Judge Gregory Keosian, Case 21STCV03392 2023-02-17 Tentative Ruling

Judge: Gregory Keosian, Case: 21STCV03392, Date: 2023-02-17 Tentative Ruling

Case Number: 21STCV03392 Hearing Date: February 17, 2023 Dept: 61

Plaintiff Note E-Filed, Inc.’s Motions to Compel and Deem Admitted against Defendant Newton Isaac are GRANTED. No sanctions are awarded.

I. MOTION TO COMPEL & DEEM ADMITTED

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 party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Likewise, “[a]ny party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (Code Civ. Proc., § 2033.010.) If a party fails to serve a timely response to requests for admissions, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction” (Code Civ. Proc., § 2033.280 subd. (b).)

A party who fails to timely respond to requests for admission waives all objections to the requests. (Code Civ. Proc. § 2033.280, subd. (a).)

Plaintiff Note E-Filed, Inc. (Plaintiff) moves to compel responses from Defendant Newton Isaac (Defendant) and to deem matters against him. The discovery was served on October 17, 2022, with a due date of November 21, 2022. (Miller Decl. ¶¶ 2–3.) Despite offers of reciprocal extensions of time to respond and to bring motions on the discovery, no responses were given before or after the due-date. (Miller Decl. ¶ 4.)

Defendant in opposition contends that the discovery at issue was served a week after Defendant’s counsel was granted an order relieving him from representation, and that he informed Plaintiff that responses would be forthcoming if Plaintiff gave him time to hire an attorney. (Isaac Decl. ¶¶ 2–5.) Defendant has since retained counsel, and served verified responses on February 3, 2023. (Yu Decl. ¶ 7.)

Plaintiff in reply argues that he February 3 responses are not code-compliant because they contain objections which have been waived. (Reply at pp. 4–5.)

Plaintiff is correct that the responses served on February 3, 2023, contain objections which have been waived for tardy service under Code of Civil Procedure §§ 2030.290, 2031.300, and 2033.280. (Yu Decl. Exh. E.) Although Defendant objects that Plaintiff seeks trade-secret discovery without describing the secret with reasonable particularity under Code of Civil Proceudre § 2019.210, objections based on the failure to describe the trade secret at issue have been waived by tardy service. (Opposition at pp. 3–4.)Thus unless objection-free responses to the discovery are served by the hearing on these motions, the motions to compel and deem admitted shall be GRANTED.

II. SANCTIONS.

The prevailing party on a motion to compel is generally entitled to monetary sanctions, unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, 2031.300.) Sanctions are also mandatory against a party whose failure to serve responses to requests for admission makes the motion necessary. (Code Civ. Proc. § 2033.280, subd. (c).)

Plaintiff seeks a total of $1,512.00 in sanctions, representing 5.1 hours of attorney work at $260 per hour plus, three $62 filing fees. (Miller Decl. ¶¶ 5–6.) Sanctions here are not appropriate, however. Plaintiff served the discovery at issue a week after the withdrawal of Defendant’s counsel was judicially approved, and declined to grant an extension to allow for the service of responses until after Defendant retained counsel. Although Plaintiff contends that Defendant refused to grant a reciprocal extension of time in which to bring motions to compel, no such reciprocity was needed, since there is no time-limit in which to compel responses that have not been provided. (See Code Civ. Proc. §§ 2030.290; 2031.300; 2033.280.) Accordingly, no sanctions are awarded.