Judge: Curtis A. Kin, Case: 22STCV34243, Date: 2023-03-28 Tentative Ruling

Case Number: 22STCV34243    Hearing Date: March 28, 2023    Dept: 72

MOTION TO COMPEL INITIAL RESPONSES TO:

(1) FORM INTERROGATORIES; AND

(2) REQUESTS FOR PRODUCTION OF DOCUMENTS

MOTION TO DEEM

REQUESTS FOR ADMISSION ADMITTED

Date:               3/28/23 (8:30 AM)

Case:               Michael Bragar v. Christopher D. Mitchell et al. (22STCV34243)

TENTATIVE RULING:

Plaintiff Michael Bragar’s Motion to Compel Initial Responses to (1) Form Interrogatories, Set One and (2) Requests for Production of Documents, Set One is GRANTED.

Plaintiff Michael Bragar’s Motion to Deem Requests for Admission Admitted is GRANTED.

I.                   MOTION TO COMPEL INITIAL RESPONSES TO (1) FORM INTERROGATORIES, SET ONE AND (2) REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE

Plaintiff Michael Bragar moves to compel initial responses from defendants Christopher D. Mitchell, Westlake Capital Partners, Inc., and Bitcoin Advizers LLC to Form Interrogatories, Set One and Requests for Production of Documents, Set One, which were each served on each defendant separately.

As a preliminary matter, plaintiff did not pay a separate filing fee for each of the six discovery sets that this motion concerns. The filing fee required by Government Code § 70617(a)(4) concerning discovery motions applies “separately to each motion or other paper filed,” “[r]egardless of whether each motion or matter is heard at a single hearing or at separate hearings.” (Gov. Code § 70617(f).) Because plaintiff seeks responses to six different discovery sets, plaintiff was required to pay six separate filing fees of $60, i.e., $360 in total. Plaintiff paid only one filing fee of $60, which means $300 remains due.

On December 16, 2022, plaintiff Michael Bragar served Form Interrogatories, Set One and Requests for Production of Documents, Set One on defendants Christopher D. Mitchell, Westlake Capital Partners, Inc., and Bitcoin Advizers LLC by email. (Sherman Decl. ¶¶ 2-6 & Exs. 1-6.) Regardless of how long electronic service has been effective, defendants concede such method of service was effective at the time of service. (Opp. at 6:9-12, citing Rule of Court 2.251(a).) The deadline to serve responses was January 17, 2023. (CCP §§ 2030.260(a), 2031.260(a) [30 days to serve responses], 1010.6(a)(3)(B) [two court days added with email service].) No responses to the subject discovery have been served. (Id. ¶ 7.) Accordingly, all objections are waived. (CCP §§ 2030.290(a), 2031.300(a).)

Defendants argue that plaintiff failed to meet and confer before filing this motion. Regardless of whether plaintiff served a meet and confer letter on January 23, 2023 (Sherman Decl. ¶ 8 & Ex. 7) or whether the email was sufficiently labeled (Huizaneh Decl. ¶ 5), there is no requirement to meet and confer before filing motions to compel initial responses. (Compare CCP §§ 2030.290 with 2030.300(b)(1); compare also CCP §§ 2031.300 with § 2031.310(b)(2).) Rule of Court 3.724, cited by defendants, provides that, prior to the date set for the initial case management conference, the parties must meet and confer to resolve discovery disputes. (Rule of Court 3.724(1).) Rule of Court 3.724(1) does not directly address motions to compel initial responses under CCP §§ 2030.290 and 2031.300. To the extent that Rule of Court 3.724(1) conflicts with the Code of Civil Procedure, the Code of Civil Procedure controls. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532 [“Rules promulgated by the Judicial Council may not conflict with governing statutes. [Citation.] If a rule is inconsistent with a statute, the statute controls. [Citation]”].)

Defendants also argue that the subject discovery was delivered to the spam folder of their counsel, which counsel did not discover until March 2, 2023. (Huizaneh Decl. ¶ 4.) Defendants maintain that their counsel’s neglect is excusable under CCP § 473(b) because counsel did not have assistants, on whom counsel normally relies in monitoring emails received. (Huizaneh Decl. ¶¶ 6, 7.) Any invocation of CCP § 473(b) is premature, as the contemplated order from which defendants request relief has not yet been entered; indeed, whether an order to serve responses to discovery shall issue is the subject of the instant motion. The answer to the question currently before this Court is simple: because plaintiff properly served discovery and such discovery remains unanswered, plaintiff is entitled to discovery responses.

The motion is GRANTED. Within fifteen (15) days hereof, defendants Christopher D. Mitchell, Westlake Capital Partners, Inc., and Bitcoin Advizers LLC are ordered to serve written verified responses, without objection, to their respective Form Interrogatories, Set One and Requests for Production of Documents, Set One.

Within five (5) court days hereof, plaintiff Michael Bragar shall pay an additional $300 to cover the five additional discovery sets that this motion concerns. If plaintiff does not pay these fees by the stated deadline, the order compelling responses shall apply only to Form Interrogatories, Set One served on defendant Christopher D. Mitchell.

For failing to comply with discovery obligations and thereby forcing plaintiff to file this motion, the Court imposes monetary sanctions on each defendant as follows:

·                     $300.00 against defendant Christopher D. Mitchell

·                     $300.00 against defendant Westlake Capital Partners, Inc.

·                     $300.00 against defendant Bitcoin Advizers LLC

The monetary sanctions are based on 2 hours to prepare the motion (instead of the 3 hours claimed by plaintiff) at an hourly rate of $450.00. The total sanctions are allocated equally to each of the three defendants.

Such monetary sanctions shall be paid to counsel for plaintiff Michael Bragar within 30 days hereof.

II.                MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED

Plaintiff Michael Bragar moves for an order deeming the matters set forth in Requests for Admission, Set One admitted against defendants Christopher D. Mitchell, Westlake Capital Partners, Inc., and Bitcoin Advizers LLC.

As a preliminary matter, plaintiff did not pay a separate filing fee for each of the three discovery sets that this motion concerns. The filing fee required by Government Code § 70617(a)(4) concerning discovery motions applies “separately to each motion or other paper filed,” “[r]egardless of whether each motion or matter is heard at a single hearing or at separate hearings.” (Gov. Code § 70617(f).) Because this motion pertains to three different discovery sets, plaintiff was required to pay three separate filing fees of $60, i.e., $180 in total. Plaintiff paid only one filing fee of $60, which means $120 remains due.

On December 16, 2022, plaintiff Michael Bragar served Requests for Admission, Set One on defendants Christopher D. Mitchell, Westlake Capital Partners, Inc., and Bitcoin Advizers LLC by email. (Sherman Decl. ¶¶ 3-5 & Exs. 1-3.) The deadline to serve responses was January 17, 2023. (CCP §§ 2033.250(a) [30 days to serve responses], 1010.6(a)(3)(B) [two court days added with email service].) No responses to the subject discovery have been served. (Sherman Decl. ¶ 7.) Accordingly, all objections are waived. (CCP §§ 2033.280(a).)

Defendants opposed the instant motion to deem matters admitted on the same grounds asserted with respect to Form Interrogatories, Set One and Requests for Production of Documents. For the reasons stated above, such grounds are unavailing.

The motion is GRANTED. Against defendants Christopher D. Mitchell, Westlake Capital Partners, Inc., and Bitcoin Advizers LLC, the matters set forth in the respective Requests for Admission, Set One, are deemed admitted.

Within five (5) court days hereof, plaintiff Michael Bragar shall pay an additional $120 to cover the two additional discovery sets that this motion concerns. If plaintiff does not pay these fees by the stated deadline, the order deeming matters admitted shall apply only to Requests for Admission, Set One served on defendant Christopher D. Mitchell.

For failing to comply with discovery obligations and thereby forcing plaintiff to file this motion, the Court imposes monetary sanctions on each defendant as follows:

·                     $300.00 against defendant Christopher D. Mitchell

·                     $300.00 against defendant Westlake Capital Partners, Inc.

·                     $300.00 against defendant Bitcoin Advizers LLC

The monetary sanctions are based on 2 hours to prepare the motion (instead of the 3 hours claimed by plaintiff) at an hourly rate of $450. The total sanctions are allocated equally to each of the three defendants.

Such monetary sanctions shall be paid to counsel for plaintiff Michael Bragar within 30 days hereof.