Judge: Christopher K. Lui, Case: 18STCV03863, Date: 2022-08-03 Tentative Ruling

Case Number: 18STCV03863    Hearing Date: August 3, 2022    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motions addressed herein.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.  Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.  If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

            Plaintiff Juan Herrera (hereinafter “Plaintiff”)  alleges that he was wrongfully terminated after his former employer failed to accommodate Plaintiff’s disabilities and that Plaintiff was harassed for his actual and/or perceived disabilities, and  need for accommodations in his occupation.

            Defendants Sherif Antoon and Antoon Enterprises, Inc. (hereinafter “Defendants”) move the Court seeking relief from waiver of objections available to Defendant to Plaintiff’s Request for Production of Documents Set One. (Defendant Motion for Relief Under 473b, p.1-2,  filed 6/24/22).

TENTATIVE RULINGS     

            Defendants’ Motions to Seek Waiver of Objections to Discovery are GRANTED. 

            Plaintiff’s motions to compel responses to request for production of documents are GRANTED.

            Plaintiff’s requests for sanctions against Defendants are GRANTED in the reduced total amount of $1, 134.52, jointly and severally. Sanctions are to be paid to Plaintiff’s counsel within 10 days.

Motion to Seek Waiver of Objections to Discovery

            Under CCP 2031.300(a)(1)-(2), (a) 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). 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.

            Here, Defendants seek waiver of objections to discovery because Defendants allege that they did not receive notification of Plaintiff’s discovery request on April 6, 2022 due to their attorney’s failure to accurately calendar the deadline for Plaintiff’s discovery request. (Defendant’s Motion for Relief Under 473b, p. 5). Specifically, Plaintiff propounded its discovery request on Defendants on April 6, 2022 which were due on or before May 8, 2022. (Decl. of Badkoubehi, ¶3). However, Defendants allege  that because the propounded discovery request were served via email, and as part of discovery on 17 different defendants, counsel for defendant overlooked this piece of discovery due to the volume of discovery requests propounded on several different defendants. (Defendant’s Motion for Relief Under 473b, p. 5). Lastly, Defendants allege that because their counsel is responsible for notifying them of when to respond to discovery responses, Defendants were not aware that any responses were due based on their counsel’s oversight.

            Based on the foregoing, the Court finds that Defendants’ failure to timely respond to Plaintiff’s discovery requests was due to their counsel’s mistake or excusable neglect, and therefore, GRANTS Defendants’ Motion to Seek Waiver of Objections to Discovery.

Motions (x2) to Compel Responses to Requests For Production of Documents

            Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc., § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc., § 2031.300, subd. (a).) Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

            Here, Plaintiff served Defendant Antoon Enterprises and Sherif Antoon with Requests for Production of Documents, Set Two on March 28, 2022 electronically. (Decl. of Agadzhanov at ¶ 2). Plaintiff did not include in his Motion any efforts of communication on Defendant’s behalf or requests for extensions. Additionally, no opposition papers were filed by Defendants. The Court finds Plaintiff’s failure to comply with discovery requests as an abuse of the discovery process.

            Plaintiff also requests sanctions against Defendants in the amount of $4,534.52. (Decl. of Agadzhanov, ¶3). Plaintiff’s counsel charges $400 per hour for his services and alleges that he spent (2) hours of attorney time working on these motions, (1) hour reading and analyzing Defendant’s opposition, (2) hours drafting the reply, (1) hour preparing the RPD requests, and anticipates (90) minutes will be spend attending the hearing for this motion. (Id). Lastly, Plaintiff’s counsel requests $60 for the hearing date reservation fee, $7.26 for the filing fee of this motion, another $60 for the reservation date for the ex-parte hearing and another $7.26 filing fee for the ex-parte notice. (Id.)

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 Court, Rule 3.1348(a).)                       

             The Court finds that Plaintiff’s counsel’s request for sanctions is unreasonable. Both motions were identical and approximately 6 pages in length. Additionally, since Defendant has not filed an opposition, a reply is not necessary. However, the Court finds that sanctions are appropriate in this matter and will award Plaintiff sanctions in the reduced amount of $1,134.52 for (1) hour in drafting these instant motions, (90) minutes for attending the hearing of this motion, two ($60) reimbursement for the filing fees of this motion and (2) $7.26 payments associated with Plaintiff’s filing fees.