Judge: Frank M. Tavelman, Case: 22BBCV00512, Date: 2023-02-17 Tentative Ruling

Case Number: 22BBCV00512    Hearing Date: February 17, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTIONS TO COMPEL DISCOVERY RESPONSE

ALLEGATIONS: 

On July 13, 2022 GKGF, LLC (“Plaintiff”) filed an action against JoJos California Family Restaurants, LLC (“JoJos”) and Coco’s Restaurants, LLC (“Coco’s”) (collectively “Defendants”) for alleged non-payment of commercial rent. The Complaint states a cause of action against each defendant (1) breach of contract guaranty and (2) account stated.

 Plaintiff’s two motions seeks to compel a response from JoJos, and from Coco’s. In each of these motions Plaintiff moves for orders to compel responses to Plaintiff’s Request for Production of Documents (Set One) and Form Interrogatories (Set One). Plaintiff also moves to deem admitted the truth of matters in Plaintiff’s Request for Admissions (“RFA”).

Plaintiff requests the court grant sanctions in the amount of $5,695.25 against each defendant separately, for necessitating these motions.

HISTORY: 

Plaintiff filed both motions to compel on January 18, 2023. No opposition was filed.

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests the court take judicial notice of the Complaint in the action pursuant to Evid. Code § 452(d). Evid. Code § 452(d) provides that courts may take judicial notice of records of any court of this state. Plaintiff requests that judicial notice be taken of the complaint in this matter but does not brief any reason that the Court should exercise its discretion to do so in this instance. As such, the Court declines to take judicial notice of the complaint as it appears unnecessary for the underlying motions.

ANALYSIS: 

1. LEGAL STANDARD 

A party must respond within 30 days after service of interrogatories and requests for production of documents. (C.C.P. §§ 2030.260(a), 2031.260(a).) If a party fails to do so, the requesting party may seek an order compelling response to the discovery. (C.C.P. §§ 2030.290(b), 2031.300(b).) The noncomplying party also waives the right to make any objections, including one based on privilege or work-product protection. (C.C.P. §§ 2030.290(a); 2031.300(a).)  

A party must respond to a request for admissions within 30 days after service. (C.C.P. § 2033.250(a).) If a party fails to timely respond within 30 days to requests for admission, the propounding party may seek an order deeming the Requests for Admission admitted. (C.C.P. § 2033.280.) An untimely responding party waives all objections, including privilege, unless they subsequently serve responses in substantial compliance with the Civil Discovery Act, and the party demonstrates that their failure is the result of mistake, inadvertence, or excusable neglect. (C.C.P. §§ 2030.290(a); 2033.280(a).) For untimely responses to Requests for Admission, unless the responding party serves code compliant responses to the hearing, the Court shall deem the Requests for Admission admitted. (C.C.P. § 2033.280(c).)

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).) Misuse of the discovery process includes failing to respond to an authorized method of discovery.  (CCP §2023.010(d).

The Court shall impose monetary sanctions for failing 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. (Ibid.)

CCP § 2023.040 requires that a request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.  The Court notes that the Plaintiff has met this notice requirement.

1. MERITS

    

Request to Compel Responses & Deem RFA Admitted

Plaintiff submitted evidence it propounded its first set of Form Interrogatories, Requests for the Production of Documents, and Requests for Admissions on JoJo’s on September 22, 2022, via email and mail to JoJo’s counsel. (Muse-Fischer Decl. at ¶ 4.) Plaintiff submitted evidence that it received no responses to the request as of time of filing, while responses were due as per C.C.P. § 2030.260 on October 22, 2022. (Ibid. at ¶ 9.) Plaintiff submitted that it contacted JoJo’s counsel on several occasions and has received no response. (Ibid. at ¶¶ 7-8).                          

As to defendant-Coco’s, Plaintiff submitted evidence it propounded its first set of Form Interrogatories, Requests for the Production of Documents, and Requests for Admissions on Coco’s on September 22, 2022, via email and mail to Coco’s counsel. (Muse-Fischer Decl. at ¶ 4.) Plaintiff submitted evidence that it received no responses to the request as of time of filing, while responses were due as per C.C.P. § 2030.260 on October 22, 2022. (Ibid. at ¶ 9.) Plaintiff contacted Coco’s counsel on several occasions and has received no response. (Ibid. at ¶¶ 7-8).

As of February 14, 2022, Defendant has not rendered responses to any of Plaintiff’s motions. Defendant did not file any opposition to these motions within nine days of the hearing as per C.C.P. § 1005(b). No extension request was made as per C.C.P. § 2030.260(a).

Based on the foregoing, Plaintiff’s unopposed motions to compel Defendant’s initial response to Form Interrogatories, Requests for the Production of Documents, and request for Documents (are granted. Plaintiff’s unopposed motion to deem admitted facts contained in Request for Admissions is also granted.

Sanctions

As to the 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 and 2031.290.) As such, any monetary sanctions granted are within the discretionary power of the Court as per C.C.P. § 2030.290. The Court may grant requested sanctions where a party has filed a motion to compel, and the other party fails to file an opposition. (California Rules of Court, Rule 3.1348(a).)  Additionally, 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).) Here, Plaintiff has prepared and filed two motions to compel and deem RFA matters admitted, while JoJo’s and Coco’s have rendered no opposition.  The motions appear to be meritorious. 

The court awards sanctions to Plaintiff with respect to the two motions to compel and the requests to deem matter admitted in accordance with the billing provided by Plaintiff’s counsel. (Muse-Fischer Decl. Exh. 7.). Although sanctions requested are significantly higher, the Court has reviewed the billing sheets and as such total sanctions are granted in the amount of $5, 192.50 at the current billing rates set forth in the declarations set forth in the motion. plus $500 in estimated fees for anticipated appearance at the February 17, 2023, hearing ($5,192.50 + 500 = $ 5,692.50). This sanction is imposed jointly and severally on each defendant.  The Court has determined joint and several liability for sanctions as the time and cost for the sanctions motion against each defendant alone would have justified this expense.   The Plaintiff was able to efficiently file motions as the issues concerning one defendant applied as to both.  The additional fees estimated by Plaintiff’s attorney in preparing a reply for each motion is not present in the above calculation given that no oppositions were filed. Sanctions shall be due within 30 days of this ruling.

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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 

GKGF, LLC’s Motions to Compel Discovery and Deem Matters in Request for Admissions Admitted came on regularly for hearing on February 17, 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: 

THE MOTIONS TO COMPEL ANSWERS TO FORM INTERROGATORIES ARE GRANTED.

THE MOTIONS TO COMPEL RESPONSES, WITHOUT OBJECTIONS, TO REQUEST FOR PRODUCTION OF DOCUMENTS ARE GRANTED.

THE MOTIONS TO DEEM RFA MATTERS ADMITTED ARE GRANTED.

SANCTIONS ARE AWARDED FOR PLAINTIFF AGAINST JOJOS AND COCOS  IN THE AMOUNT OF$5,692.50, JOINTLY AND SEVERALLY.  SANCTIONS TO BE PAID WITHIN 30 DAYS OF NOTICE OF THIS RULING.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF SHALL GIVE NOTICE OF THIS RULING.

IT IS SO ORDERED. 

DATE:  February 17, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles