Judge Douglas W. Stern, Case Number: 23STCV14488, Date: 2023-11-03 Tentative Ruling

Judge: Douglas W. Stern, Case: 23STCV14488, Date: 2023-11-03 Tentative Ruling

Case Number: 23STCV14488 Hearing Date: January 3, 2024 Dept: 68

Lauren Swaim vs. Greystar California, Inc., et al., 23STCV14488

Motion to Compel Responses to Form Interrogatories

Motion to Compel Responses to Requests for Production of Documents

Moving Party – Plaintiff Lauren Swaim

Opposing Party – Defendant Greystar California, Inc.

Moving Parties’ Position

Yes, parties may engage in discovery even when the pleadings are being challenged.

On October 16, 2023, Plaintiff Lauren Swaim (Plaintiff) served Defendant Greystar California, Inc. (Defendant) with Form Interrogatories and Requests for Production of Documents. After Plaintiff gave Defendant an extension, responses were due by December 4, 2023, but no responses were received. (Motions at p. 3.) Plaintiff filed these motions on December 5, 2023. Plaintiff seeks an order compelling responses to the form interrogatories and requests for production. Plaintiff seeks sanctions in the amount of $2,536.65 for the form interrogatories motion and $2,536.65 for the requests for production motion.

Defendant filed an opposition in which it argues that it did not respond to Plaintiff discovery requests because discovery is premature due to Defendant’s pending demurrer to Plaintiff’s First Amended Complaint.

Plaintiff argues in reply that Defendant’s argument about premature discovery is without merit, and there is no authority to support Defendant’s argument.

Analysis

I. Premature Discovery

CCP § 2031.020(b) states that “a plaintiff may make a demand for inspection, copying, testing, or sampling without leave of court at any time that is 10 days after the service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first (emphasis added).”

The code allows a plaintiff to serve discovery at any time that is 10 days after the service of summons on, or appearance by, the relevant party. That is what Plaintiff did in this case. Defendant has cited no authority that supports its claim that discovery cannot be served until after demurrers are resolved. But there is authority rejecting the position taken by Defendant.

“Mattco Forge, Inc. and its president sued Arthur Young & Co. and two of its employees. While Arthur Young's demurrer to Mattco's original complaint was pending, Mattco served a demand for inspection of documents on Arthur Young. Arthur Young responded with blanket objections. Mattco dutifully asked Arthur Young to meet and confer. Arthur Young refused, responding that “it was premature and a complete waste of ... time” to discuss discovery matters until the pleading issues were resolved.” Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1434.

[footnote 3] “Arthur Young's prematurity argument was properly rejected by the trial court. Pleading deficiencies generally do not affect either party's right to conduct discovery (Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 797, 798, 110 Cal.Rptr. 302) and this right (and corresponding obligation to respond) is particularly important to a plaintiff in need of discovery to amend its complaint (Union Mutual Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 12, 145 Cal.Rptr. 316).” Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436.

Plaintiff did not need to wait until after the demurrers are resolved to propound discovery. Plaintiff’s motions to compel are appropriate.

II. Form Interrogatories

The propounding party may move for an order compelling responses and monetary sanctions if a party to whom the interrogatories are directed fails to respond. (CCP §§ 2030.290, 2030.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) Responses to interrogatories are due within thirty days from the date of service of the interrogatories. (CCP §§ 2030.260(a), 2016.050.) The responding party waives any objections to the interrogatories by failing to serve responses in a timely manner. (CCP § 2030.290(a).)

Defendant has failed to respond to Plaintiff’s Form Interrogatories. Plaintiff has moved for an order compelling Defendant’s response to these Interrogatories. The Court grants Plaintiff’s motion to compel responses to the Form Interrogatories.

III. Requests for Production

A propounding party may move to compel responses to requests for production of documents where the responding party fails to provide responses. (CCP § 2031.300.) The responding party must provide responses within thirty days after the demand is served. (CCP § 2031.030(c)(2) & (3).) The responding party waives all objections, including privilege and work product, by failing to timely respond to requests for production of documents. (CCP § 2031.300.)

Defendant has failed to provide responses to Plaintiff’s request for production of documents. Plaintiff has moved for an order compelling production of those documents. The Court grants Plaintiff’s motion to compel responses to the requests for production.

IV. Sanctions

CCP § 2030.290(c) states “the Court shall impose a monetary sanction under Chapter 7 (commencing with § 2033.010) against any party, person or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or the other circumstances make the imposition of the sanction unjust.” Moreover, CCP §2023.030 authorizes the Court to issue sanctions against a party engaging in conduct that is a misuse of the discovery process. Failure to respond to discovery, evasive responses, and objections lacking substantial justification are “misuses of the discovery process.” (CCP § 2023.010, subd. (d)-(f).)

Defendant unsuccessfully opposed Plaintiff’s motions and did so without substantial justification.

Plaintiff has requested sanctions in the amount of $2,536.65 against Defendant for the form interrogatories motion. The amount was based on Plaintiff’s counsel spending a total of 2.5 hours preparing the motion at $550.00 an hour, and an expected 2 hours to draft a reply to Defendant’s opposition and to attend the hearing, plus the $61.65 filing fee. (Rosenweig Decl., ¶ 10.) The amount that Plaintiff has requested appears to be reasonable for this motion.

Plaintiff has requested sanctions in the amount of $2,536.65 against Defendant for the requests for production motion. The amount was based on Plaintiff’s counsel spending a total of 2.5 hours preparing the motion at $550.00 an hour, and an expected 2 hours to draft a reply to Defendant’s opposition and to attend the hearing, plus the $61.65 filing fee. (Rosenweig Decl., ¶ 10.) Because the replies to the two motions were combined and the two motions will be heard at the same hearing, the Court will not add any additional time to the 2.5 hours for this motion. That would be 2.5 hours at $550 an hour, plus $61.65, for a total of $1,436.65 in sanctions for this motion

Plaintiff’s request for sanctions against Defendant is granted in the total amount of $3,973.30 for the two motions.

V. Order

1. Plaintiff’s motion to compel responses to form interrogatories is GRANTED.

2. Plaintiff’s motion to compel responses to requests for production is GRANTED.

3. Defendant is ordered to serve its responses within twenty (20) days of this order.

4. Defendant is ordered to pay sanctions in the total amount of $3,973.30. Defendant is ordered to pay these sanctions to Plaintiff’s counsel within twenty (20) days of this order.