Judge: David B. Gelfound, Case: 23CHCV00567, Date: 2024-04-17 Tentative Ruling

Case Number: 23CHCV00567    Hearing Date: April 17, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS

Motion filed: 8/3/23

MOVING PARTY: Plaintiffs Melissa Manalang and Alexandre Cazals (“Plaintiffs”)

RESPONDING PARTY: Defendants Marie Ilous and In Action Realtors, Inc. d/b/a Brad Korb Real Estate  

NOTICE: ok

RELIEF REQUESTED: An order from this Court compelling Defendants Marie Ilous and In Action Realtors, Inc. to serve full, responsive, and complete verified responses, without objections to Plaintiffs’ Request for Production, Set One, and imposing monetary sanctions in the amount of $2,425.00.

TENTATIVE RULING: The motion is deemed MOOT. The request for monetary sanctions is GRANTED IN PART.

BACKGROUND

This action arises from a transaction involving real property located at 16061 Devonshire Street, Granada Hills, California 91344 (the “Subject Property”), in which the plaintiff purchasers allege that they have incurred damaged due to the preexisting permitting issues associated with two Accessory Dwelling Units (“ADUs”) on the Subject Property.

On February 28, 2023, Plaintiffs initiated the present action. Subsequently, on March 20, 2023, Plaintiffs filed their operative First Amended Complaint (“FAC”) against Defendants Luis M. Echeverria and Margoth M. Echeverria, individually and as Trustee of the Luis M. Echeverria and Margoth M. Echeverria Revocable Trust; Mari-Elana Case; Marie Ilous, In Action Realtors, Inc.; RD 101 Inc., and Does 1-100, alleging eight causes of action: (1)  Fraud (Failure to Disclose); (2) Breach of Fiduciary Duty; (3) Negligence; (4) Breach of Written Agreement; (5) Breach of Oral Contract; (6) Breach of the Implied Covenant of Good Faith and Fair Dealing; (7) Unjust Enrichment/Quantum Meruit; and (8) Civil Conspiracy. On April 20, 2023, Defendants RD 101 Inc., and Mari-Elana Case filed their Answer to the FAC; on May 16, 2023, Defendants Marie Ilous and In Action Realtors, Inc. filed their Answer; on May 22, 2023, Defendants Luis M. Echeverria and Margoth M. Echeverria, individually and as Trustee of the Luis M. Echeverria and Margoth M. Echeverria Revocable Trust, filed their Answer.

On May 22, 2023, Defendants/Cross-Complainants Luis M. Echeverria and Margoth M. Echeverria, individually and as Trustee of the Luis M. Echeverria and Margoth M. Echeverria Revocable Trust, filed their Cross-Complaint against Defendants/Cross-Defendants Marie Ilous, In Action Realtors, Inc., and Moes 1-50, alleging implied equitable indemnity, comparative indemnity, and declaratory relief.

On August 3, 2023, Plaintiffs filed the instant Motion to Compel Responses from Defendants Marie Ilous and In Action Realtors, Inc. to Plaintiff’s Requests for Production of Documents, Set One.

Subsequently, on November 30, 2023, Defendants Marie Ilous and In Action Realtors, Inc. (the “Opposing Defendants”) filed their Opposition. On January 5, 2024, Plaintiffs replied.

ANALYSIS

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

(a) 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). 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.

(b) The party making the demand may move for an order compelling response to the demand.

(c) 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. If a party then fails to obey the order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2031.300, subds. (a), (b), (c).)

A.    Combined Motions

Multiple motions should not be combined into a single filing.  (See Govt. Code § 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing]; see also Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011) [“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”])

As a preliminary matter, Plaintiffs combined and filed two motions as a single filing. As will be discussed in more detail below, both of Plaintiffs’ motions against Defendants Marie Ilous and In Action Realtors, Inc., are deemed moot, and the only remaining issue is Plaintiffs’ request for monetary sanctions. For considerations of efficiency, the Court finds that these two motions may be joined under this specific condition.

Consequently, the Court will proceed to review the instant Motion.

B.     Motion to Compel

Plaintiffs brought the instant Motion under the authority of Code of Civil Procedure section 2031.300 subdivision (b), which premises that the responding party fails to serve a timely response to a Demand for Production.

Here, the Opposing Defendants argue that they have provided full and complete responses to Plaintiffs’ request for production of documents, without objections, in August 2023. (Agrella Decl., ¶ 9.) Additionally, Plaintiffs have not requested any further responses as the responses provided were complete. (Ibid.) Furthermore, Plaintiffs’ counsel attests that “Defendants provided full, completed and verified responses, without objections, in August 2023,” and that “[h]ence, Plaintiffs seek their fees and costs incurred in bringing the Motion and this Reply Brief, and in appearing at the hearing thereon[.]” (1/5/24 Jackson Decl., ¶ 11.)

Consequently, the Court deems the instant Motion to Compel Responses to be MOOT. The Court will now turn to assess Plaintiffs’ Request for Monetary Sanctions.

C.    Monetary Sanctions

Pursuant to Code of Civil Procedure section 2031.300 subdivision (c), 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.”  (Code Civ. Proc., § 2031.300, subd. (c).) 

Here, the Opposing Defendants’ counsel asserts that he was not aware of Plaintiffs’ two Request for Production of Documents, Set One, (“RPD”), as there were initially served via email for the sender’s email address, “support@voklaw.com,” was blocked by his Outlook server. (Agrella Decl., ¶ 5.) Consequently, the Opposing Defendants argue that his failure to respond was as a result of his inadvertence, mistaken and/or excusable neglect, referencing Code of Civil Procedure section 473. (Ibid.)

The Court notes that the Opposing Defendants’ contention based on Code of Civil Procedure section 473 is premature, as it permits a court to relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her, which is nonexistent at the time the Opposition was filed. However, the Court will consider the Opposing Party’s evidence in determining whether substantial justification exists, in accordance with Code of Civil Procedure section 2031.300 subdivision (c).

Here, even if the Court accepts that the Opposing Defendants were not aware of the email service of the RPDs, it nonetheless does not establish a substantial justification for their untimely responses, as Plaintiffs present evidence that their June 6, 2023, service of the RPDs was made via both U.S. Mail and email. (6/6/23 Proof of Service.) The Opposing Defendants do not argue that the mailed service was affected by inadvertence.

Consequently, the Proof of Service establishes the deadline for responses as July 11, 2023, which the Opposing Defendants failed to meet.

Furthermore, the Opposing Defendants maintain that Plaintiffs’ email dated July 27, 2023, seemed clear to him that an extension was being given, without regard to an obvious typographical error concerning the set due date, which led to his plan to contact Plaintiffs’ counsel on July 31, 2023, to clarify what the intended extension date was. (Agrella Decl., ¶ 8.)

Contrarily, Plaintiffs’ counsel attests that he had sent a separate email to the Opposing Defendants’ counsel on July 17, 2023, regarding the RPDs; however, no responses were received by Plaintiffs before he sent the July 27, 2023, email. (7/28/23 Jackson Decl., ¶¶ 6-7.)

The Court observes the typographical error in the July 27, 2023, email, where a past date, namely July 21, 2023, was set as the new due date under the extension, causing confusion. However, even assuming that such an error justifies the Opposing Defendants’ belief that an extension was granted, it cannot be concluded that it was reasonable for the Opposing Defendants not to provide any responses to either the RPDs or Plaintiffs’ inquiry in their July 17, 2023, email.

Accordingly, the Court concludes that the Opposing Defendants have not established a substantial justification, and a monetary sanction is mandatory.

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the instant Motion is $970.00, calculated at $485.00 per hour for two hours.

            Therefore, the Court GRANTS IN PART the Request for Monetary Sanctions.

CONCLUSION

Plaintiffs’ Motion to Compel Defendant PlayCore’s Further Responses to Demand for Production, Set One, is deemed MOOT.

Plaintiffs’ Request for Monetary Sanctions is GRANTED IN PART.

Defendants Marie Ilous and In Action Realtors, Inc., and their counsel of record, are ordered to pay $970.00 monetary sanctions, joint and severally, to Plaintiffs’ counsel within 10 days.

Moving party is to give notice.