Judge David A. Rosen, Case 21GDCV00781 2023-03-24 Tentative Ruling

Judge: David A. Rosen, Case: 21GDCV00781, Date: 2023-03-24 Tentative Ruling

Case Number: 21GDCV00781 Hearing Date: March 24, 2023 Dept: E

Hearing Date: 03/24/2023 – 8:30am
Case No. 21GDCV00781
Trial Date: 02/26/2024
Case Name: POZEEN LED LTD v. MS ELECTRICAL DISTRIBUTION…

TENTATIVE RULING – MOTIONS TO COMPEL RESPONSES

Moving Party: Plaintiff/Cross-Defendant, Pozeen LED Ltd (Pozeen)
Responding Party: Defendant/Cross-Complainant, MS Electrical Distribution, Inc.

Opposition and Reply submitted.

RELIEF REQUESTED¿

Plaintiff/Cross-Defendant, Pozeen, moves the Court for the following orders:

(1) Compelling Defendant and Cross-Complainant MS Electrical Distribution, Inc. DBA Bees Lighting (“Bees Lighting”) to serve verified answers, without objection, to Form Interrogatories (Set Number One), within five (5) days of the hearing of this Motion;

(2) Compelling Bees Lighting to serve verified answers, without objection, to Special Interrogatories (Set Number One), within five (5) days of the hearing of this Motion;

(3) Compelling Bees Lighting to serve verified answers, admitting all the requests without objection, to Request for Admissions (Set Number One), within five (5) days of the hearing of this Motion;

(4) Compelling Bees Lighting to serve verified answers, without objection, to Request for Production (Set Number One), within five (5) days of the hearing of this Motion;

(5) For monetary sanctions, including attorneys’ fees and costs incurred in making and appearing on this Motion, in the sum of $2,310, against Bees Lighting, within twenty (20) days of the hearing of this Motion.

Pozeen’s motion is made pursuant to CCP §2030.290, et seq..

Procedural
16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300):Ok
Correct Address (CCP §1013, §1013a): Ok

LEGAL STANDARD – COMPEL RESPONSES, INSPECTION DEMANDS
Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. (CCP §2031.260(a).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the party making the demand may move for an order compelling response to the demand. (CCP §2031.300(b).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). (CCP §2031.300(a).) “The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP §2031.300(a)(1)-(2).)

Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a “meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4^th 390, 404 citing Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶¶8:1137 to 8:1144, pp. 8F-59 to 8F-60, ¶¶ 8:1483 to 8:1489, pp. 8H-29 to hH-30 (Weil & Brown).)

LEGAL STANDARD – REQUEST TO DEEM ADMISSIONS ADMITTED
“Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared, unless on motion of the requesting party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” (CCP §2033.250(a).)

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 genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). (CCP §2033.280(b).) 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. (CCP §2033.280(c).)

Further, if a party to whom requests for admission are directed fails to serve a timely response, the party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). (CCP §2033.280(a).) However, the court on motion, may relieve that party from this waiver on its determination that: (1) the party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230, and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (CCP §2033.280(a)(1)-(2).)

LEGAL STANDARD – COMPEL RESPONSES, INTERROGATORIES
Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (CCP 2030.260(a).)

If a party to whom interrogatories are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP §2030.290(b).)

“The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP §2030.290(a).)

TENTATIVE RULING 1

Moving Party, Pozeen, moves to compel verified answers without objections to Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Admissions, Set One, and Request for Production, Set One. Plaintiff alleges on August 4, 2022, Pozeen served the aforementioned requests, and after several extensions, it did not receive responses.

“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (Cal. Rules of Court, Rule 3.1110(a).) Here, problematic with Plaintiff’s motion is that its notice of motion only cites 2023.290 et seq. as grounds for the motion. CCP 2023.290 et seq only pertains to interrogatories. Therefore, Plaintiff did not state the grounds for issuance of the order as to the RPDs nor the RFAs nor cite a single statute with respect to compel responses to RPDs or RFAs. Further, in the motion itself, not once does Plaintiff mention the grounds for issuance of the order as to the RPDs or the RFAs, nor does Plaintiff provide any argument with respect to RPDs or RFAs.

Further, Plaintiff brought this as one motion, when the motion should have been four different motions.

A motion must be brought separately as to each discovery method at issue. Instead, Plaintiff filed only one motion to compel further responses to four different discovery instruments: form interrogatories, special interrogatories, requests for admissions, and requests for production. “[P]ayment of filing fees is both mandatory and jurisdictional.” (Hu vs. Silgan Containers Corp. (1999) 70 Cal. App. 4^th 1261, 1269.)

Although four motions should have been filed, since the notice of motion only stated the grounds for issuance of the order based on 2023.290, interrogatories, the Court will consider this as two motions – one for form and one for special interrogatories. Therefore, Defendant is ordered to pay the appropriate filing fees to the Clerk forthwith for the filing of an additional motion.

As to the merits of the motion, both parties agree that responses were not timely provided. In Opposition, Defendant states it provided responses after the motions were filed; therefore, all the motions are moot with respect to each method of discovery.

In Reply, Plaintiff agrees that the motion to compel responses is now moot. Confusingly, in Reply, Plaintiff also argues that Defendant failed to assert any argument that the admissions should not be deemed admitted, therefore the Court should grant Plaintiff’s motion to be deemed admitted.

In Reply, as to the requests for admission, Plaintiff also cites in relevant part:

In Reply, Plaintiff therefore argues that Defendant did not argue that the failure to respond was the result of mistake, inadvertence, or excusable neglect. Although Plaintiff is correct to argue that Defendant did not file a motion to be relieved from this waiver, what is problematic about Plaintiff’s argument is that the first time Plaintiff brings up the RFAs is in the Reply. As previously noted, Plaintiff did not state in its notice of motion the grounds it sought to have requests for admissions deemed admitted. “A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (Cal. Rules of Court, Rule 3.1110(a).) Not only did Plaintiff not state the grounds for the issuance of the order as to the RFAs or RPDs, but Plaintiff did not provide any argument anywhere in the body of the moving papers as to the basis or grounds that it was moving to compel responses as to the RFAs or RPDS. Therefore, this Court will not consider the two motions as to the RFAs and RPDs.

Since the parties agreed that the motions were moot as to the interrogatories, Plaintiff’s motion to compel responses as to Form Interrogatories and Special Interrogatories are DENIED AS MOOT. Defendant is still ordered to pay the appropriate filing fees to the Clerk forthwith for the additional motion.

As to the RPDs and RFAs, the Court finds that Plaintiff did not properly notice these motions. Therefore, the Court will not consider these as two motions to compel responses as to RPDs set one or RFAs set one.

SANCTIONS TENTATIVE RULING

Sanctions – Interrogatories

“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 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 §2030.290(c).)

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, Rule 3.1348(a) [emph added.].)

Here, moving party requests sanctions in the amount of $2,310. This amount is based on an hourly rate of $450/hour, three hours to prepare moving papers, an estimated additional two hours for appearing at the hearing and travel time, and the $60.00 filling fee.

Opposition argues that Sanctions are inappropriate because Defendant engaged in a good faith effort to resolve the discovery dispute by reaching out several times to request an additional extension to serve responses, but Defendant did not receive a call back. Defendant argues since it provided code compliant responses this motion is in bad faith and a waste of the Court’s and parties’ time.

Discussion

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (CCP §2023.040.)

Here, Plaintiff did not specify the type of sanction sought for each motion. Plaintiff only identified 2030.290, et seq. in its notice of motion which only pertains to interrogatories. Therefore, the Court will not grant sanctions as to any alleged motion for the RFAs or the RPDs.

However, since Defendant did not provide responses until after Plaintiff filed this motion, the Court will award sanctions as to the motions pertaining to interrogatories since Plaintiff cited the statute with respect to interrogatories. The Court GRANTS reasonable discovery sanctions in favor of movant/plaintiff and against Bees Lighting and its counsel of record, jointly and severally, in the amount of $960.00. These sanctions to be paid within 20 days.