Judge David A. Rosen, Case 22GDCV00251 2022-12-16 Tentative Ruling

Judge: David A. Rosen, Case: 22GDCV00251, Date: 2022-12-16 Tentative Ruling

Case Number: 22GDCV00251 Hearing Date: December 16, 2022 Dept: E

Hearing Date: 12/16/2022 – 8:30am
Case No. 22GDCV00251
Trial Date: 07/31/2023
Case Name: SANDA OSWALD v. JOY SANTOS

TENTATIVE RULING– COMPEL RESPONSES FORM INTERROGATORIES

Moving Party: Plaintiff, Sanda Oswald
Responding Party: Defendant, Mel Caoili

Opposition Submitted, No Reply submitted. [It is unclear how/where Opposition and Opposition Declaration was served to Plaintiff. The proof of service states it was hand served on counsel electronically, but the POS doesn’t state the electronic address. Further, the POS states the Opposition papers were served by mail, and there could be an issue with the mailing address as noted in the Analysis section below.]

RELIEF REQUESTED¿
Plaintiff., Sanda Oswald moves this Court for an order compelling Defendant to provide written, verified responses to Form Interrogatories, Set One and for an order of sanctions as against Defendant in the amount of $540.00 for failing to provide any responses to the Form Interrogatories. This motion is brought pursuant to CCP §2030.260, 2023.010, and 2030.290 and is brought by reason of the failure of Defendant, Mel Caoili to provide any responses.

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

BACKGROUND
Plaintiff alleges that she entered into a written contract with Defendants for the rental of real property located at 432 Riverside Dr., Glendale, CA 91204 for a monthly rental rate of $2,050.00 for a period of one year, set to begin on February 1, 2019. Plaintiff alleges that on or around February 2022 Defendants provided Plaintiff with a notice that on March 2022 Defendants would be raising rent from $2,050.00 to $2,150.00. Plaintiff alleges that this rent increase violated the Los Angeles County Updated COVID-19 Tenant Protections Resolution Phase I which was effective from February 1, 2022 – May 31, 2022.

Plaintiff further alleges that on or around March 22, 2022, Defendant Joy Santos sent Plaintiff a text message stating in part, “Hi Sanda, I noticed your excessive use of the laundry machine. We have tried not to raise the rent, but even with the $100 a month increase that just started this month since your tenancy isn't enough to cover the increase in the water bill. I will ask you to limit your laundry use."

Plaintiff alleges that on or around March 26, 2022, Defendants texted Plaintiff stating in part, “It is now midnight and the washer and or dryer just completed its cycle. The noise coming from the machine at this late is causing a nuisance and not allowing us to rest. Please use the machine between 8am and 8pm only…. Thank you.”

In general terms, Plaintiff’s Complaint appears to be premised on the following allegations, “Landlords may not terminate a tenancy, refuse to renew a tenancy, or cause a tenant to involuntarily move out. Here, because Defendants engaged in an illegal rent increase in which in February 2022 the law forbids such notice to be served, and because of the text messages demanded that Plaintiff limit her laundry usage constitutes Defendants acts of breaching the contract, breach of quiet and enjoyment, and unlawfully influencing Plaintiff to vacate. In violation of the Los Angeles Covid-19 Tenant Protections Resolution Was Signed And Went Into Effect On January 25, 2022.” (Compl. ¶13.)

Plaintiff’s Complaint alleges the following causes of action: (1) Breach of Contract, (2) Breach of Covenant of Good Faith and Fair Dealing, (3) Breach of Covenant of Quiet Enjoyment of the Premises, (4) Nuisance [Civil Code §3479], (5) Intentional Infliction of Emotional Distress, (6) Negligent Infliction of Emotional Distress, (7) Negligence, and (8) Constructive Eviction.

On 07/05/2022, Defendants filed an answer to the Complaint. The Answer is a Form Answer, and Defendants checked the box in Paragraph 4 titled “Affirmative Defenses,” and alleged that Plaintiff is not entitled to recover anything because the Updated COVID-19 Tenant Protections Phase 1 rent freeze applied only to unincorporated areas of LA County, and Glendale is an incorporated city and its ordinance on rent freeze expired on October 31, 2020. Defendants also alleges that due to the rising cost of the water bill, they requested Plaintiff to limit usage of the machines, and this text message did not constitute harassment. Defendants further state that the washer and dryer were not included in the tenancy contract and could have been removed at any time because of its abuse by the Plaintiff, but the Plaintiff was merely asked to limit its use and operate the machine at a more reasonable time. Further, Defendants allege that Plaintiff appeared to have been using the laundry machines for business purposes based on the photos attached to Defendants’ answer that show ticket numbers on the clothing[s] that hung on Plaintiff’s closet which Plaintiff requested repeatedly to be fixed due to damage the weight of these clothes placed on the closet bar holder.

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).)

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).)

ANALYSIS
Here, Plaintiff served Form Interrogatories, Set One, to Defendant Mel Caoili on September 2, 2022, via U.S. Mail. Plaintiff does not state when the responses would have been due by or explain how Defendant’s responses were not served within 30 days after service of the interrogatories. However, since the instant interrogatories were propounded on September 2, 2022, via U.S. Mail, and since Defendant stated that verified responses were served on 10/9/2022, the responses appear to be late. The instant motion itself was filed on 10/10/2022 and served via U.S. Mail, and at the time of filing the instant motion on 10/10/2022, Plaintiff alleged she had not received responses yet. Whether or not Plaintiff received Defendant’s responses by the time Plaintiff filed the instant motion is difficult to determine. Defendant’s Opposition states responses were sent on 10/9/2022 via email, which would indicate that Plaintiff filed this motion on 10/10/2022 even though Plaintiff received responses on 10/9/2022.

However, it is difficult to determine if Plaintiff had received these responses by 10/9/2022 for two reasons.

The first is that even though Defendant’s declaration states the responses were served by email on 10/9/2022, Defendant’s proof of service for the responses to the form interrogatories is ambiguous – it is not clear if the responses were served on 10/9/2022 via mail or via email. If these responses were served via mail, then Plaintiff likely had not received the responses in the mail at the time of filing the motion on 10/10/2022.

Second, if the responses were served via mail, it is unclear if Plaintiff received those responses. If served by mail, the responses appear to have been sent to Plaintiff at “Sandra Oswald, 10061 Riverside Dr. Unit 768, Toluca Lake, CA 91602.” Problematic with that are two things: 1. On eCourt, Plaintiff’s address is listed as 10061 Riverside Drive, Unit 768, North Hollywood, CA 91602. 2. In the Court’s 11/4/2022 Minute Order, the Court notes as follows, “Plaintiff’s address verified as 110061 Riverside Dr. Unit #768, Toluca Lake, CA 91602.” Problematic with the verified address in the Court’s Minute Order is it adds a “1” in prior addresses of 10061 Riverside Drive, Unit 768.

Assuming Plaintiff has received verified responses by the time of this hearing, whether or not Plaintiff knew about these responses from Defendant at the time of filing the instant motion, it appears as if Plaintiff’s motion is thus moot, but Plaintiff’s Sanctions request is not mooted.

If Plaintiff did not receive the responses at the proper address, then Defendant is compelled to provide verified responses without objection to Plaintiff within 10 days hereof.

TENTATIVE RULING: The Court will hear brief argument on when, if ever, and by what method, the subject discovery responses were served upon Plaintiff, and whether the same were verified.

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 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).)

Plaintiff is pro se and alleges her sanctions should be granted in the amount of $540 against Defendant Mel Caoili. Attorney’s fees cannot be awarded to a self-represented litigant. Trope v. Katz (1995) 11 Cal. 4^th 274, 279-282. However, as Plaintiff was required to bring this Motion by virtue of Defendant’s late (or still non-existent) discovery responses, the Court awards Costs to Plaintiff/movant in the amount of $150.00, to be paid by Defendant to Plaintiff within 30 days.

MISCELLANEOUS
Opposition says there are three motions to compel however only two are on the Court calendar. Opposition then suggests the motions be placed together on a date to please the court as they concern identical issues. There are two motions for 12-16-2022. The third that Defendant refers to is set for 12-23-2022. (Oppo. p. 2.) This issue was not timely placed before the Court.

MOTION 2

TENTATIVE RULING – MOTION TO COMPEL RESPONSES, REQUESTS FOR PRODUCTION

Moving Party: Plaintiff, Sanda Oswald
Responding Party: Defendant, Mel Caoili

Opposition submitted; no Reply submitted. [It is unclear how/where Opposition and Opposition Declaration was served to Plaintiff. The proof of service states it was hand served on counsel electronically, but the POS doesn’t state the electronic address. Further, the POS states the Opposition papers were served by mail, and there could be an issue with the mailing address as noted in the Analysis section below.]

RELIEF REQUESTED¿

Plaintiff, Sanda Oswald moves the Court for an order compelling Defendant Mel Caoili to provide written, verified responses to requests for production of documents, with document production, without objections as set forth herein, and for an order of sanctions against Defendant Mel Caoili in the amount of $540.00 for their failure to provide responses to the requests for production of documents.

This motion is brought pursuant to CCP §2023.010 and 2031.300 and is brought by reason of the failure of Defendant Mel Caoili to provide any responses to the requests for production of documents.

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).)

ANALYSIS
Here, Plaintiff served Requests for Production, Set One, to Defendant Mel Caoili on September 2, 2022, via U.S. Mail. Plaintiff does not state when the responses would have been due by or explain how Defendant’s responses were not served within 30 days after service of the requests for production. However, since the instant RPDs were propounded on September 2, 2022, via U.S. Mail, and since Defendant stated that verified responses were served on 10/9/2022, the responses appear to be late. The instant motion itself was filed on 10/10/2022 and served via U.S. Mail, and at the time of filing the instant motion on 10/10/2022, Plaintiff alleged she had not received responses yet. Whether or not Plaintiff received Defendant’s responses by the time Plaintiff filed the instant motion is difficult to determine. Defendant’s Opposition states responses were sent on 10/9/2022 via email, which would indicate that Plaintiff filed this motion on 10/10/2022 even though Plaintiff received responses on 10/9/2022.

However, it is difficult to determine if Plaintiff had received these responses by 10/9/2022 for two reasons.

The first is that even though Defendant’s declaration states the responses were served by email on 10/9/2022, Defendant’s proof of service for the responses to the RPDs is ambiguous – it is not clear if the responses were served on 10/9/2022 via mail or via email. If these responses were served via mail, then Plaintiff likely had not received the responses in the mail at the time of filing the instant motion on 10/10/2022.

If Plaintiff did not receive the responses at the proper address, then Defendant is compelled to provide responses under oath, without objection to Plaintiff within 10 days hereof.

TENTATIVE RULING: See Tentative Ruling, supra.

Sanctions
Except as provided in subdivision (d), 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 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. (CCP §2031.300(c).)

The Court again awards Costs to Plaintiff from Defendant of $150.00 on this Motion.