Judge Cynthia A Freeland, Case 37-2021-00047678-CU-PO-NC 2023-11-28 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2021-00047678-CU-PO-NC, Date: 2023-11-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 02, 2023

11/03/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited PI/PD/WD - Other Discovery Hearing 37-2021-00047678-CU-PO-NC IBARRA VS MCDONALD'S CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Amended Motion, 10/06/2023

Defendant Cancorp, Inc. ('Defendant')'s motion: (1) to compel Plaintiff Benjamin Ibarra ('Plaintiff') to provide responses to Form Interrogatories – General (Set Two), Requests for Production of Documents (Set Two), and Special Interrogatories (Sets One and Two); (2) to deem admitted Requests for Admission (Set One); and (3) for sanctions, is granted in part and denied in part.

The court construes Plaintiff's lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the uncontroverted evidence establishes that on May 31, 2023, Defendant electronically served Plaintiff with Requests for Production of Documents (Set Two), Requests for Admission (Set One), Form Interrogatories – General (Set Two), and Special Interrogatories (Set One). See Khurin Decl., ¶ 3; Exs. A, C. Plaintiff's responses were initially due by July 5, 2023. See Cal. Code Civ. P. §§ 1010.6(a)(3)(B), 2030.260(a), 2031.260(a), 2033.250(a). On August 10, 2023, Defendant granted Plaintiff an extension of time to respond to the aforementioned discovery to September 9, 2023. Ibid., ¶ 4, Ex. B. On August 18, 2023, Defendant served Plaintiff with Special Interrogatories (Set Two) and, apparently, re-served Requests for Production of Documents (Set Two).

Ibid., ¶ 5. To date, Plaintiff has not provided responses or documents responsive to the discovery requests. In addition, Plaintiff has not provided evidence that he has served, before this hearing, proposed responses to the Requests for Admission that substantially comply with California Code of Civil Procedure ('CCP') § 2033.280(c). See Cal. Code Civ. P. § 2033.208(c); St. Mary v. Sup. Ct. (2014) 223 Cal. App. 4th 762, 776.

The foregoing constitutes good cause to grant the motion as to the Form Interrogatories, Requests for Production of Documents, and Requests for Admission. See Cal. Code Civ. P. §§ 2030.290(b), 2031.300(b), 2033.280(b). However, as to the Special Interrogatories, the court notes that the number of specially prepared interrogatories is limited to 35 unless the discovery request is accompanied by a declaration substantiating the need for a greater amount. See Cal. Code Civ. P. §§ 2030.030, 2030.050.

In this case, Special Interrogatories (Set One), which has been attached as Exhibit A to Mr. Khurin's declaration, consists of 48 separate interrogatories and is not accompanied by the appropriate declaration under CCP § 2030.050. Moreover, Defendant has not included as part of its moving papers a copy of Special Interrogatories (Set Two) – though such discovery is not permissible as Defendant already exceeded the amount of special interrogatories allowed under the Code without submitting the appropriate declaration under CCP § 2030.050. Consequently, the court can only grant the motion as to the first 35 special interrogatories set forth in Set One.

The court may award sanctions to the party seeking to compel discovery even though no opposition to the motion was filed. See Cal. R. Ct. 3.1348(a). The court must impose sanctions against any party who Calendar No.: Event ID: TENTATIVE RULINGS

3032956 CASE NUMBER: CASE TITLE: IBARRA VS MCDONALD'S CORPORATION [IMAGED] 37-2021-00047678-CU-PO-NC unsuccessfully makes or opposes a motion to compel a response to written interrogatories or a request for production of documents '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.' Cal. Code Civ. P. §§ 2030.290(c), 2031.300(c). The party subject to sanctions bears the burden of proving that he or she acted with substantial justification. See Doe v. U.S. Swimming, Inc. (2011) 200 Cal. App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact.

See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd.

(2009) 178 Cal. App. 4th 1478, 1480). Additionally, the court must 'impose a monetary sanction . . . on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.' Cal. Code Civ. P. § 2033.280(c). In this case, Plaintiff, in failing to oppose the motion, has not met his burden of demonstrating that he acted with substantial justification in failing to provide responses and documents responsive to the discovery requests. The court, however, declines to issue sanctions because, under the circumstances, the imposition of sanctions would be unjust. More specifically, Defendant has failed to provide any evidence substantiating its $1,350.00 sanctions request.

Instead, Defendant states in a conclusory manner in its Memorandum of Points and Authorities ('MPA') that 'Plaintiff has undoubtedly failed to submit to an authorized discovery method. A monetary sanction is therefore warranted in the amount of $1,350.00, which reflects Defendant's attorneys' fees and costs associated with the instant Motion. Khurin Decl. ¶ 8.' See Defendant's MPA, page 6, ll. 18-20.

Paragraph 8 of Mr. Khurin's declaration, in turn, merely states that 'Defendant is entitled to the award of sanctions against Plaintiff for $1,350.' See Khurin Decl., ¶ 8. Absent, however, is any evidence of Mr.

Khurin's hourly rate, the amount of time expended on the motion, or any other information the court needs to determine the reasonableness of the sanctions request. Consequently, the court denies Defendant's request for monetary sanctions on the ground that imposition of sanctions under the circumstances would be unjust.

In light of the foregoing, the court: (1) grants the motion as to Form Interrogatories – General (Set Two), Requests for Production of Documents (Set Two), and Special Interrogatories (Set One) Nos. 1-35 and directs Plaintiff to serve verified Code-compliant responses, without objections, and documents responsive to those requests within twenty-one (21) days of this hearing; (2) grants the motion as to Requests for Admission (Set One) and deems admitted the genuineness of any documents and the truth of any matters specified in that request; (3) denies the motion as to Special Interrogatories (Set Two); and (4) denies Defendant's sanctions request.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, November 3, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 3, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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