Judge Ashfaq G. Chowdhury, Case Number: 24GDCV00304, Date: 2024-07-19 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24GDCV00304, Date: 2024-07-19 Tentative Ruling

Case Number: 24GDCV00304 Hearing Date: July 19, 2024 Dept: E

Hearing Date: 07/19/2024 – 8:30am
Case No. 24GDCV00304
Trial Date: UNSET
Case Name: DYLAN POLNIAK, an individual; and AMANDA POLNIAK, an individual; v. DANIEL KHOSHNUDYAN, an individual; SUSANNA REVAZYAN, an individual; and DOES 1-50 inclusive

TENTATIVE RULINGS – COMPEL RESPONSES

BACKGROUND
On 2/14/2024, Plaintiffs, Dylan Polniak and Amanda Polniak, filed a Complaint alleging two causes of action: (1) Motor Vehicle/General Negligence/Negligence Per Se, and (2) Loss of Consortium.

On 4/17/2024, Defendant Daniel Khoshnudyan filed an Answer.

MOTION 1 - RELIEF REQUESTED¿
“Plaintiff Dylan Polniak (“Plaintiff”), will and hereby does move the Court an Order compelling Defendant Daniel Khoshnudyan (“Khoshnudyan” or “Defendant”) to serve responses without objections to Plaintiff’s First Set of Document Demands and for monetary sanctions against Defendant Daniel Khoshnudyan and his counsel of record, Gates, Gonter, Guy, Proudfoot & Muench, LLP in the amount of $750.00 for failure to timely do so, needlessly requiring Plaintiff to file this Motion to Compel Responses (the “Motion”). Cal. Civ. Proc. Code §§ 2030.290, 2031.300, and 2033.290.”

(Mot. p. 2.)

Procedural – Motion 1

Moving Party: Plaintiff, Dylan Polniak

Responding Party: No Opposition

Moving Papers: Notice/Motion; David J. Koppelman Declaration

Opposition Papers: No Opposition

Reply: Notice of Non-Opposition

16/21 Day Lapse (CCP § 12c and § 1005(b): Uncertain
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a, 1013b): No

MOTION 2 – RELIEF REQUESTED
“Plaintiff Dylan Polniak (“Plaintiff”), will and hereby does move the Court an Order compelling Defendant Daniel Khoshnudyan (“Khoshnudyan” or “Defendant”) to serve responses without objections to Plaintiff’s First Set of Special Interrogatories, First Set of Form Interrogatories, and for monetary sanctions against Defendant Daniel Khoshnudyan and his counsel of record, Gates, Gonter, Guy, Proudfoot & Muench, LLP in the amount of $750.00 for failure to timely do so, needlessly requiring Plaintiff to file this Motion to Compel Responses (the “Motion”). Cal. Civ. Proc. Code §§ 2030.290, 2031.300, and 2033.290.”

(Mot. p. 2.)

Procedural – Motion 2

Moving Party: Plaintiff, Dylan Polniak

Responding Party: No Opposition

Moving Papers: Notice/Motion; David J. Koppelman Declaration

Opposition Papers: No Opposition

Reply: Notice of Non-Opposition

16/21 Day Lapse (CCP § 12c and § 1005(b): Uncertain
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a, 1013b): No

MOTION 3 – RELIEF REQUESTED
“Plaintiff Dylan Polniak (“Plaintiff”), will and hereby does move the Court an order to deem the truth of the matters specified in Requests for Admissions, Set One, admitted by Defendant Daniel Khoshnudyan (“Defendant” or “Khoshnudyan”) and conclusively established, served upon Defendant Daniel Khoshnudyan on March 11, 2024, needlessly requiring Plaintiff to file the instant Motion (the “Motion”). Cal. Civ. Proc. Code §§ 2030.290, 2031.300, and 2033.290. Plaintiff also seeks monetary sanctions against Defendant Daniel Khoshnudyan and his counsel of record, Gates, Gonter, Guy, Proudfoot & Muench, LLP in the amount of $750.00 for failure to timely respond to discovery, needlessly requiring Plaintiff to file this Motion to Compel Responses (the “Motion”). Cal. Civ. Proc. Code §§ 2030.290, 2031.300, and 2033.290.”

(Mot. p. 2.)

Procedural – Motion 3

Moving Party: Plaintiff, Dylan Polniak

Responding Party: No Opposition

Moving Papers: Notice/Motion; David J. Koppelman Declaration

Opposition Papers: No Opposition

Reply: Notice of Non-Opposition

16/21 Day Lapse (CCP § 12c and § 1005(b)): Uncertain
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a, 1013b): No

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).)

Further, if a party to whom interrogatories are directed fails to serve a timely response, “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.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, 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).)

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).)

TENTATIVE RULING ALL MOTIONS
Service

All moving papers for all motions were served via electronic service. However, none of the proofs of service for the moving papers indicates the electronic address that was served. “Proof of electronic service shall include the name and electronic address of the person served.” (CCP § 1013b(b)(3).)

Since moving papers were served electronically, and Movant does not include the electronic address of the person served, the Court cannot determine if Defendant’s counsel ever received these motions, especially in light of the fact that no Opposition was submitted. eCourt lists Defendant, Daniel Khoshnudyan’s, counsel’s email address as jdondanville@g3pmlaw.com; however, the proofs of service don’t indicate where Defendant’s counsel was served. Further, the Court cannot evaluate if the 16-court-day notice requirement of § 1005(b) was met, because it is unclear if these moving papers even got to Defendant to begin with. The proofs of service indicate service on May 23, 2024, which would typically be timely, but this determination cannot be made in light of it being unclear if Defendant even received these moving papers.

The Court is inclined to DENY these motions without prejudice, or to continue them to a further date wherein Movant can show proper service.

Four Motions, Not Three

Plaintiff lumps 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 2 lumped compelling responses to Form and Special Interrogatories 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 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 hearings 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 2 will pertain to on the future hearing date, i.e., will Motion 2 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.

If This Motion is Heard on the Merits

As to the merits of these motions, On March 11, 2024, Plaintiff served his first set of Document Demands, SROGs, FROGs, and Requests for Admission. (Koppelman Decl. ¶ 3.) On April 26, 2024, Plaintiff’s counsel spoke via phone with defense counsel, Joyce R. Dondanville, and sent her a meet and confer letter advising counsel that Defendant failed to issue timely responses to Plaintiff’s discovery requests, and that Plaintiff requested code compliant responses without objections by May 10, 2024. (Koppelman Decl. ¶ 13.) Plaintiff’s counsel granted another extension request to respond without objections by May 17, 2024. (See Koppelman Decl. ¶¶ 14-15.) As of the date of this filing [May 23, 2024], Plaintiff’s counsel has not received any responses to the discovery request. Therefore, Defendant did not provide responses within 30 days of service of the discovery, nor did Defendant provide responses by the extended deadline dates that Plaintiff granted to Defendant.

Plaintiff’s Motions 1 and 2 are GRANTED and Defendant is ordered to provide code-compliant responses without objection.

Plaintiff’s Motion 3 is GRANTED and the truth of the matters specified in Requests for Admissions, Set One, are deemed admitted.

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 - 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 – 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).)

Plaintiff’s counsel requests sanctions against Defendant, Daniel Khoshnudyan, and his counsel of record, Gates, Gonter, Guy, Proudfoot & Muench, LLP, in the amount of $750.00 for each of the three motions filed. Plaintiff’s counsel requests a total of $2,250 for all three motions combined. This is based on an hourly rate of $450. It is also based on spending two hours preparing each of the three motions, resulting a total of six hours for all three motions combined. Plaintiff’s counsel also requests $61.65 in filing fees for each motion. (See Koppelman Decl. ¶ 19.)

Plaintiff’s counsel also requests an additional two hours preparing the reply brief, and one hour preparing for and attending the hearing on this matter. (Koppelman Decl. ¶ 19.)

The Court will hear argument as to sanctions. No Opposition was submitted, so the reply was simply a combined notice of non-opposition for all three motions.