Judge: Christian R. Gullon, Case: 22STCV01661, Date: 2023-08-10 Tentative Ruling

Case Number: 22STCV01661    Hearing Date: August 10, 2023    Dept: O

Tentative Ruling

(1)   MOTION TO COMPEL RESPONSES (WITHOUT OBJECTIONS) TO PLAINTIFF’S FORM INTERROGATORIES (SET TWO) (“FROGs”); REQUEST FOR THE IMPOSITION OF MONETARY SANCTIONS IN THE AMOUNT OF $1,422.50 is GRANTED.

(2)   MOTION TO HAVE PLAINTIFF’S REQUESTS FOR ADMISSION (“RFAs”) (SET TWO) TO DEFENDANT DEEMED ADMITTED; REQUEST FOR THE IMPOSITION OF MONETARY SANCTIONS AGAINST DEFENDANT AND ITS COUNSEL OF RECORD IN THE AMOUNT OF $1,422.50 is GRANTED.

Monetary sanctions are imposed upon Defendant and Its Counsel of Record in the Total, Reduced Amount of $1,120.00.

Background

This is a premises liability case. Plaintiff AIDA ORIBIO ITURBE alleges the following against Defendants STATE OF CALIFORNIA (the “State”); COUNTY OF LOS ANGELES; CITY OF POMONA;[1] EDWARD D. WAITE, individually and as trustee for EDWARD D. WAITE AND DANA R. WAITE TRUST; DANA R. WAITE, individually and as trustee for EDWARD D. WAITE AND DANA R. WAITE TRUST (collectively, “Waite Defendants”):[2] On March 4, 2021, Plaintiff was walking on a sidewalk and stepped on several seeds and seed pods that had fallen to the ground, causing her to slip and ultimately resulting in a fracture.

On May 16, 2022, the Waite Defendants file a general denial.

On May 18, 2022, the City of Pomona filed its answer.

On June 13, 2022, the State filed its answer, but the State was later dismissed (on 10/24/22).

On July 11, 2022, the Waite Defendants filed a cross-complaint against the City of Pomona for indemnification, apportionment of fault, and declaratory relief, which they later dismissed the cross-complaint on 7/17/23.

On March 6, 2023, filed a motion for summary judgment of Plaintiff’s complaint.

On March 30, 2023, the City of Pomona filed a motion for summary judgment of Plaintiff’s complaint.

On May 11, 2023, the City of Pomona filed a MOTION TO SPECIALLY SET MOTION FOR SUMMARY JUDGMENT HEARING, OR IN THE ALTERNATIVE, TO CONTINUE TRIAL TO ALLOW FOR SAID MOTION TO BE TIMELY HEARD BY DEFENDANT CITY OF POMONA.

On May 19, 2023, the Waite Defendants filed a POINTS AND AUTHORITIES OPPOSING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CITY OF POMONA’S MOTION.

On June 28, 2023, Plaintiff filed the two instant discovery motions.

On calendar, are also the following: a scheduled Status conference set for 8/10/23; motion to compel deposition reserved for 2/09/24; hearing on a motion to compel deposition of AdminSure reserved for 4/22/24; hearing on the City of Pomona’s MSJ set for 6/20/24; and hearing on Waite Defendants’ MSJ set for 6/20/24.

Legal Standard

Interrogatories 

Code of Civil Procedure section 2030.290 provides, in pertinent part,  

If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: 

(a) 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).  

. . .  

(b) The party propounding the interrogatories may move for an order compelling response to the interrogatories. 

(c) 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. 

(Code Civ. Proc., § 2030.290, subd. (a), (b), (c).)  Pursuant to Code of Civil Procedure section 2030.260, a responding party must serve responses to a propounding party’s interrogatories within thirty (30) days if service.  (Code Civ. Proc., § 2030.260, subd. (a).) 

To prevail on a motion to compel responses to a set of discovery, all a moving party must show is that the subject discovery requests were properly served on the opposing party,[3] that the time to respond has expired, and that no response of any kind has been served.  (Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.)  Indeed, “[o]nce¿[a party] ‘fail[s] to serve a timely response,’ the trial court had authority to grant [propounding party's] motion to compel responses.”  (Sinaiko¿Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th¿390, 405.) Lastly, failing to respond to discovery within the 30- day time limit waives objections to the discovery, including claims of privilege and work product protection. (Code Civ. Proc. § 2030.290, subd. (a), 2031.300, subd. (a); see Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

RFAs are different from other civil discovery tools such as depositions, interrogatories, and requests for documents because while most of the other discovery procedure primarily assist counsel prepare for trial, RFAs are aimed at “setting at rest a triable issue so that it will not have to be tried.” (St. Mary v. Superior Ct. (2014) 223 Cal.App.4th 762, 774, 775, quoting Cembrook v. Superior Ct. (1961) 56 Cal.2d 423, 429.)

C.C.P. section 2033.280 then provides that 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.

(b) 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).

(c) 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

On April 30, 2023, Plaintiff electronically served the City of Pomona (City) with the instant discovery, to which responses were due on June 1, 2023. On June 1, 2023, the City requested an extension, which Plaintiff’s counsel granted to June 15, 2023. However, on June 15, no responses were received. Accordingly, on June 22, 2023, Plaintiff’s counsel requested that the City promptly serve verified responses to the subject discovery requests without objections. The City was further advised that the instant Motion would be filed June 27, 2023 if such responses were not received beforehand or if the City failed to confirm that the same would be provided by Friday, June 30, 2023. Despite communications regarding the same, the City failed to serve verified responses. (Motion p. 3.)

Here, as responses were not received despite extensions, the court compels responses to the FROGs and RFAs, without objections within 15 days of the order.

As for monetary sanctions, absent an explanation to explain to otherwise, the court finds them warranted because despite no formal requirements to meet-and-confer,[4] Plaintiff nevertheless made multiple good faith effort to resolve this discovery dispute informally.

Counsel seeks $1,422.50 per Motion, calculated as follows [3 hours total preparing both motions, $120 for filing fees for both motions, anticipated 2 hours reviewing the opposition and drafting a reply, and .5 hours appearing at the hearing at $450/$475/hour].

Utilizing a Lodestar approach, and in view of the totality of the circumstances—notably that the motions are identical, the legal issue not complex, the motions are brief, no reply was necessary, and the hearing will be brief—the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,120 (i.e., $250/hour for 3.5 hours (motions) + $120 filing fee [$60/motion] + .5 hours for the hearing).

Conclusion

Based on the foregoing, the motions are granted, and monetary sanctions are imposed in the total, reduced amount of $1,120, payable within 20 days of the hearing.