Judge: Cherol J. Nellon, Case: 20STCV24234, Date: 2023-05-19 Tentative Ruling

Case Number: 20STCV24234    Hearing Date: May 19, 2023    Dept: 28

Plaintiffs David Cherng and Kim Thien Vo’s Motion to Compel Defendant Estate of Ronald Kimble, Deceased’s Responses to Form Interrogatories; Plaintiffs David Cherng and Kim Thien Vo’s Motion to Compel Defendant Estate of Ronald Kimble, Deceased’s Responses to Special Interrogatories

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On June 26, 2020, Plaintiffs David Cherng (“Cherng”) and Kim Thien Vo (“Vo”) filed this action against Defendant Estate of Ronald Kimble, Deceased (“Defendant”) for motor vehicle negligence and general negligence.

On February 8, 2022, Defendant filed an answer.

On February 15, 2023, Plaintiff filed Motions to Compel Discovery Responses to be heard on May 19, 2023. On May 9, 2023, Defendant filed oppositions.

Trial is currently scheduled for August 1, 2023.

PARTY’S REQUESTS

Plaintiffs request the Court compel Defendant to serve full and complete verified responses to Form Interrogatories, Set One, and Special Interrogatories, Set One. Plaintiffs also request $2,370.00 across both motions.

Defendant requests the Court deny the motion.

LEGAL STANDARD

Under California Code of Civil Procedure § 2031.300, “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (b) The party making the demand may move for an order compelling response to the demand.” According to CCP § 2030.260, for a response to interrogatories to be timely, it must be served within 30 days of service. CCP § 2031.260 provides the same 30-day deadline for request for production responses.

CCP § 2023.030(a) provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” According to CCP §2023.010(d), misuse of the discovery process includes “failing to respond or to submit to an authorized method of discovery.”

CCP § 2030.290(c) states that “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 § 2033.220 provides the following: “(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) Each answer shall: (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”

Under CCP § 2033.280, a party who fails to serve timely responses to requests for admissions waives any objections to the requests, including those based on privilege. Upon

failure to serve a timely response, a requesting party can move for a court order that the truth of the matter specified in the requests be deemed admitted. CCP § 2033.280(c) states “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. 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.”

DISCUSSION

Discovery

Plaintiffs served discovery on Defendant on March 2, 2022; responses, with extensions, were due on May 3, 2022. Defendant served unverified responses on May 3, 2022. Defendant has not served verified responses as of the date of filing this motion. Responses without verification are tantamount to no response at all.

Defendant’s counsel submitted an opposition attesting that they have not been able to contact Defendant’s representative and thus cannot receive verifications. They stated they will provide verifications once contact is reestablished.

The Court grants the motion. Counsel’s inability to contact their client does not overcome Plaintiffs’ right to timely discovery. Defendant’s failure to provide timely verifications is still considered to be misuse of the discovery process, and subject to sanctions.

Sanctions

Plaintiffs are entitled to reasonable sanctions due to Defendant’s misuse of the discovery process in failing to provide verifications. The Court will only impose sanctions on Defendant, and not counsel, as the delay is due to Defendant’s unwillingness to communicate with counsel.

Plaintiffs seek sanctions of $2,370.00 across both motions, based on 5 hours of attorney’s time at a rate of $450.00 per hour and 2 $60.00 filling fees. 3 hours were spent drafting the motions, 1 hour was spent drafting a reply and 1 hour attending the hearing. The Court accounts for the fact that the motions are substantially similar and will be heard concurrently. The Court awards sanctions of $1,120.00 across all motions, based on 4 hours of attorney’s work at a reasonable rate of $250.00 per hour.

CONCLUSION

Plaintiffs David Cherng and Kim Thien Vo’s Motion to Compel Defendant Estate of Ronald Kimble, Deceased’s Responses to Form Interrogatories is GRANTED. Defendant is ordered to provide verified, code-compliant responses within 30 days of the hearing on the motion.

Plaintiffs David Cherng and Kim Thien Vo’s Motion to Compel Defendant Estate of Ronald Kimble, Deceased’s Responses to Special Interrogatories is GRANTED. Defendant is ordered to provide verified, code-compliant responses within 30 days of the hearing on the motion.

Plaintiffs David Cherng and Kim Thien Vo’s Request for Sanctions is GRANTED. Defendant is ordered to pay Plaintiffs $1,120.00 in sanctions within 30 days of the hearing on the motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.