Judge: Deirdre Hill, Case: 22TRCV00525, Date: 2023-01-26 Tentative Ruling

Case Number: 22TRCV00525    Hearing Date: January 26, 2023    Dept: M

Hearing Date:                         January 26, 2023

Moving Parties:                      Plaintiff Sikder Holdings International, Inc.

Responding Party:                  Defendant Ultracor, Inc.

(1)   Motion to Compel Plaintiff to Respond to Form Interrogatories

(2)   Motion to Compel Plaintiff to Respond to Request for Production of Documents

(3)   Motion for Order that Deem Admitted Facts in Requests for Admission, Set One

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

RULING

            The motions are GRANTED. 

Defendant Ultracor, Inc. is ordered to serve responses, without objections, to plaintiff’s Form Interrogatories, Set One and Request for Production of Documents, Set One within 20 days.

The court deems admitted the truth of any matters specified in plaintiff’s Request for Admission, Set One.

Defense counsel Arthur Corona, Esq. is ordered to pay sanctions to plaintiff in the amount of $1,080 in total for all three motions within 30 days.

BACKGROUND

            On June 29, 2022, plaintiffs Sikder Holdings International, Inc., R & R Beverages Group PTE, Ltd, Lisa Haque, and Nasim Sikder filed for (1) breach of contract, (2), (3) breach of fiduciary duty, (4) fraud/concealment, (5) conversion, and (6) declaratory relief.

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

            Plaintiff requests that the court compel defendant Ultracor, Inc. to respond to plaintiff’s initial form interrogatories and requests for production and to deem admitted the facts in plaintiff’s request for admissions.

            Plaintiff contends that on October 19, 2022, plaintiff served Ultracor with the discovery requests electronically on defense counsel Arthur Corona.  Plaintiff asserts that the responses were due by November 22, 2022.  Plaintiff’s counsel did not receive responses by the due date.

            In opposition, defendant argues that the motion should be denied because the discovery requests were improperly served.  Defendant contends that although plaintiff’s attorney emailed defense counsel Arthur Corona with plaintiff’s discovery requests it was only after he received the motions that he searched his spam/junk folders where he located the discovery requests. Defendant asserts that it never expressly consented to accept electronic service, there was no court order authorizing electronic service, and plaintiff did not confirm the email address for electronic service, which is his law clerk.

            In reply, plaintiff argues that it properly served notice electronically as allowed under CCP §1010.6.  Plaintiff contends that defendant’s proper electronic service address is the one its attorney provided to the court and that defense counsel did not inform plaintiff’s counsel as to his law clerk’s email address.  Plaintiff also asserts that plaintiff’s counsel sent an email reminder to defense counsel on November 30, 2022.  The email states, in part:  “Also, Ultracor, Inc.’s responses to our written discovery were due on 11/22.  We have not received any responses.  All objections are waived.  We will move for an order compelling the responses and seek sanctions.”  The motions were not served until December 21, 2022.

            The court rules as follows:  The court finds that plaintiff properly served the discovery requests electronically.

            CCP §1010.6 states, in part:  “(a) A document may be served electronically in an action filed with the court as provided in this section, in accordance with rules adopted pursuant to subdivision (h). . . .”  According to the First Amended General Order dated May 3, 2019, “On January 2, 2019, the Los Angeles County Superior Court mandated electronic filing of all documents filed in Non-Complex Unlimited Civil cases by litigants represented by attorneys.” 

Under Cal. Rules of Court, Rule 2.251, “(a) When a document may be served by mail, express mail, overnight delivery, or fax transmission, the document may be served electronically under Code of Civil Procedure section 1010.6. . . . (c) . . . . (3) Except when personal service is otherwise required by statute or rule, a party or other person that is required to file documents electronically in an action must also serve documents and accept service of documents electronically from all other parties or persons, unless:  (A) The court orders otherwise, or (B) The action includes parties or persons that are not required to file or serve documents electronically . . . . (4) Each party or other person that is required to serve and accept service of documents electronically must provide all other parties or other persons in the action with its electronic service address and must promptly notify all other parties, other persons, and the court of any changes under (g).” 

            Defendant failed to timely serve responses.

Accordingly, the motions are GRANTED.

            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.”

Plaintiff requests $1,060 in sanctions for each motion against defendant and attorney of record Arthur Corona.  The court finds that sanctions are warranted against defense counsel only and that $1,180 ($250/hr. x 4 hrs., $180 filing fees) is a reasonable amount to be incurred in favor of plaintiff in total for the three motions.

Plaintiff is ordered to give notice of this ruling.