Judge: Elaine Lu, Case: 20STCV09801, Date: 2023-01-23 Tentative Ruling

Case Number: 20STCV09801    Hearing Date: January 23, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On March 11, 2020, plaintiff Francisca Velasquez (“Plaintiff”) filed the instant action against defendants Koko Polosajian (“Polosajian”), Cesar Galvan (“Galvan”), Standard Home Lending, Inc. (“Standard Home Lending”) (collectively “Defendants”), Mark S, Nadel, and Nadel & Associates Profit Sharing Plan & CA TD Investments.  On February 22, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants, Mark S, Nadel, and Nadel & Associates Profit Sharing Plan & CA TD Investments.[1]  The SAC asserts four causes of action for (1) Financial Elder Abuse, (2) Intentional Infliction of Emotional Distress, (3) Fraud, and (4) Breach of Fiduciary Duty.

On December 12, 2022, Defendant Galvan filed the instant motion to compel Plaintiff’s response to Request for Production of Documents, Set One (“RPDs”).  No opposition or reply has been filed.

Time to Respond

Under Code of Civil Procedure section 2031.260 subdivision (a), a party must respond to requests for production of documents within 30 days of service.  However, this time limit is extended if served by mail, overnight delivery, fax, or electronically.  (See CCP §§ 1010.6(a)(4), 1013.)  Failure to timely respond waives all objections including privilege or on the protection of work product.  (See CCP § 2031.300(a).) 

On October 18, 2022, Defendant Galvan propounded the at issue RPDs on Plaintiff by electronic service.  (Lisitsa Decl. ¶ 7, Exh. A.)  Accordingly, Plaintiff had until November 21, 2022 to timely respond to RPDs.[2]  However, Plaintiff failed to timely respond.  (Lisitsa Decl. ¶ 9.)  On November 30, 2022, Defense Counsel emailed Plaintiff’s Counsel about the lack of responses to the RPDs.  (Lisitsa Decl. ¶ 10, Exh. C.)  Plaintiff’s Counsel responded the same day stating that he would look into the lack of RPD responses.  (Lisitsa Decl.¶ 11, Exh. D.)  As of filing the instant motion, Plaintiff has not responded to the RPDs.  (Lisitsa Decl. ¶ 12.) 

Accordingly, as the responses are untimely, Plaintiff has waived all objections.

Motions to Compel

As no responses to the at issue discovery requests have been provided by Plaintiff, Defendant Galvan’s motions to compel responses to the Request for Production of Documents, Set One, from Plaintiff is GRANTED pursuant to Code of Civil Procedure section 2031.300. 

Plaintiff Francisca Velasquez is ordered to serve verified code compliant responses to the Request for Production of Documents, Set One without objections, within thirty (30) days of notice of this order.

Sanctions

Defendant Galvan seeks sanctions of $3,561.65 against Plaintiff and Plaintiff’s Counsel to compensate Defense Counsel in bringing the instant motion.  Specifically, Defendant Galvan states that the sanctions are to compensate Defense Counsel for one hour in preparing the instant motion, two hours responding to any opposition, and two hours appearing at the hearing at $700 an hour and filing fees of $61.65.  (Lisitsa Decl. ¶¶ 15-16.)

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], 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.”  (CCP § 2031.300(c).)  Moreover, the Court finds that Plaintiff’s failure to timely respond to the discovery request is an abuse of discovery.  (CCP § 2023.030(a); Cal. Rules of Court, Rule 3.1348(a).) 

However, the court finds that the total amount requested – $3,561.65 – is unreasonable in view of the totality of the circumstances.  Especially given the simplicity of the instant motion and that no opposition was filed.  The Court finds that $1,511.65 reasonably compensates Defendant Galvan for the reasonable attorney’s fees and costs incurred in bringing this motion.

            Plaintiff Francisca Velasquez and her counsel of record Ralph M. Rios, Esq. are jointly and severally liable and ordered to pay monetary sanctions in the amount of $1,511.65 to Defendant Cesar Galvan by and through counsel, within thirty (30) days of notice of this order. 

Conclusion and ORDER

            Based on the foregoing, Defendant Cesar Galvan’s motion to compel responses to Request for Production of Documents, Set One from Plaintiff Francisca Velasquez and is GRANTED.

Plaintiff Francisca Velasquez is ordered to serve verified code compliant responses to the Request for Production of Documents, Set One without objections, within thirty (30) days of notice of this order.

            Defendant Cesar Galvan’s requests for sanctions are GRANTED AS MODIFIED.

            Plaintiff Francisca Velasquez and her counsel of record Ralph M. Rios, Esq. are jointly and severally liable and ordered to pay monetary sanctions in the amount of $1,511.65 to Defendant Cesar Galvan by and through counsel, within thirty (30) days of notice of this order. 

Moving Party is to give notice and file proof of service of such.

DATED: January 23, 2023                                                     ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court