Judge: Colin Leis, Case: 21STCV36389, Date: 2023-08-28 Tentative Ruling
Case Number: 21STCV36389 Hearing Date: August 28, 2023 Dept: 74
Swamp
Capital, LLC v. Ginger Green, Inc., et al.
Plaintiff’s Motion to Compel Responses
to Form Interrogatories (Set One) and Request for Sanctions.
The
court considered the moving papers, opposition, and reply.
TENTATIVE RULING
The court grants this motion because
Defendants Jerrold Lee, Harry Hae Chun-Lee, and Owen Kim have yet to provide
responses to the form interrogatories. Moreover, the court orders sanctions
against the Defendants because they lack substantial justification for their
failure to timely respond.
BACKGROUND
This
action arises from a dispute over a contract to lease real property.
On
October 1, 2021, Plaintiff Swamp Capital, LLC (Plaintiff) filed a complaint
against Defendants Ginger Green, Inc., Jerrold Lee, Harry Hae Chun-Lee, and
Owen Kim (Defendants). In the complaint, Plaintiff alleges the following causes
of action: breach of contract, quiet title, fraud, and declaratory relief.
On
May 18, 2022, Plaintiff allegedly served Defendants with its first set of
discovery requests, including the form interrogatories at issue.
Since
Plaintiff received no responses, it sent Defendants a meet and confer letter on
August 18, 2022.
On
August 22, 2022, Plaintiff allegedly resent Defendants the discovery requests,
including the form interrogatories at issue.
On
June 14, 2023, Plaintiff filed this motion to compel responses to the form
interrogatories.
LEGAL STANDARD
¿¿ If
a party to whom interrogatories or an inspection demand were directed fails to
serve a timely response, the propounding party may move for an order compelling
responses without objections. (Code Civ. Proc., §§ 2030.290, subd. (b),
2031.300, subd. (b).) Moreover, failure to timely serve responses waives
objections to the requests. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300,
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), 2031.300, subd. (c).)¿
DISCUSSION
The court finds that this motion is
not moot because Defendants Jerrold Lee, Harry Hae Chun-Lee, and Owen Kim have
yet to provide responses to the form interrogatories. Defendants’ counsel David
Welch maintains he did not receive form interrogatories for these Defendants on
May 18, 2022. (Arrieta Decl., ¶¶ 5-6.) However, Plaintiff resent all the form
interrogatories to Mr. Welch’s firm and a firm associate using the following
email addresses: litigation@drwelchlaw.com and Aimoisili@drwelchlaw.com. (Afifi
Decl., ¶ 4; Ex. 3.) The court notes that a typographical error in Mr. Welch’s
email address was the reason he himself apparently never received the form
interrogatories. (Afifi Decl., ¶ 4; Ex. 3.) But Mr. Welch has not persuaded the
court that this error justifies Defendants’ non-compliance. First, an associate
who was engaged in the meet-and-confer process received the form
interrogatories. Second, Mr. Welch has not indicated that he ever followed up
about the form interrogatories, nor has he explained his failure to do so.
Thus, the court grants Plaintiff’s motion to compel discovery responses from
Defendants Jerrold Lee, Harry Hae
Chun-Lee, and Owen Kim. The court also finds that sanctions are
warranted. Plaintiff’s request for attorney fees is reasonable (($815) x (2.5
hours (Motion) + 1 hour (reviewing Opposition and preparing Reply) + 1 hour
(hearing) + $61=$3,728.50). (Afifi Decl., ¶ 5.)
CONCLUSION
Based
on the foregoing, the court grants Plaintiff’s motion to compel discovery. Defendants Jerrold Lee, Harry Hae Chun-Lee, and Owen Kim’s
responses are due within 10 days of this date.
The
court orders sanctions against Defendants Jerrold Lee, Harry Hae Chun-Lee, and
Owen Kim in the sum of $3,728.50 payable to Plaintiff by September 28, 2023.
Plaintiff is ordered to give notice.
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Swamp
Capital, LLC v. Ginger Green, Inc., et al.
Plaintiff’s Motion to Deem Admitted
Requests for Admission and Request for Sanctions
The
court considered the moving papers, opposition, and reply.
TENTATIVE RULING
Given Defendants’ tardy responses to
the requests for admissions, this motion is moot. But sanctions are mandatory
under Code of Civil Procedure section 2033.280, subdivision (c).
BACKGROUND
This
action arises from a dispute over a contract to lease real property.
On
October 1, 2021, Plaintiff Swamp Capital, LLC (Plaintiff) filed a complaint
against Defendants Ginger Green, Inc., Jerrold Lee, Harry Hae Chun-Lee, and
Owen Kim (Defendants). In the complaint, Plaintiff alleges the following causes
of action: breach of contract, quiet title, fraud, and declaratory relief.
On
May 18, 2022, Plaintiff allegedly served Defendants with its first set of
discovery requests, including the requests for admission (RFAs) at issue.
Since
Plaintiff received no responses, it sent Defendants a meet and confer letter on
August 18, 2022.
On
August 22, 2022, Plaintiff allegedly resent Defendants the discovery requests,
including the RFAs.
On
June 14, 2023, Plaintiff filed this motion to deem admitted the RFAs.
LEGAL STANDARD
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, as well as for a monetary
sanction. (Code Civ. Proc., § 2033.280, subd. (b).) Further, 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.” (Code
Civ. Proc., § 2033.280, subd. (c).) ¿
DISCUSSION
Plaintiff
concedes this motion is moot. However, the court finds that sanctions are warranted.
Even if Defendants were first served with the RFAs on June 14, 2023, their
responses on August 7, 2023, were not timely. (Code Civ. Proc., §§ 101.6(a)(3),
1013 [responses due within thirty days from the date the RFAs were served].) Plaintiff’s
requested attorney fees are reasonable except the court reduces a proposed
double-recovery in recovering fees for attending one hearing for two motions. (Code
Civ. Proc., § 2033.280(c); Afifi Decl., ¶ 5.) The court awards fees for 2.5
hours (Motion) plus 1 hour (reviewing Opposition and preparing Reply) at the
rate of $815 per hour plus a $61 filing fee. (Afifi Decl., ¶ 5.)
CONCLUSION
Based
on the foregoing, the court finds Plaintiff’s motion moot.
The
court orders sanctions against Defendants in the sum of $2,913.50 payable to
Plaintiff by September 28, 2023.
Plaintiff is ordered to give notice.