¶ 13 RPDs, ¶ 13 RFAs. Therefore, Defendant did not provide timely responses.

On 5/15/2024, Defendant submitted Oppositions to the instant motions. These Oppositions are untimely; however, the Court will utilize its discretion and consider the untimely Oppositions.

The Oppositions indicate that on May 15, 2024, Defendant provided verified responses to the instant discovery. (See Dao Decl. ¶ 4.)

The Court notes that although Defendant’s counsel indicates that the untimely responses were verified, the Court does not see verifications with the Oppositions.

All three Oppositions are identical to each other.

As to the Oppositions to the SROGs/FROGS and RPDs, Defendant argues that it didn’t waive objections because it served responses that were substantially compliant and the failure to timely respond was due to mistake, inadvertence, or excusable neglect.

Those arguments are unavailing. Whether Defendant served substantially compliant responses, or whether the untimely responses were due to mistake, inadvertence, or excusable neglect, is irrelevant for compelling initial responses to interrogatories and RPDs at this hearing. That standard is only relevant if Defendant files a motion to be relieved from waiver of objections. Defendant has not filed a motion to be relieved from waiver of objections, and the Oppositions are not considered motions to be relieved from waiver of objections.

As to Motions 1 and 2, because responses were untimely served, but served before the hearing, Plaintiffs’ Motions 1 and 2 are DENIED as moot.

However, Defendant waived objections because it didn’t timely provide responses. A motion to be relieved from waiver of objections has not been filed.

Therefore, Defendant’s arguments that the untimely responses were served in substantial compliance and were due to mistake, inadvertence, or excusable neglect are not before this Court

The Court will hear argument as to Motion 3.

Under § 2033.280(c) it appears as if the RFAs should not be deemed admitted if they were served in substantial compliance with § 2033.220. “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).)

Here, Defendant’s untimely responses appear to be substantially compliant under § 2033.220, and they were provided before the hearing. Therefore, under § 2033.280(c) it appears as if Motion 3 should be denied as moot.

However, on the other hand, it could be argued that, under St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 782, the untimely responses that were served before the hearing are not considered to be substantially compliant for not being verified.

Further, what is unclear when reading §§ 2033.280(a) & 2033.280(c) is the following: § 2033.280(a) makes it clear that Defendant needs to file a motion to be relieved from waiver of objections if Defendant did not want to waive its objections to RFAs due to untimely responses.

Here, Defendant has not filed a motion for relief from waiver of objections. “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).)

However, § 2033.280(c) makes clear that the court is not to deem the RFAs admitted if responses are served in substantial compliance before the hearing.

The uncertainty is that if the Court rules the untimely responses are substantially compliant, despite there being no verifications, there is a question as to whether objections been waived since no motion for relief from wavier of objections has been filed.

“The RFA device is not intended to provide a windfall to litigants. Nor is the RFA procedure a ‘gotcha’ device in which an overly aggressive propounding party—who rejects facially reasonable requests for a short discovery extension and thereafter files the wrong discovery motion after service of a slightly tardy proposed RFA response that is substantially code-compliant—may obtain a substantive victory in the case by having material issues deemed admitted. RFAs are not to be deemed admitted unless the party to whom RFAs are propounded fails to respond prehearing to RFAs in a manner that is substantially code-compliant (§ 2033.280, subd. (c)), or he or she is recalcitrant and violates a court order compelling further responses that are deficient (§ 2033.290, subd. (e)). Furthermore, the order deeming admitted the 41 RFAs, to the extent that it may substantially impact St. Mary's ability to prove her case, undermines public policy that promotes controversies being resolved through trials on the merits. (See New Albertson's, Inc., supra, 168 Cal.App.4th at pp. 1420–1421, 86 Cal.Rptr.3d 457 [court's discretion under § 2033.300 to grant party leave to withdraw or amend RFA responses based upon “mistake, inadvertence, or excusable neglect” must be exercised consistently with “the spirit of the law and in a manner that serves the interests of justice”; policy favoring trial on the merits dictates that any doubts be resolved in favor of party seeking relief].)”

(St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783-784.)

The Court will hear argument.

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 discuss the sanctions issue with the parties.