Judge: Frank M. Tavelman, Case: 222BBCV00813, Date: 2023-05-19 Tentative Ruling

Case Number: 222BBCV00813    Hearing Date: May 19, 2023    Dept: A

MOTION TO COMPEL DISCOVERY RESPONSE

ALLEGATIONS/HISTORY: 

BMBG Investments, LLC ("BMBG") filed suit against Defendant 11 NoHo Owner, LLC (“NoHo”) regarding allegations that NoHo, which owns property adjacent to Plaintiff's property, is trespassing on and causing damage to Plaintiff's property in the process of constructing a new building.

On August 10, 2020, BMBG filed the operative First Amended Complaint (“FAC”), alleging six causes of action: (1) Intentional Trespass; (2) Intentional Trespass of Water; (3) Negligent Trespass; (4) Negligent Trespass of Water; (5) Private Nuisance; and (6) Declaratory Relief.

On December 7, 2021, NoHo filed the operative First Amended Cross-Complaint against BMBG and Focus Builders, Inc. (“Focus”), alleging seven causes of action: (1) Quiet Title; (2) Trespass; (3) Nuisance; (4) Declaratory Relief; (5) Express Contractual Indemnity; (6) Breach of Written Contract; and (7) Declaratory Relief.

On May 18, 2022, Focus filed its Cross-Complaint against Art & Son Construction, Inc. (“Art & Son”), alleging four causes of action for (1) Breach of Written Contract (2) Negligence, (3) Contribution and (4) Implied and Equitable Indemnity.

On April 12, 2023, Focus filed its motion to compel BMBG’s responses to Form Interrogatories. No opposition was filed.

Focus also requests the Court order sanctions against Plaintiff in the amount of $1,060.

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.) 

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 because 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).)

II.                 MERITS

Motions to Compel Responses

Defendant propounded their first set of Form Interrogatories on BMBG’s counsel on December 21, 2022 via email. (Dunn Decl. ¶ 2, Exh. A.) On February 14, 2023, Defendant sent Plaintiff a meet and confer letter, providing until February 28, 2023 to provide responses to the discovery requests. (Id. ¶ 3, Exh. B.) As of the filing of these motions Plaintiff has not served responses to Defendant’s discovery requests. (Id. ¶ 4.)

Based on the foregoing, Focus’ unopposed motion to compel BMBG’s initial response to Form Interrogatories is GRANTED.

Sanctions

As concerns motions to compel, the law only requires sanctions if 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).) 

Here, Focus prepared and filed a motion to compel while BMBG has filed no opposition, which is indicative that their discovery violation was without merit. As such, the Court awards sanctions to Focus with respect to the motion to compel. Sanctions are granted in the amount of $1,060, based on two hours of attorney work in preparing the motion and two hours hour estimated for appearance at the May 19, 2023, hearing at a rate of $250 an hour, plus the filing fee ((250 x 4= 1,000) + 60 = $1,060). (Dunn Decl. ¶ 6.) Sanctions are awarded jointly and severally against BMBG and their counsel John Haushalter.

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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 

Focus Builders, Inc.’s Motion to Compel Responses to Form Interrogatories came on regularly for hearing on May 19, 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: 

FOCUS BUILDERS, INC.’S MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES IS GRANTED.

SANCTIONS ARE AWARDED FOR FOCUS BUILDERS, INC. JOINTLY AND SEVERALLY AGAINST BMBG INVESTMENTS, LLC AND THEIR COUNSEL JOHN HAUSHALTER PAYABLE WITHIN 30 DAYS.

UNLESS ALL PARTIES WAIVE NOTICE, FOCUS BUILDERS, INC. IS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  May 19, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

   Superior Court of California 

       County of Los Angeles