Judge Douglas W. Stern, Case 21STCV00914 2022-08-23 Tentative Ruling

Judge: Douglas W. Stern, Case: 21STCV00914, Date: 2022-08-23 Tentative Ruling

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Case Number: 21STCV00914 Hearing Date: August 23, 2022 Dept: 52

Tentative Ruling:

Defendant NGL Logistics, LLC’s Motions to: 1. Compel Responses to Interrogatories; 2. Compel Responses to Requests for Production; and 3. Deem Matters Specified in Request for Admissions, Set One, Admitted

Interrogatories and Requests for Production

Defendant NGL Logistics, LLC moves to compel plaintiff Ernesto Jauregui to respond to special interrogatories, form interrogatories – employment, form interrogatories – general, and requests for production, set one.

When a party fails to timely respond to interrogatories or demands for inspection, the requesting party may move for an order compelling responses. (CCP §§ 2030.290(b) [interrogatories]; 2031.300(b) [demands for inspection].) Failure to timely respond waives any objections. (CCP §§ 2030.290(a); 2031.300(a).)

Defendant propounded these discovery requests on February 28, 2022. (Borkenheim Decls., ¶ 2.) Defendant granted plaintiff two extensions to respond. (Id., ¶¶ 5-6.) After the extensions, plaintiff’s deadline to respond was April 22, 2022. (Id., ¶ 6.) Defendant filed these motions on June 29, 2022. Plaintiff had not served any verified responses as of that date. (Id., ¶ 10.)

In his oppositions to defendant’s motions, plaintiff concedes not timely responding. Relying on CCP § 473(b), plaintiff argues the motions should be denied because his failure to respond resulted from mistake, inadvertence, and excusable neglect. Despite repeated attempts, plaintiff’s counsel was unable to get in touch with plaintiff from March 10, 2022, to August 1, 2022. (Ujkic Decl., ¶¶ 1-25.) Plaintiff’s counsel has located plaintiff “but ha[s] not yet been able to contact or communicate with him directly.” (Id., ¶ 26.) In addition, plaintiff’s counsel failed to calendar the April 22, 2022, deadline to respond to defendant’s discovery requests. (Salazar Decl., ¶ 5; Ujkic Decl., ¶ 8.)

Code of Civil Procedure section 473(b) does not apply. That subdivision permits courts to “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him” due to his or his attorney’s mistake, inadvertence, surprise, or neglect. Plaintiff cites no authority providing that section 473(b) applies to a failure to timely respond to discovery. Generally, the “sole remedy for relief from waiver in the context of discovery is contained within the provisions of the [Discovery] Act,” and a party “cannot rely upon the provisions of section 473.” (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274–275.) Defendant is an entitled to an order compelling plaintiff to respond to its discovery requests.

Request for Admissions

Defendant NGL Logistics, LLC moves for an order deeming the truth of matters specified in request for admissions, set one, admitted.

When a party fails to respond to requests for admission, the requesting 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. (CCP § 2033.280(b).) Failure to timely respond to requests for admission also waives any objection. (CCP § 2033.280(a).)

As with the other discovery requests, plaintiff failed to timely respond. Plaintiff again relies on CCP § 473(b) for relief. The Discovery Act “supersedes section 473 as the avenue to obtain default relief in a situation of failure to respond to admissions requests.” (St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 852, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12.)

The Discovery Act specifically provides for relief from an order deeming matters admitted. “A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.” (CCP § 2033.300(a).) “The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” (CCP § 2033.300(b).)

An order deeming matters admitted is mandatory “unless [the court] 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).) Plaintiff has not served a proposed responses to the requests for admission. An order deeming the matters admitted is therefore mandatory.

Sanctions

Failing to respond to an authorized method of discovery is a misuse of the discovery process subject to monetary sanctions. (CCP § 2023.010(d).) For interrogatories and demands for inspection, sanctions are mandatory unless the responding party acted with substantial justification or sanctions would otherwise be unjust under the circumstances. (CCP § 2030.290(c) [interrogatories]; § 2031.300(c) [demands for inspection].) For requests for admission, sanctions are mandatory—with no exception for substantial justification or other circumstances. (CCP § 2033.280(c).)

The court finds plaintiff did not act with substantial justification and sanctions are just under the circumstances. Plaintiff’s reasons for not timely responding are insufficient. Plaintiff chose to bring this action. Plaintiff has a duty to respond to discovery requests. Defendant granted plaintiff two extensions, then waited another two months before filing these three motions. Plaintiff had ample time to respond. It is appropriate that plaintiff face consequences for failing to respond to discovery for so long.

Defendant NGL Logistics, LLC moves for sanctions of $1,720 on its motion to compel interrogatory responses, $1,305 on its motion to compel responses to requests for production, and $2,047 on its motion to deem matters admitted. In addition to the $60 filing fee for each motion, defendant seeks attorney fees as follows:

(1) Interrogatories: 2.0 hours drafting the motion at $415 hourly and 2.0 hours at $415 to draft the reply and prepare for and attend the hearing;

(2) Requests for production: 1.0 hours drafting the motion at $415 hourly and 2.0 hours at $415 to draft the reply and prepare for and attend the hearing.; and

(3) Request for admissions: 2.8 hours at $265 hourly and 1.0 hours at $415 hourly to draft the motion and 2.0 hours at $415 hourly to draft the reply and prepare for and attend the hearing.

On the motion to compel interrogatory responses, the court finds defendant reasonably incurred 2.25 hours of attorney fees at $415 hourly, plus the $60 filing fee, for a total of $993.75.

On the motion to compel responses to requests for production, the court finds defendant reasonably incurred 1.75 hours of attorney fees at $415 hourly, plus the $60 filing fee, for a total of $786.25.

Finally, on the motion to deem matters admitted, the court finds defendant reasonably incurred 1.5 hours of attorney fees at $265 hourly and 1.5 hours of attorney fees at $415 hourly, plus the $60 filing fee, for a total of $1,080.

Disposition

Defendant NGL Logistics, LLC’s motion to compel plaintiff Ernesto Jauregui to respond to interrogatories is granted. Plaintiff Ernesto Jauregui is ordered to serve verified responses without objections within 40 days to defendant’s special interrogatories, form interrogatories – employment, and form interrogatories – general, set one. Plaintiff Ernesto Jauregui is ordered to pay defendant NGL Logistics, LLC $993.75 in sanctions within 40 days.

Defendant NGL Logistics, LLC’s motion to compel plaintiff Ernesto Jauregui to respond to requests for production is granted. Plaintiff Ernesto Jauregui is ordered to serve verified responses without objections within 40 days to defendant’s requests for production, set one. Plaintiff Ernesto Jauregui is ordered to pay defendant NGL Logistics, LLC $786.25 in sanctions within 40 days.

Defendant NGL Logistics, LLC’s motion to deem the truth of the matters specified in request for admissions, set one, admitted is granted. The truth of the matters specified in defendant NGL Logistics, LLC’s request for admissions, set one, is hereby deemed admitted. Plaintiff Ernesto Jauregui is ordered to pay defendant NGL Logistics, LLC $1,080 in sanctions within 40 days.