Judge: Frank M. Tavelman, Case: 24NNCV02347, Date: 2025-01-24 Tentative Ruling

Case Number: 24NNCV02347    Hearing Date: January 24, 2025    Dept: A

MOTION TO COMPEL RESPONSES

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Kathleen Clayborn (Plaintiff) brings this action against I Guard Services, Inc., Unified Protective Services, Inc., United Protective Services, Inc. (collectively Defendants). Plaintiff alleges that Defendants’, her former employers, committed several violations of the California Labor Code.

Before the Court are a total of six motions by Plaintiff to compel Defendants’ initial response to nine sets of discovery demands. Plaintiff seeks to compel initial responses to the following discovery demands:

·         Form Interrogatories (Employment) to I Guard Services, Inc., Set One.

·         Form Interrogatories (General) to I Guard Services, Inc., Set One.

·         Request for Production of Documents to I Guard Services, Inc., Set One.

·         Form Interrogatories (Employment) to United Protective Services, Inc., Set One.

·         Form Interrogatories (General) to United Protective Services, Inc., Set One.

·         Request for Production of Documents to United Protective Services, Inc., Set One.

No opposition was filed by any Defendant by the statutory deadline of January 10, 2025. (C.C.P. § 1005.) On January 16, 2025, Defendants each filed an untimely omnibus opposition to the motions. The Court elects to consider the late filed oppositions pursuant to C.R.C. Rule 3.1300(d). These oppositions explain that Defendants have subsequently served responses to each of the outstanding discovery requests at issue. They also dispute that sanctions are warranted given Defendants’ counsel was not aware of the outstanding discovery.

Additionally, on January 16, 2025, Plaintiff filed three supplemental briefs. The Court views these briefs as essentially fulfilling the role of reply papers, but notes that they were not designated so because Plaintiff was not yet aware of the late filed oppositions. In any event, Plaintiff acknowledges receipt of discovery responses and concedes that her request for an order compelling response is moot.  The Court appreciates Plaintiff’s proactive filing of this supplemental information. Plaintiff maintains that sanctions are warranted as these motions were necessary to obtain production.

Given the above circumstances, all that remains for the Court to decide is the propriety of sanctions.

ANALYSIS: 

I.                    LEGAL STANDARD 

Although there are specific sanction provisions for failing to respond to interrogatories or production which results in a motion to compel, all involve wrongfully bringing or opposing the motion to compel.  In this instance the responding party did not oppose the motion, as such, the Court will discuss sanctions pursuant to an abuse of the discovery process.   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).)

II.                 MERITS

Facts

On October 28, 2024, Plaintiff served each of the nine sets of discovery upon Defendants’ counsel via email. (Zadykyan Decl. ¶ 2, Exhs. A, B.) On December 5, 2024, Plaintiff’s counsel emailed to remind Defendants’ counsel that responses were due on December 3, 2024 and stated that they would not proceed with these motions if Defendants served responses by December 11, 2024. (Zadykyan Decl. ¶ 3, Exh. B.) On January 10, 2025, Defendants served their untimely responses and document production. (Badkoubehi Decl. ¶ 3.)

Discussion

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).) For reasons described below, the Court finds the imposition of sanctions are appropriate here. 

Defendants’ counsel states in each opposition that he was, “…not aware that the discovery items were served on [him].” until Plaintiff’s counsel followed up on December 5, 2024. (Badkoubehi Decl. ¶ 3.) This statement is a clear acknowledgement that the discovery was served. Defendants’ counsel does not state whether he replied to Plaintiff’s counsel, only that he could not complete the discovery by the extension date of December 11, 2024. (Badkoubehi Decl. ¶ 2.)

Defendants’ arguments that his counsel was only given five days to serve responses and was not given a two-week extension are unpersuasive. Plaintiff’s December 5, 2023 email is, in and of itself, a one-week extension of Defendants’ statutorily determined deadline. Defendants did not have five days to reply to this discovery, they had 44. Further, Defendants’ counsel attaches no exhibit showing he requested any additional extension. Nor does Defendants’ counsel make any statement as to why he did not notice the initial service of the requests.

Plaintiff seeks sanction in the account of $2,250 per motion for a total of $13,500.  The declaration asserts 12 hours of attorney time.   The Court does not find this reasonable given that the motions averaged six pages in length plus a declaration all of which were nearly identical.   Furthermore, no opposition was filed and argument is unlikely given the lack of opposition.  Given the foregoing, the Court awards sanctions in the amount of $2,160 as against Defendants’ counsel but declines to impose it against Defendants. This amount reflects four hours of attorney work at the stated $450 hourly rate, plus the $60 filing fee for each motion. (Zadykyan Decl. ¶ 7.)

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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 

Kathleen Clayborn Motions to Compel Responses came on regularly for hearing on January 24, 2025, 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: 

PLAINTIFF’S MOTIONS TO COMPEL INITIAL RESPONSES ARE MOOT.

SANCTIONS ARE GRANTED AS AGAINST DEFENDANTS’ COUNSEL IN THE AMOUNT OF $2,160.

SANCTIONS ARE TO BE PAID WITHIN 30 DAYS.

PLAINTIFF TO PROVIDE NOTICE.

IT IS SO ORDERED.