Judge: David A. Rosen, Case: 21GDCV00182, Date: 2023-02-10 Tentative Ruling
Case Number: 21GDCV00182 Hearing Date: February 10, 2023 Dept: E
Hearing Date: 02/10/2023 – 10:00am
Case No: 21GDCV00182
Trial Date: 10/30/2023
Case Name: SERJIK ALEHVERDIAN, et al. v. PALM DELUXE PARTNERS LP
TENTATIVE
RULING ON MOTION TO COMPEL FURTHER RESPONSES
Moving Party: Defendants, Palms Deluxe Partners, LP (PDP-LP);
Palms Deluxe Properties, LLC (PDP-LLC); Anupam Patel (Patel) (collectively
Defendants)
Responding Party: Plaintiffs, Serjik Alehverdian, indiv; Mineh Abrahimi, indiv;
Tracy Alehverdian, indiv; Travis Alehverdian, a minor by and through his
guardian, Serjik Alehverdian (collectively Plaintiffs)
Opposition submitted; Reply submitted late, and the
Court will still consider the Reply, Notice of untimely Reply submitted
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok
RELIEF REQUESTED
Defendants
move to compel further responses from all Plaintiffs to Form Interrogatories,
Special Interrogatories, Request for Production, and requests for admissions
propounded on Serjik Alehverdian, Mineh Abrahimi, Tracy Alehverdian, and Travis
Alehverdian, a minor through his guardian, Serjik Alehverdian (Plaintiffs). Motion
is based on CCP §§2030.300, 2031.310, and 2033.290.
Defendants also seek
sanctions against Plaintiffs in the amount of $9,000.00 for having to bring
this motion and for their misuses of the discovery process.
ANALYSIS
Motions, fees, separate statement, and parties
As
a preliminary matter, Defendants state in their notice of motion that the
instant motion applies to compelling further responses to Form Interrogatories,
Special Interrogatories, Request for Production, and Requests for Admissions as
to all Plaintiffs. Defendants list four different Plaintiffs, and four
different discovery methods – Form interrogatories, Special interrogatories,
Requests for Production, and Requests for Admissions.
A motion must be
brought separately as to each discovery method at issue. The instant motion should have been filed as sixteen
separate motions and sixteen filing fees paid.
Instead, Defendants filed only one motion to compel further responses to
four different discovery instruments on four different plaintiffs. “[P]ayment
of filing fees is both mandatory and jurisdictional.” (Hu vs. Silgan Containers Corp. (1999)
70 Cal. App. 4th 1261, 1269.)
Further, Defendants’ notice of motion is entirely
lacking as to identifying the interrogatories, demands, or requests by set and
number as to which Defendants are compelling further. “A motion concerning interrogatories,
inspection demands, or admission requests must identify the interrogatories,
demands, or requests by set and number.” (Cal. Rules of Ct. Rule 3.1345(d).)
Not only did Defendants not file a separate statement
as to each discovery method and each party with its moving papers, but the
notice of errata filed by Defendants on 1/23/2023 is defective in several
aspects. For example, the separate statement filed on 1/23/2023 doesn’t even
indicate which Plaintiff the attached separate statement applies to, or which
Plaintiff provided which responses. Not to mention, the Defendants filed a
singular separate statement for what should have been 16 motions and 16
separate statements. (See Cal. Rules of Court Rule 3.1345(a)-(d).)
Further, moving party refers to exhibits in its motion
that do not exist. Those exhibits are also not in Defendants’ notice of errata.
Timeliness
Setting
aside the fact that Defendants didn’t properly file these motions, it appears
that all of them would be untimely even if they were properly filed.
“Unless notice of this motion is given within 45 days
of the service of the verified response, or any supplemental verified response,
or on or before any specific later date to which the propounding party and the
responding party have agreed in writing, the propounding party waives any right
to compel a further response to the interrogatories.” (CCP §2030.300(c).)
“Unless notice of this motion is given within 45 days
of the service of the verified response, or any supplemental verified response,
or on or before any specific later date to which the demanding party and the
responding party have agreed in writing, the demanding party waives any right
to compel a further response to the demand.” (CCP §2031.310(c).)
“Unless notice of this motion is given within 45 days
of the service of the verified response, or any supplemental verified response,
or any specific later date to which the requesting party and the responding
party have agreed in writing, the requesting party waives any right to compel
further response to the requests for admission.” (CCP §2033.290(c).)
Here, moving party states that the parties agreed on
the date of November 30, 2022 as the deadline to file a motion to compel. Opposition
even points out that Plaintiffs offered to Defendants to extend the deadline,
but that Defendants refused to extend the deadline to compel past November 30,
2022. As Opposition has pointed out, this motion was not filed until December
1, 2022, which is past the date in which the parties previously mutually agreed
the deadline to compel would be – November 30, 2022.
Deyo v. Kilbourne states
the following:
If answers or
objections are on file, and the propounding party deems that further response
is required, he must file a motion to compel further answers within 30 days
after the date of service of answers or objections, unless there is a
stipulation extending time, or the court, on motion and notice, and for good
cause shown, enlarges the time. Otherwise, the party is deemed to have waived
the right to compel further answers. (Code Civ. Proc., § 2030, subd.(a).) This
statue is mandatory and a court may not entertain a belated motion to compel…
(Deyo v.
Kilbourne (1978) 84 Cal.App.3d 771, 788.)
Further, as stated in Sexton v.
Superior Court, “Given the symmetry of section 2030, subdivision (l) and
2031, subdivision (l), we conclude that the time within which to make a motion
to compel production of documents is mandatory and jurisdictional just as it is
for motions to compel further answers to interrogatories.” (Sexton v.
Superior Court (1997) 58 Cal.App.4th 1403, 1409-1410.)
Here, although Deyo and Sexton pertained
to older versions of the statutes and were repealed, it appears as if those
cases stand for the proposition that motions to compel further must be timely
filed. Here, the parties agreed to extend the deadline to compel further
responses past the initial 45 days until November 30, 2022. Even though
Plaintiffs attempted to get Defendants to agree to later date past November 30,
2022, Defendants refused to agree to extend the deadline past November 30,
2022, and Defendants filed the instant motion late on December 1, 2022.
In their late Reply, Defendants attempt to
argue that their motion to compel further was timely under three theories.
Defendants first argue that Defendants use
APEX for e-filling, and APEX sent Defendants a proof of filing indicating that
Defendants’ motion to compel was filed with the Court on November 30, 2022, at
10:56pm PST and is thus timely. What the Court does not understand about
Defendants’ argument is that Defendants argue that the instant motion was
submitted to the Court on November 30, 2022. However, the Court file reflects
that the instant motion filed with the Court, and signed by Defendants’ counsel,
on December 1, 2022. The proof of service of the motion upon Plaintiffs
reflects service of the motion on December 1, 2022. The motion is late.
The second theory asserted in the late Reply
is that Plaintiffs are estopped from arguing this motion to compel further deadline
extended beyond November 30, 2022. Here, the Court fails to understand
Defendants’ argument. Plaintiffs are not arguing that this motion to compel
deadline extended beyond November 30, 2022.
The third theory that the Reply asserts is
as follows:
In its Opposition,
Plaintiff cites Sexton v. Superior Court, 58 Cal.App.4th 1403, 1404, 1410
(1997) as authority supporting the 45-day deadline for filing a MTCF. However,
Plaintiff’s argument over looks CCP § 473 and the Court’s holding in Zellerino
v. Brown, 235 Cal. App. 3d 1097 (1991) where the Court held relief under § 473
is available in matters related to the Civil Discovery Act (“CDA”)5 . Zellerino
determined discovery demands are a proceeding and 473 relief is available
unless the CDA provides a remedy. Id. at pp. 1104-1106; See also Weil and Brown
Civil Procedure Before Trial§ 8:1038 et seq. In Zellerino, the Court granted
Defendant § 473 relief because the CDA did not provide a remedy for late filed
demands for exchange of experts. Id. at pp. 1104-1106. See also Weil and Brown
Civil Procedure Before Trial 8:1150 (stating a party can seek relief from the
45-day MTCF deadline under §473 as the CDA does not provide a relief from the
45-day limit.
Importantly,
Zellerino does not conflict with Sexton.6 Sexton held the 45-day deadline set
forth in § 2030.290 is not jurisdictional because the court can grant a MTCF if
the opposing party does not object. Sexton, 58 Cal. App. at 1407 and fn. 4. The
Sexton Court also noted if a Propounding Party does not object, it could be
estopped from further objections based on the 45- day deadline. Id. If the
Responding Party objects per the 45-day deadline the Court can only deny the
MTCF. However, per Zellerino, the Propounding Party can seek relief from the 45
day deadline via §473 relief.7 See Lee v. Wilkins, CASE#: MSC18-00816 (Contra
Costa Superior Court 2021)8 (stating a party seeking responses to RFPDS must
file the motion within 45 days per § 2031.310(c) and Sexton; however a party
may seek relief from the waiver per § 473 and Zellerino.
In this case, the
Plaintiff is asking the Court to deny the MTCF based on a statutory deadline.
Thus, per § 473, Defendant is permitted to seek relief this Court from the 45-day
deadline applicable to a MTCF. Save Our Forest & Ranchlands 50 Cal.App.4th
at 1757….
Defendant has
produced substantial evidence to support relief under § 473 and its
mistake/inadvertence was due to excusable neglect. Defendant’s counsel was working
from home late and he did not ask the ADLI Admin Staff to get a hearing date.
DVN at ¶ 13. Anyone could have made the same mistake—and Defendants’ suspect
other counsel have made the same mistake. Id. Further, Defendants’ counsel
promptly corrected the mistake. Id.
(Reply p. 6-7.)
Here, the Court doesn’t find Defendants’
argument availing because Defendants’ have not filed a noticed motion for
relief under 473. Therefore, this argument is outside the scope of this motion.
Meet and Confer
“A
motion under subdivision (a) shall be accompanied by a meet and confer
declaration under Section 2016.040.” (CCP §2033.290(b).)
“The motion shall be accompanied by a meet and confer
declaration under Section 2016.040.” (CCP §2031.310(b)(2).)
“A motion under subdivision (a) shall be accompanied
by a meet and confer declaration under Section 2016.040.” (CCP
§2030.300(b)(1).)
There are no meet and confer declarations by moving
party.
Sanctions
“The
court shall impose a monetary sanction under Chapter 7 (commencing with Section
2023.010) against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel further response, 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.” (CCP §2033.290(d).)
Except as provided in subdivision (j), the court shall
impose a monetary sanction under Chapter 7 (commencing with Section 2023.010)
against any party, person, or attorney who unsuccessfully makes or opposes a
motion to compel further response to a demand, 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. (CCP §2031.310(h).)
“The court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a further
response to interrogatories, 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.” (CCP §2030.300(d).)
Here, moving party requested sanctions in the amount
of $9,000.00. However, moving party did not include a declaration as to how the
amount of $9,000.00 was determined. Most importantly, moving party unsuccessfully
made this motion.
Plaintiffs neither requested sanctions nor provide for
an award of same.
Thus, the Court awards no sanctions to either side on
this Motion, as sanctions would be unjust under the circumstances.
TENTATIVE RULING
Motion
to compel further responses DENIED.