Judge: Deirdre Hill, Case: 21TRCV00762, Date: 2023-02-01 Tentative Ruling

Case Number: 21TRCV00762    Hearing Date: February 1, 2023    Dept: M

Hearing Date:                         February 1, 2023

Moving Parties:                      Defendant Laz Parking California, LLC

Responding Party:                  Plaintiff First Transit, Inc.

Motion to Compel Responses and Documents, Deem Admissions, to Written Discovery

            The court considered the moving, opposition, and reply papers.

RULING

            The motions are MOOT.  Defendant is ordered to pay additional filing fees in the amount of $120.

BACKGROUND

On October 19, 2021, plaintiff First Transit, Inc. filed a complaint against LAZ Parking California, LLC for (1) breach of contract, (2) quantum meruit, and (3) common counts.

On January 11, 2022, plaintiff filed a FAC for (1) breach of contract and (2) common counts.

On March 2, 2022, plaintiff filed a SAC for (1) breach of contract and (2) common counts.

On May 10, 2022, the court overruled defendant’s demurrer to the SAC.

LEGAL AUTHORITY

Interrogatories

            If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.  CCP §2030.290(b).  The statute contains no time limit for a motion to compel where no responses have been served.  All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906. 

            Request for Production of Documents

            Where there has been no timely response to a CCP §2031.010 demand, the demanding party must seek an order compelling a response.  CCP §2031.300.  Failure to timely respond waives all objections, including privilege and work product.  So, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded.  There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.  Where the motion seeks only a response to the inspection demand, no showing of "good cause" is required.  Weil & Brown, Civil Procedure Before Trial, 8:1487. 

            Request for Admissions

Pursuant to CCP §2033.280(b), a 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).  “Failure to timely respond to RFA does not result in automatic admissions.  Rather, the propounder of the RFA must ‘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 §2023.010 et seq.”  Civ. Proc. Before Trial, 8:1370, citing CCP § 2033.280(b).  The court “shall” grant the motion to deem RFA admitted, “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).

DISCUSSION

            Defendant LAZ Parking California, LLC requests that the court compel plaintiff First Transit, Inc. to respond to defendant’s initial form interrogatories and requests for production and to deem admitted the facts in the requests for admissions. 

            The court notes that the motion is procedurally improper as it combines three motions into one.  The court thus orders defendant to pay additional filing costs in the amount of $120.

            Defendant contends that on July 29, 2022, defendant served plaintiff with written discovery.  Responses were due August 29, 2022.  According to the meet and confer correspondence, defense counsel provided plaintiff with multiple extensions to respond.  On August 25, 2022, plaintiff’s counsel requested a 30-day extension to respond, to September 29, 2022, to which defense counsel agreed.  On September 28, 2022, plaintiff’s counsel emailed defense counsel confirming another extension to October 20, 2022.  On October 20, 2022, plaintiff’s counsel sent an email to defense counsel confirming a further extension to November 3, 2022.  On November 3, 2022, plaintiff’s counsel sent another email to defense counsel confirming an extension to November 17, 2022.  On November 17, 2022, plaintiff’s counsel sent an email to defense counsel confirming an extension to December 1, 2022 and that “[i]t is understood that this is the final extension and that no further extensions will be granted.”

            On December 1, 2022, plaintiff served only objections.

            Defendant contends that despite plaintiff’s counsel’s “promises to provide discovery responses and documents, no responses or documents were ever provided,” arguing that unverified objections only do not constitute a response.

            In opposition, plaintiff argues that it timely responded on December 1, 2022, the extension date agreed upon by counsel, and that objections only were a proper response.

            In reply, defendant argues that no verified substantive responses nor documents were ever served, only “boilerplate objections which should be waived.” 

The court rules as follows:  The court finds that defendant properly served discovery requests and that plaintiff timely served responses (objections only) in compliance with CCP §2030.210 (interrogatories), CCP §2031.210 (demand for documents), and CCP §2033.210 (admissions).  Under CCP §2030.210, “(a) The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:  (1) An answer containing the information sought to be discovered.  . . . (3) An objection to the particular interrogatory.”  Plaintiff did not waive its objections as counsel agreed on the extensions to respond.  Defendant cites to Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 636, which holds that unverified discovery responses “are tantamount to no responses at all.”  That case is inapplicable because in Appleton, the responding party served objections and an unverified answer to the discovery requests.  Appleton does not stand for the proposition that unverified objection-only responses are equivalent to no response.  Here, plaintiff served only objections, which need not be verified.  “The party to whom the [request] is directed shall sign the response under oath unless the response contains only objections.”  CCP §§2033.250(a), 2031.250(a), 2033.240(a).

            Accordingly, the motion is deemed MOOT. 

            Sanctions

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.”  Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “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), 2031.300(c).

It is mandatory that the court impose a monetary sanction on the party or attorney whose failure to serve a timely response to requests for admission necessitated a motion to deem them admitted.  CCP § 2033.280(c).

Cal. Rules of Court, Rule 3.1348(a) states:  “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.”

The court finds that sanctions are not warranted because plaintiff timely served responses. 

Moving party is ordered to give notice of this ruling.