Judge: Frank M. Tavelman, Case: 20STCV20848, Date: 2023-04-28 Tentative Ruling

Case Number: 20STCV20848    Hearing Date: April 28, 2023    Dept: A

LOS
ANGELES SUPERIOR COURT

NORTH
CENTRAL DISTRICT - BURBANK

DEPARTMENT
A

MOTIONS
TO COMPEL DISCOVERY RESPONSES & DEEM RFA MATTERS ADMITTED

Asha Dusbabek
(Plaintiff”) filed suit against Rentokil North America, Inc. (“Rentokil”),
Western Exterminator Company (“Western”), and True Heat Solutions (“True Heat”)
(collectively “Defendants”). Plaintiff alleges Defendants were negligent in
treating her property for pests, causing her eventual injury from pesticides.
On September 9, 2021, Plaintiff filed her Third Amended Complaint (“TAC”). The
TAC contains causes of action for (1) Negligence, (2) Breach of Express
Warranty, and (3) Negligent Misrepresentation. 

Rentokil and now
moves to compel Plaintiff’s responses to its (1) First Supplemental
Interrogatories and (2) First Supplemental Requests for Production of
Documents.

Western moves to
compel Plaintiff’s responses to its (1) First Supplemental Interrogatories, (2)
Requests for Production of Documents, and (3) Special Interrogatories (Set
One).

Plaintiff requests an
order deeming Requests for Admissions (“RFA”) matters admitted as to both
Western and Rentokil.  

HISTORY: 

On March
29, 2023, Rentokil and Western both filed their motions to compel responses. On
April 10, 2023, Plaintiff filed her oppositions to each motion. Neither
Rentokil nor Western filed replies. 

On
February 16, 2023, Plaintiff filed her motions to deem RFA matters admitted. On
March 6, 2023, Rentokil and Western filed their oppositions. Plaintiff did not
file a reply.

RELIEF REQUESTED:

Rentokil requests the Court issue an
order compelling responses to its (1) First Supplemental Interrogatories and (2)
First Supplemental Requests for Production of Documents.

Western requests the Court issue an
order compelling responses to its (1) First Supplemental Interrogatories, (2)
Requests for Production of Documents, and (3) Special Interrogatories (Set One).

Rentokil and Western both request the
Court order sanctions against Defendant in the amount
of $865.65 for each motion to compel.

Plaintiff requests the
Court order sanctions against Rentokil, Western, and their Counsel Manning
& Kass Ellrod, Ramirez, Trester, LLP in the amount of $1,200 for each
motion to deem RFA matters admitted.

ANALYSIS: 

I.               
LEGAL
STANDARD 

If a party
to whom interrogatories are directed fails to serve a timely response, the
propounding party may move for an order compelling response and for a monetary
sanction.  (C.C.P. § 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.  (See Leach v.
Superior Court (1980) 111 Cal. App. 3d 902, 905-906.) 

Where
there has been no timely response to a demand to produce documents, the
demanding party may seek an order compelling a response.  (C.C.P. §
2031.300(b).)  Failure to timely respond waives all objections, including
privilege and work product.  (C.C.P. § 2031.300, (a).)  Thus, unless
the party to whom the demand was directed obtains relief from waiver, they
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. 

If a party fails to respond
to requests for admission in a timely manner, the requesting party may move for
an order that the matters be deemed admitted. (C.C.P. § 2033.280(b) The requesting party’s motion must be
granted by the court unless the party to whom the requests for admission have
been directed has served a proposed response to the requests for admission that
is in substantial compliance with Section 2033.220 prior to the hearing. 
(C.C.P. § 2033.280(c).)  By failing
to timely respond, the party to whom the requests are directed waives any
objection to the requests, including one based on privilege or work
product.  (C.C.P. §
2033.280(a).) 

The 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. (C.C.P. § 2023.030(a).)

The Court shall
impose monetary sanctions 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 that other circumstances make the imposition
of the sanction unjust. (C.C.P. § 2030.290(c).)
The same is true for a motion to compel a response to a demand for the
production of documents. (C.C.P. § 2031.300(c).)

The Court shall
impose monetary sanctions for failure to timely respond to requests for
admission unless the party acted with substantial justification, or the
circumstances render imposition of sanctions unjust. (C.C.P. § 2033.280(c).) The Court must impose a monetary sanction
on the party or attorney whose failure to serve timely Requests for Admission
responses necessitated the motion. (Id.)

II.             
MERITS

Motions to Compel Responses

Rentokil propounded their
First Supplemental Interrogatories and First Supplemental Requests for the
Production of Documents on January 10, 2023, via email to Plaintiff’s counsel.
(Sullivan Decl. Exh. A.) Discovery responses were due on or before February 14,
2023. (Id. ¶ 4.) Rentokil states it has not received responses as of the
filing of its motions.

Likewise, Western
propounded their First Supplemental Interrogatories, Requests for the
Production of Documents, and Special Interrogatories on January 10, 2023, via
email to Plaintiff’s counsel. (Sullivan Decl. Exh. A.) Discovery responses were
due on or before February 14, 2023. (Id. ¶ 4.) Western states it has not
received responses as of the filing of its motions.

Plaintiff asserts she
served answers to each of the discovery requests on February 13, 2023.
(Nemotollahi Decl. ¶ 3, Exh. B.) Plaintiff states the responses were served via
email on counsel for Rentokil and Western and attaches the corresponding proofs
of service and emails. (Id.) Plaintiff asks the Court deny the motions
as frivolous and grant sanctions in the amount of $1,000 for each motion.

Motions to Deem RFA Matters Admitted

Plaintiff propounded her requests for admission
as to Western and Rentokil on January 11, 2023, via email and personal delivery
to Rentokil and Western counsel. (Nemotollahi Decl. ¶ 5, Exh. A.) Responses
were due on or before February 10, 2023. (Id ¶ 6.) Plaintiff states she
has received no responses as of the filing of her motions.

The Court notes the hearing on Plaintiff’s
motions were rescheduled to April 28, 2023. Rentokil and Western assert they
served responses to the RFA before the initial motion date, which was March 17.
Rentokil and Western served answers to the RFA on March 6, 2023. (Sullivan
Decl. ¶ 7.) Rentokil and Western ask the Court deny the motions as moot and
deny sanctions. Rentokil and Western state their failure to render timely
responses was the result of improper calendaring by counsel’s office. (Sullivan
Decl. ¶ 6.)

Sanctions

As concerns motions to compel, the law only requires
sanctions in the event that a party unsuccessfully makes or opposes a motion to
compel a response. (C.C.P. §§ 2031.300 & 2031.290.) As such, any monetary
sanctions granted are within the discretionary power of the Court as per Code
of Civil Procedure § 2030.290. It is customary to grant sanctions where a party
has filed a motion to compel and the other party fails to file an opposition.
(C.R.C. Rule 3.1348(a).) 

Additionally, The Court shall
impose monetary sanctions for failure to timely respond to requests for
admission. (C.C.P. § 2033.280(c).) The
Court must impose a monetary sanction on the party or attorney whose failure to
serve timely Requests for Admission responses necessitated the motion. (Id.)

Here, Rentokil and Western have prepared and
filed a total of five motions to compel discovery responses. Plaintiff has
rendered an opposition to each showing responses were timely served. Sanctions
would be granted against each Rentokil and Western; however, Plaintiff failed
to submit a declaration as to the amount of time spent on the oppositions or
hourly rate. Without such a declaration, the Court declines to issue
sanctions. 

Plaintiff prepared and filed two motions to
deem RFA matters admitted. Rentokil and Western rendered responses before the
hearing date and filed oppositions to both these motions. Rentokil and Western
ask sanctions not be granted in this matter because the calendar mistake
constitutes excusable neglect. The provisions of C.C.P. § 2033.280(c) mandate sanctions even where responses were
rendered before the hearing. Plaintiff requests sanctions in the amount of
$1,200 reflecting two hours of attorney work and two hours for appearance at
the hearing, at an hourly rate of $300 (4 hours x 300 = 1,200). (Nemotollahi
Decl. ¶ 8.) As such the Court awards sanctions to Plaintiff against Rentokil’s and
Western’s counsel in the amount of $1,200. 

--- 

RULING:

In the
event the parties submit on this tentative ruling, or a party requests a signed
order or the court in its discretion elects to sign a formal order, the
following form will be either electronically signed or signed in hard copy and
entered into the court’s records. 

ORDER 

Rentokil North
America, Inc. and Western Exterminator Company’s Motions to Compel Responses to
Discovery and Asha Dusbabek’s Motions to Deem Requests for Admissions Matters
Admitted came on regularly for hearing on April 28,
2023, with appearances/submissions as noted in the minute order for said
hearing, and the court, being fully advised in the premises, did then and there
rule as follows: 

RENTOKIL’S MOTIONS TO COMPEL RESPONSES TO FIRST SUPPLEMENTAL INTERROGATORIES
AND FIRST SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS ARE DENIED AS MOOT. 

WESTERN’S MOTIONS TO COMPEL RESPONSES TO ITS FIRST
SUPPLEMENTAL INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS, AND SPECIAL
INTERROGATORIES (SET ONE) ARE DENIED AS MOOT.

ASHA DUSBABEK’S MOTIONS TO DEEM REQUESTS FOR ADMISSIONS
MATTERS ADMITTED ARE DENIED.

SANCTIONS REGARDING THE MOTIONS TO COMPEL ARE
DENIED AS PLAINTIFF’S COUNSEL FAILED TO FILE A DECLARATION CONCERNING TIME
SPENT AND HOURLY RATE.

SANCTIONS REGARDING THE MOTIONS TO DEEM RFA
MATTERS ADMITTED ARE AWARDED TO ASHA DUSBABEK IN THE AMOUNT OF $1,200 JOINTLY
AND SEVERALLY AGAINST RENTOKIL’S AND WESTERN’S COUNSEL.

IT IS SO
ORDERED. 

DATE: 
April 28, 2023                            _______________________________ 

                                                                   
    F.M.
TAVELMAN, Judge 

Superior Court of California 

County of
Los Angeles