Judge Holly J. Fujie, Case 21STCV27498 2023-04-24 Tentative Ruling

RESPONDING PARTY: Defendants 91 Enterprise, LLC; Asher Elimelech; and Gilad Erlich (collectively, “Defendants”)

The Court has considered the moving and opposition papers. No reply papers were filed. Any reply papers were required to have been filed and served within five court days of the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).[1]

This action arises out of an employment relationship. The currently operative first amended complaint (the “FAC”) alleges: (1) failure to pay minimum wage; (2) failure to pay overtime compensation; (3) failure to pay wages for missed rest periods; (4) failure to pay wages when due; (5) failure to provide accurate and itemized wage statements; and (6) violation of the Unfair Competition Law.

On February 24, 2023, Plaintiff filed nine motions to compel Defendants’ discovery responses: three motions to compel responses to Requests for Production, Set 1 (the “RFP Motions”); three motions to compel responses to Form Interrogatories, Set 1 (the “FROG Motions”); and three motions to compel responses to Special Interrogatories, Set 1 (the “SPROG Motions”) (collectively, the “Motions”).

Under CCP section 2030.290, subdivision (b), when a party directs interrogatories towards a party and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP § 2030.290, subd. (b).) The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906.)

Where there has been no timely response to a demand for inspection, copying, testing or sampling, the demanding party may seek an order compelling a response. (CCP § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (CCP § 2031.300, subd. (a).)

Plaintiff propounded the discovery requests at issue in the Motions on September 28, 2022. (Declaration of Charmaine L. Huntting (“Huntting Decl.”) ¶ 2.) As of the date the Motions were filed, and despite an extension that had been afforded to them, Defendants had not served any responses. (Huntting Decl. ¶ 6.) Defendants provide evidence that they served documents and written responses between March 3, 2023 and March 31, 2023. (See Declaration of Benjamin Davidson (“Davidson Decl.”) ¶ 6.) Defendants do not dispute Plaintiff’s entitlement to monetary sanctions but dispute the reasonableness of the amount of Plaintiff’s total request.

As Defendants have provided responses, the Motions are MOOT insofar as they seek to compel responses.

Plaintiff seeks $1,505 in monetary sanctions in connection to each Motion. This amount represents: (1) one hour drafting the moving papers at an hourly rate of $495 per hour; (2) an anticipated one hour attending the hearing; and (3) a $60 filing fee. (Huntting Decl. ¶¶ 7-8.)

The Court exercises its discretion and awards the reasonable sum of $5,490, which represents one hour drafting each Motion at a rate of $495 per hour, one hour to prepare for the hearing collectively and the $60 filing fee incurred for each Motion.) (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.) This amount is to be paid within 20 days of the date of this order.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The Court exercises its discretion and has considered Defendants’ opposition papers, notwithstanding their late filing under CCP section 1005, subdivision (b).