Judge David A. Rosen, Case Number: 22GDCV00477, Date: 2023-08-04 Tentative Ruling

Judge: David A. Rosen, Case: 22GDCV00477, Date: 2023-08-04 Tentative Ruling

Case Number: 22GDCV00477 Hearing Date: August 4, 2023 Dept: E

Hearing Date: 08/04/2023 – 8:30am
Case No. 22GDCV00477
Trial Date: 10/23/2023
Case Name: LORRAINE MARIE CARUSO v. ALMA VICTORIA SIMPSON, an individual, and DOES 1-10

TENTATIVE RULING – COMPEL RESPONSES RPD

BACKGROUND
Plaintiff, Lorraine Marie Caruso, filed a Complaint against Defendant, Alma Victoria Simpson, on 08/02/2022 alleging three causes of action: (1) Breach of Contract, (2) Common Count – Money Lent, and (3) Financial Elder Abuse.

RELIEF REQUESTED¿
Plaintiff, Lorraine Marie Caruso, moves the Court for an order compelling Defendant, Alma Victoria Simpson, to respond to Plaintiff’s Request for Production of Documents, Set One.

Defendant also moves for an order that Defendant, Alma Victoria Simpson and her attorney of record, Mason Yost, pay a monetary sanction to the moving party, in the sum of $1,072.50, for the reasonable costs and attorneys fees incurred by the moving party in connection with this motion.

Procedural
16/21 Day Lapse (CCP §12c and §1005(b): Yes - “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (CCP §1005(b).) The motion was timely filed and served.

Proof of Service Timely Filed (CRC, Rule 3.1300): Yes
Correct Address (CCP §1013, §1013a): Yes

Moving Party: Plaintiff, Lorraine Marie Caruso

Responding Party: No Opposition submitted by Defendant

Moving Papers: Notice/Memo/Persoff Decl./Exhibits A-C/Proof of Service – filed 5/8/2023 and served on 5/8/2023 via mail and email.

Proposed Order filed 7/12/2023 and served electronically and by mail on 7/12/2023

Opposition Papers: No Opposition

Reply: No Reply

LEGAL STANDARD – COMPEL RESPONSES RPD
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).)

ANALYSIS
On February 7, 2023, Plaintiff served Request for Production of Documents, Set One, on Defendant’s counsel. (Ex. A.) When no responses were received, Plaintiff’s counsel sent Defendant’s counsel an email on March 21, 2023 stating that the responses are overdue, the right to object is waived, and documents were to be produced on March 17, 2023 but none were received. (Ex. B.) In this email, Plaintiff’s counsel also asked for full and complete answers to request for production of documents by March 28, 2023, otherwise a motion to compel and request for sanctions would be sought. (Ex. B.) On April 17, 2023, Defendant’s counsel emailed Plaintiff’s counsel stating he was finalizing responses with his client and that they should be complete and to Plaintiff’s counsel by the end of the week. (Ex. C.) On May 1, 2023, Plaintiff’s counsel sent another email to Defendant’s counsel informing him that he had not received responses and was left no option but to file a motion to compel. (Ex. C.)

Here, since Plaintiff’s counsel has not received responses at the time of filing this motion and signing his declaration on May 8, 2023, and since the interrogatories were served on February 7, 2023, more than 30 days has passed.

TENTATIVE RULING
Plaintiff’s motion to compel responses to Request for Production of Documents, Set One, is GRANTED. Objections have been waived. Defendant is ordered to provide complete code compliant responses, under oath, and to produce the applicable documents and things, within 20 days.

Sanctions
In relevant part, 2031.300(c) states as follows:

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 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).)

Plaintiff argues that Defendant’s counsel was aware of the discovery being served, agreed to provide responses, and yet has not provided responses, thus Plaintiff argues there was a willful failure to respond to the discovery.

Plaintiff moves for an order that Defendant and her attorney of record, Mason Yost, pay a monetary sanction to the moving party in the sum of $1,072.50. Plaintiff’s counsel requested sanctions as follows: (1) An hourly rate of $375.00; (2) Seven tenths of an hour to prepare the instant motion; (3) Two hours for appearance in court on this motion; and (4) $60.00 for the filing fee of the motion.

Plaintiff’s request for sanctions is granted in the reasonable amount of $195.00, to be paid by defendant or her counsel, jointly and severally, to plaintiff on or before August 28, 2023.