Judge: Cynthia A Freeland, Case: 37-2022-00050945-CU-OR-NC, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 04, 2024

01/05/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other Real Property Discovery Hearing 37-2022-00050945-CU-OR-NC DENNIS E MULLIGAN TRUSTEE OF THE DENNIS E MULLIGAN AND MAUREEN CUMMINGS MULLIGAN LIVING TRUST DATED FEBRUARY 24 2004 VS BLACK CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 09/11/2023

Plaintiffs Dennis E. Mulligan and Maureen Cummings Mulligan, Trustees of the Dennis E. Mulligan and Maureen Cummings Mulligan Living Trust Dated February 24, 2004 (collectively, 'Plaintiffs')'s motion to compel Defendant Kathleen Black ('Defendant') to provide responses to Plaintiffs' Request for Production of Documents (Set One) (the 'Discovery Request'), and for sanctions, is granted.

Initially, the court must address Defendant's December 27, 2023 'Response' to the pending motion. To start, the 'Response' was untimely. California Code of Civil Procedure ('CCP') § 1005(b) provides, in relevant part, that '[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing.' Cal. Code Civ. P. § 1005(b).

Where, as here, service of the moving papers was effectuated via U.S. Mail, the time to respond is extended by five calendar days. See Cal. Code Civ. P. § 1013(a). In this case, Plaintiff served Defendant with the moving papers via U.S. Mail on September 11, 2023. Accounting for court holidays on December 25, 2023 and January 1, 2024, Defendant's opposition was due by December 18, 2023. She did not file her 'Response' until December 27, 2023. Even if Defendant had filed her 'Response' timely, she has not provided the court with a proof of service reflecting that Defendant ever served Plaintiffs with the opposition papers. The court is left to construe the lack of a timely filed and served opposition as Defendant's concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. However, even if the court did consider Defendant's 'Response,' it would not change the court's ruling. Moreover, Defendant's responses to the Discovery Request, which are attached to her 'Response' as Exhibits 20 to 20.10, are not Code-compliant and do not appear to have been served upon Plaintiffs given the lack of proof of service.

That being said, the uncontroverted evidence establishes that on July 19, 2023, Plaintiffs served Defendant with the Discovery Request. See Bojic Decl., Ex. A. Defendant's responses were due by August 24, 2023. Ibid., ¶ 2; Cal. Code Civ. P. §§ 1013(a), 2031.260(a). On August 29, 2023, Plaintiffs' counsel sent Defendant a meet and confer correspondence regarding the outstanding discovery and requesting that responses and documents be served by September 10, 2023. See Bojic Decl., Ex. B.

Defendant did not provide the requested responses, thus necessitating the motion to compel. The foregoing constitutes good cause to grant the motion. See Cal. Code Civ. P. § 2031.300(b).

The court may award sanctions to the party seeking to compel discovery even though no timely opposition to the motion was filed. See Cal. R. Ct. 3.1348(a). The court must impose sanctions against any party who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, '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. Calendar No.: Event ID:  TENTATIVE RULINGS

3019393 CASE NUMBER: CASE TITLE:  DENNIS E MULLIGAN TRUSTEE OF THE DENNIS E MULLIGAN AND  37-2022-00050945-CU-OR-NC Code Civ. P. § 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). In this case, Defendant has not met her burden of demonstrating that she acted with substantial justification in failing to produce responses and documents responsive to the Discovery Request.

In light of the foregoing, the court grants the motion and: (1) orders Defendant to serve verified Code-compliant responses, without objections, and documents responsive to the Discovery Request within fourteen (14) days of this hearing, and (2) awards Plaintiffs sanctions in the amount of $1,382.50 (which omits the time spent drafting the Discovery Response and the unnecessary fees and costs anticipated to review the 'Response,' draft a reply, and attend the hearing), due and payable to Plaintiffs within thirty (30) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, January 5, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 5, 2024. 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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