Judge Audra Mori, Case 21STCV13279 2023-01-12 Tentative Ruling

Plaintiff Lourdes Silva (“Plaintiff”) filed the instant motion compel responses to request for production of documents (“RPDs”), set two, against Defendant Tacos El Fogon Grill, Inc. (“Defendant”) on June 22, 2022, setting it for hearing on December 9, 2022. Defendant filed a late opposition on December 7, 2022, and on this same date, Plaintiff’s counsel filed a declaration objecting to the late filing. Due to the Court’s unavailability, the hearing was continued to January 12, 2023. Plaintiff then filed a reply to the opposition on January 5, 2023.

As an initial matter, in the absence of any prejudice, and because Plaintiff was able to file a reply addressing the merits of the opposition, the Court will consider Defendant’s opposition. Defendant’s counsel is admonished that failure to timely file papers in the future may result in the Court disregarding them.

In its moving papers, Plaintiff states that Plaintiff propounded RPDs, set two, on Defendant on April 14, 2022. Plaintiff asserts that as of filing the motion, and despite attempts to meet and confer, Defendant had not served responses. Among other statements, Plaintiff represents, “This motion is made on the grounds that Defendant failed to serve any response whatsoever to the duly propounded discovery requests in question.” Plaintiff therefore seeks an order compelling Defendant to respond, without objections, to the outstanding discovery and to pay sanctions.

In opposition, Defendant asserts that after meeting and conferring with Plaintiff, Plaintiff demanded responses to the RPDs by June 17, 2022. Defendant asserts that it then served responses to the RPDs on June 17, 2022, “to the email address of plaintiff counsel’s law firm owner Omid Khorshidi, Esq.” (Opp. at p. 3:4-5.) Defendant provides that the day after it received Plaintiff’s instant motion, Defendant’s support staff member contacted Plaintiff’s counsel to inform it that responses had been served, but Plaintiff’s counsel responded that it did not consider responses to have been served because they were not served all four of the required email addresses on Plaintiff’s list serve. Defendant argues that the motion is moot because responses were served prior to the filing of the motion to an email address to which Plaintiff’s counsel provided they wanted papers sent.

Plaintiff, in reply, contends that Defendant did not serve responses until after this motion was served. Plaintiff asserts, and Defendant does not deny, that Plaintiff’s counsel has an email auto-response to anyone that emails Plaintiff’s counsel that provides notice that legal documents should be served on four email address. Plaintiff contends that Defendant’s responses served on June 17, 2022, were not sent to three of the four email addresses provided, so the responses were not properly served on this date. Rather, Plaintiff contends the responses were essentially deemed served after the instant motion was filed and Defendant sent the responses to all required emails.

It is clear that responses to the RPDs have now been served. Consequently, the motion to compel is moot in light of the responses served on Plaintiff prior to the hearing. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776.) To the extent that Plaintiff contends any responses are deficient, Plaintiff must schedule and Informal Discovery Conference and move to compel further responses.

The sole remaining issue is whether to impose sanctions. Sanctions are in order unless the one subject to sanctions acted with substantial justification or other circumstances make the imposition of sanctions unjust. (CCP § 2031.300(c).) In this case, the parties dispute whether responses were served on June 17, 2022, or on June 22, 2022. Plaintiff contends the responses were not served until 4:51 p.m. on June 22, 2022, which was less than 30 minutes after Plaintiff filed this motion, because Defendant initially sent the responses to only one of the four email addresses provided on Plaintiff’s counsel’s email auto-reply response to emails.

This matter might have been resolved with a telephone call, professional courtesy, and cooperation between counsel. The evidence shows that Defendant served responses on one of the email addresses for Plaintiff’s counsel listed on the pleadings and on the instant motion. Nonetheless, CCP § 1010.6(b) states:

(2) A person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

(3) Before first serving a represented person electronically, the person effecting service shall confirm the appropriate electronic service address for the counsel being served.

It is unclear whether Defendant adequately confirmed the appropriate electronic service address for Plaintiff’s counsel before serving the responses through email, and the response to Defendant’s email indicated that Plaintiff’s counsel demands to have four different email addresses served. However, as Defendant attempted to serve responses prior to the motion being filed, the Court finds the imposition of severe sanctions would be unjust as Plaintiff received the relevant responses. Therefore, Plaintiff is awarded the $60 motion filing fee as costs. The Court declines the request to impose sanctions on defense counsel under CCP § 2023.050(a)(1).

Sanctions are imposed against Defendant’s attorney of record only. Defendant’s counsel is ordered to pay sanctions to Plaintiff, by and through counsel of record, in the total amount of $60.00, within twenty (20) days.

Hon. Audra Mori

Judge of the Superior Court