Judge: Deirdre Hill, Case: 22TRCV01340, Date: 2023-02-23 Tentative Ruling

Case Number: 22TRCV01340    Hearing Date: February 23, 2023    Dept: M

Hearing Date:                         February 23, 2023

Moving Parties:                      Plaintiff Carolyn Hemker

Responding Party:                  None

(1)   Motion to Compel Discovery Responses from Jennifer Benitez

(2)   Motion to Compel Discovery Responses from Sade Benitez

            The court considered the moving papers.  No opposition was filed.

RULING

The motions are GRANTED.

Defendants Jennifer Benitez and Sade Benitez are ordered to serve on plaintiff Carolyn Hemker verified responses without objections to plaintiff’s Form Interrogatories – Unlawful Detainer, Set One, Special Interrogatories, Set One, and Requests for Admission, Set One, within 5 days.

Defendants Jennifer Benitez and Sade Benitez are ordered (1) to serve on plaintiff a verified response without objections to plaintiff’s Request for Production of Documents, Set One, and (2) to produce all documents and things in defendant’s possession, custody, or control, which are responsive to plaintiff’s request, within 5 days.

Each defendant is ordered to pay monetary sanctions to plaintiff in the amount of $585, within 30 days.

BACKGROUND

On November 28, 2022, plaintiff Carolyn Hemker filed an unlawful detainer complaint against defendants Jennifer Benitez, Jasiah Goshay, and Sade Benitez based on a three-day notice to pay rent or quit.

Jury trial is set for March 1, 2023.

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.  Thus, 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.

Requests 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.”  Weil & Brown, 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).

Unlawful detainer discovery

Under CCP §2030.260, “(b) Notwithstanding subdivision (a), in an unlawful detainer action . . . , the party to whom the interrogatories are propounded shall have at least five days from the date of service of the demand to respond . . . .”  See CCP §2031.260(b) for requests for documents and §2033.250 for requests for admission.

Under CCP §1170.8, “[i]n any action under this chapter, a discovery motion may be made at any time upon giving five day’s notice.”

DISCUSSION

            Plaintiff Carolyn Hemker requests that the court compel defendants Jennifer Benitez and Sade Benitez to respond to plaintiff’s initial Form Interrogatories – Unlawful Detainer, Special Interrogatories, Requests for Production of Documents, and Requests for Admission.

Plaintiff asserts that the written discovery was served upon defendants on January 20, 2023, by email and mail and that they failed to respond by the due date of January 25, 2023.  On January 27, 2023, plaintiff’s counsel sent a meet and confer letter to defendants requesting responses without objections no later than January 30, 2023.  Defendants requested that the written discovery be sent again, which plaintiff’s counsel did on January 30.  To date, plaintiff’s counsel has not received responses.

The court notes that plaintiff requests that, in the alternative, the court strike defendants’ answer.  As defendants have not failed to comply with a court order, terminating sanctions are not proper.

The court finds that the discovery requests were properly served, and that defendants failed to serve responses or produce documents.

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).

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 $1641.65 ($395/hr. x 4 hrs.) in monetary sanctions against each defendant.

The court finds that sanctions are warranted against each defendant and that $585 ($350/hr. x 1.5 hrs., $60 filing fee) is a reasonable amount to be awarded against each defendant.

            Plaintiff is ordered to give notice of the ruling.