Judge: Gregory Keosian, Case: 20STCV34135, Date: 2023-01-11 Tentative Ruling

Case Number: 20STCV34135    Hearing Date: January 11, 2023    Dept: 61

Defendants David S. Sardy and Kira M. Sardy’s Motions to Compel Further Responses to Requests for Admission and Requests for Production from Plaintiff James Arend II are DENIED as to the requests for admission, and GRANTED as to Requests for Production No. . 3, 11, 17, 18, and 22.

I.       MOTIONS TO COMPEL FURTHER

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.”  (Code Civ. Proc., § 2030.010(a).) If a propounding party is not satisfied with the response served by a responding party, the former may move the court to compel further interrogatory responses.  (Code Civ. Proc., § 2030.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)  The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general.  (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)

“A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

A motion to compel further responses to requests for admissions may be made on the grounds that an answer is incomplete or evasive, or an objection is without merit. (Code Civ. Proc. § 2033.290, subd. (a)(1)–(2).)

Defendants David and Kira Sardy (Defendants) move to compel further responses to requests for admission and requests for production served upon Plaintiff James Arend II (Plaintiff). The requests at issue are Requests for Admission No. 12, 16, and 24, and Requests for Production No. 3, 11, 17, 18, and 22.

The requests for admission asked Plaintiff to admit that he submitted no request for extra compensation while the relevant construction work was pending, that he made no attempt at mediation prior to bringing this action, and that he was served with a copy of the notice of completion (NOC) before April 15, 2020. (Separate Statement.) Plaintiff responded to Request No. 16 — that related to mediation — with a statement that he lacked information to either admit or deny the request, but offered only objections to the others.

The requests for production sought documents supporting Plaintiff’s answers to requests for admission, documents relating to any requests for additional money made by Plaintiff, communications with design professionals related to the property, documents related to payments received, and documents identifying the dates in which Plaintiff performed work on the property. Plaintiff responded only with objections to Request No. 3, and provided statements of compliance with respect to the other requests — but with citations, according to Defendants, to the entirety of Plaintiff’s document production, rather than to any specific documents as being responsive to the particular request, as required under Code of Civil Procedure § 2031.280, subd. (a).

Plaintiff in opposition contends that the motions are untimely, as the agreed deadline for motions to compel was September 30, 2022, and the motions were served shortly after midnight on October 1, 2022. (Opposition at pp. 4–5.)

The motions were indeed served 20 minutes late. The time for serving and filing a motion to compel further is “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing.” (Code Civ. Proc. §§ 2031.310, subd. (c); 2033.290, subd. (c).) Untimely service of such motions “renders the court without authority to rule on motions to compel other than to deny them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The relevant discovery responses were served on June 3, 2022, and further responses were served for some discovery on August 12, 2022 (Sire Decl. ¶¶ 4, 8.) After meeting and conferring, the parties agreed that September 30, 2022, would be the deadline to serve motions to compel. (Navarette Decl. ¶ 6, Exh. F.) But Defendants served the motions by email at 12:18 and 12:20 a.m. on October 1, 2022. (Navarette Decl. Exh. G.) The motions are thus untimely.

However, Defendants in reply make a persuasive claim to relief under Code of Civil Procedure § 473, subd. (b), for adverse orders entered by mistake or excusable neglect. Defendants’ counsel declares that preparations of the motions were delayed by Plaintiff’s failure to deliver electronic copies of the relevant responses, despite assuring Defendants’ that such responses would be provided “shortly.” (Sire Decl. Exh. 21; Supp. Sire Decl. ¶ 3.) The necessary use of hard copies delayed preparation of the motions, but the motions were completed and attempts were made to file and serve them on the date in question. (Supp. Sire Decl. ¶¶ 3–4.) But server connection issues required Defendants’ counsel to submit the files to attorney service from his office rather than his home, and various attempts to timely serve and file the motions were rejected due to file size. (Supp. Sire Decl. ¶¶ 3–5.) This account of timely completion and attempts to serve is corroborated by the filing date of admissions motion, which is listed in the court file as being September 30, 2022, at 11:49 p.m. Thus Defendants have demonstrated that their delay was the product of excusable neglect within the meaning of section 473, subd. (b).[1]

However, no further responses are warranted as to the requests for admission that are at issue. Defendants acknowledge that Plaintiff has remedied the faulty original responses by providing straightforward denials two weeks before the opposition was filed. (Reply at pp. 5–6.) Although Defendants contend that Plaintiff has not supplemented his response to Form Interrogatory No. 326.1, which requires the responding party to state facts and evidence supporting their responses to requests for admission, that interrogatory is not at issue in the motions before the court. The motion is therefore DENIED as to the requests for admission.

Further responses are warranted as the requests for production, however, because the requests are supported by good cause, and Plaintiff’s responses and objections are deficient. Request No. 3 seeks documents that support Plaintiff’s responses to requests for admission. Plaintiff argues that this request is overbroad, suggesting that such a request ought to be made separately for each request for admission. (Oppo. Separate Statement at pp. 3–4.) But if Plaintiff thus precisely understands the universe of documents sought by the request, and the request seeks no more than what is supported by good cause, the only benefit to such individuated requests would be further delay of these proceedings. Nor can Plaintiff plausibly claim that its obligation to produce documents is answered by its response to Form Interrogatory No. 326.1, which is an interrogatory and therefore does not seek production of any documents.

Plaintiff next argues that the remaining requests — those seeking documents related to requests for additional time or money, related to communications with design professionals, related to payments received for the work at issue, and documents that identify the dates work was performed — are so overbroad that he was within his rights to cite the entirety of his document production as responsive. (Separate Statement at pp. 4–16.) Plaintiff only reaches this position by a deliberately strained interpretation of the words “relating to” which he perceives to absolve him of his obligation to identify what documents are responsive to what request under Code of Civil Procedure § 2031.280. This is improper when a more reasonable interpretation is available, and is, in any event, also flatly incorrect as to Request No. 22, which does not use the “relating to” language that Plaintiff finds so offensive.

Accordingly, the motion is GRANTED as to Requests for Production No. . 3, 11, 17, 18, and 22.

II.    SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories, requests for production of documents, or requests for admission, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)

Defendants seek $9,225.00 in sanctions against Plaintiff and his counsel, representing 25.5 hours of attorney work at $370 per hour, plus $180 in three filing fees of $60 each. (Sire Decl. ¶ 17.) Plaintiff in turn seeks $1,524.50 in connection with each motion, for a total of $3,049.00. (Opposition at p. 7.)

No sanctions are appropriate. Defendants’ motions were tardily served and are heard here by dint of discretionary relief under Code of Civil Procedure § 473, subd. (b). Defendants’ motion has been denied as to the requests for admissions, being rendered moot by Plaintiff’s provision of belated supplemental responses. And though Plaintiff must provide further responses to requests for production, Defendants’ request for sanctions, amounting to more than $9,000.00, contemplates fees incurred in preparing and filing three motions, rather than the two under consideration here. (Sire Decl. Caption, ¶ 17.)

No sanctions are awarded.