Judge: Colin Leis, Case: 20STCV31461, Date: 2023-02-01 Tentative Ruling

Case Number: 20STCV31461    Hearing Date: February 1, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Plaintiff Katy Silvester

RESPONDING PARTY:        Defendants Devon Spierling and The Reserve Lounge, LLC (omnibus opposition)

1. Plaintiff’s Motion to Deem the Truth of Matters Specified in Requests for Admission, Set One (Propounded Upon Defendant Spierling), and for Monetary Sanctions Against Defendant Devon Spierling and Defense Counsel in the Amount of $960 

2. Plaintiff’s Motion to Compel Responses to Form Interrogatories, Set One (Propounded Upon Defendant Spierling), and for Monetary Sanctions Against Defendants (sic) and Defense Counsel in the Amount of $960 

3. Plaintiff’s Motion to Deem the Truth of Matters Specified in Requests for Admission, Set Two (Propounded Upon The Reserve Lounge, LLC), and for Monetary Sanctions Against Defendant The Reserve Lounge, LLC and Defense Counsel in the Amount of $960 

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

            Plaintiff Katy Silvester dba Under Raidar filed this action against defendants The Reserve Lounge, LLC (“Reserve Lounge”), Eric Cloutier (“Cloutier”), and Devon Spierling (“Spierling”) (collectively, “Defendants”), on August 18, 2020.  Plaintiff filed the operative Second Amended Complaint on January 22, 2021.

On September 2, 2022, Plaintiff served Requests for Admissions, Set One (“RFA”) and Form Interrogatories, Set One (“FR”) on Spierling.  (Siman Decl.-RFA, ¶ 2, Ex. 2; Siman Decl.-FR, ¶ 4, Ex. A.)  On September 12, 2022, Plaintiff served Requests for Admissions, Set Two  (“RFA 2”) on Reserve Lounge.  (Siman Decl.-RFA 2, ¶ 2, Ex. A.)  As of the date of the filing of the motions, Defendants had not served responses to any of the discovery requests.  (Siman Decl.-RFA, ¶ 5; Siman Decl.-FR, ¶ 3; Siman Decl.-RFA 2, ¶ 5.)

On October 26, 2022, and October 27, 2022, Plaintiff filed their motions seeking an order deeming the truth of the matters set forth in the above-noted requests for admission admitted, and compelling defendant Spierling to serve verified responses to the form interrogatories.  Plaintiff also requested for each of the motions sanctions in the amount of $960 per motion against Spierling and defense counsel.

On December 13, 2022, Plaintiff filed an ex parte application to advance the three motions from their original mid-2023 hearing dates.  The court granted the ex parte application on December 16, 2022, expressly advancing to December 23, 2022 the hearing on each of the three motions; however, the related minute order issued that day, in which the court on its own motion advanced and continued the motions to December 28, 2022, erroneously omitted one of the three motions – the motion to deem matters admitted as to defendant The Reserve Lounge, LLC, originally set for hearing on August 15, 2023 – when it recited the hearings being advanced and continued.  (The December 28, 2022 matters were then continued to February 1, 2023, by court order dated January 6, 2023).  The Court finds that the third motion was omitted from the court’s December 16, 2022 minute order by error or inadvertence and nunc pro tunc corrects that minute order to include this third motion among the matters advanced and continued that date and properly before the court today.  The court notes that Defendants’ omnibus opposition addresses all three motions (albeit while asserting that only two motions are currently before the court due to the error noted), and as such the court finds Defendants will not be prejudiced by the court addressing all three motions.

LEGAL STANDARD

¿¿            If a party to whom interrogatories were directed fails to serve a timely response, the propounding party may move for an order to compel responses without objections.  (Code Civ. Proc., § 2030.290, subd. (b).)  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 truth of any matters specified in the requests be deemed admitted.  (Code Civ. Proc., § 2033.280, subd. (b).) Moreover, failure to timely serve responses waives objections to the requests.  (Code Civ. Proc., §§ 2030.290, subd. (a), 2033.280, subd. (a).)  Failure to verify a response is equivalent to no response at all.  (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)  

¿            If the court finds that a party has unsuccessfully made or opposed such a motion, the court “shall impose a monetary sanction . . . 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. (c), 2033.290, subd. (d).)¿ 

DISCUSSION

            The three motions are moot.  In their opposition, Defendants assert they served verified responses to Plaintiff’s discovery requests after Plaintiff filed the three motions.  Spierling served his responses to the form interrogatories on Plaintiff on December 18, 2022.  (Carlin Decl., ¶ 4, Ex. C.)  Both defendants served their responses to requests for admissions on Plaintiff on December 19, 2022.  (Carlin Decl., ¶¶ 2-3, Exs. A and B.)  Despite Plaintiff’s contention in the reply that the responses were not verified, the submitted responses contain verifications.  (See Carlin Decl., Exs. A-C.) Plaintiff’s assertion in her reply that Defendants’ responses are insufficient is not properly before the court. 

A motion to compel’s mootness does not necessarily bar the moving party from recovering attorney’s fees as discovery sanctions when appropriate. Here, however, Plaintiff’s motions were untimely. On March 30, 2020, the parties submitted a joint stipulation and order to continue the May 9, 2022 trial date for approximately five months.  The parties agreed the new trial date would serve as the initial trial date from which all discovery, motion, and other trial-related cut-offs and completed dates would be calculated.  The court entered the joint stipulation and order and continued the trial to November 7, 2022.  Nothing in the record indicates that the court extended the deadline for filing discovery-related motions when it continued the trial date.  Thus, to be code compliant, October 24, 2022, was the last day to hear Plaintiff’s motions to compel (Code Civ. Proc. § 2024.020, subd. (a)), and Plaintiff was required to serve and file her motions no later than September 30, 2022 (Code Civ. Proc. § 1005, subd. (b)).  Plaintiff did not, however, file her motions until October 26 and 27, 2022.  Because Plaintiff’s motions are untimely, the court denies Plaintiff’s request for sanctions.

CONCLUSION 

The motions are moot.

The request for sanctions is denied. 

Plaintiff is ordered to give notice of this ruling. 

IT IS SO ORDERED. 

DATED:  February 1, 2023

_____________________________

Colin Leis

Judge of the Superior Court