Judge Holly J. Fujie, Case Number: 21STCV36334, Date: 2024-12-10 Tentative Ruling

The Court has considered the moving reply papers. No opposition or reply has been filed.

This action arises from remediation services allegedly provided by Plaintiff after a boat fire that occurred at the marina located at 1970 Taylor Road, Bethel Island, CA 94511, known as Anchor Marina. Plaintiff alleges that Anchor Marina Inc. (“AMI”) failed to pay Patriot’s outstanding invoice of over $400,000 for services rendered. Plaintiff filed this action against AMI on October 1, 2021. On June 28, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”), which named BI Properties, Inc., Kevin Davidson (“Davidson”) and Allen Wagner (“Wagner”) as additional defendants. The FAC asserts causes of action for: 1) Breach of Contract; 2) Common Count: Goods and Services Rendered; 3) Intentional Misrepresentation (Fraud); 4) Promissory Fraud; 5) Negligent Misrepresentation; 6) Fraudulent Inducement; and 7) Violation of Business & Professions Code Section 17200.

On November 1, 2024, Plaintiff filed the instant (1) Motion to Compel Responses to Requests for Production (Set No. 1) from Defendant Kevin Davidson and (2) Motion to Compel Responses to Requests for Production (Set No. 1) from Defendant Allen Wagner (the “Motions”). No opposition has been filed.

Plaintiff has satisfied the meet and confer requirement. (Both Motions, Astarabadi Decl., ¶ 2.)

A motion to compel a response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (Code Civil Procedure (“CCP”), § 2031.310, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)

CCP section 2031.320 subdivision (a) provides that “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.”¿¿

“Unless notice of this motion is given 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, the demanding party waives any right to compel a further response to the demand.”¿ (CCP § 2031.310 subd. (c).)¿¿

Plaintiff propounded Requests for Production (Set No. 1) on Wagner and Davidson on May 28, 2024 via mail. On July 17, 2024, Plaintiff filed six discovery motions, including motions to compel responses to requests for production (Set No. 1) from both Davidson and Wagner. Wagner and Davidson served their responses on September 17, 2024. The responses included objections and a statement that the “[r]esponding party will produce all responsive non-privileged documents in his possession, custody or control.” (Both Motions, Korenaga Decl., Ex. 2.) The matter came for hearing on October 3, 2024. The Court granted the motions and ordered that the objections in the responses be stricken. (10/3/2024 Minute Order.)

Plaintiff asserts that, to date, no responsive documents have been produced. Moreover, neither Wagner nor Davidson have opposed the Motions, leaving no evidence before the Court to suggest that Plaintiff is not entitled to the production of the requested documents. Thus, Plaintiff’s Motions are GRANTED.

Except in certain circumstances involving electronic stored information, the court must impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2031.320, subd. (b).)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

Even after a party provides discovery responses, a party can keep its motion on calendar and the court has authority to grant sanctions, even if it denies the motion to compel responses “as essentially unnecessary, in whole or in part.” (Sinaiko, supra, at p. 409.)

Plaintiff requests sanctions for the Motions in the total amount of $4,860, or $2,430 per Motion, based upon counsel’s rate of $540/hour for: (1) 5.0 hours preparing and drafting the Motions and (2) 4.0 hours to review and opposition, draft replies, and prepare for and attend the hearing.

Because no opposition or reply has been filed and the Motions are largely duplicative of each other, a 4.0 hour reduction is appropriate. Thus, the request for sanctions is GRANTED in the reduced amount of $2,700, allocated as $1,350 per Motion.

Plaintiff’s Motion to Compel Responses to Requests for Production (Set No. 1) from Defendant Kevin Davidson is GRANTED. Davidson is ordered to produce the documents, electronically stored information, and/or things requested within 20 days of this Order. Davidson is also ordered to pay $1,350 in sanctions to Plaintiff within 20 days of this Order.

Plaintiff’s Motion to Compel Responses to Requests for Production (Set No. 1) from Defendant Allen Wagner is GRANTED. Wagner is ordered to produce the documents, electronically stored information, and/or things requested within 20 days of this ruling. Wagner is also ordered to pay $1,350 in sanctions to Plaintiff within 20 days of this Order.

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.

Hon. Holly J. Fujie

Judge of the Superior Court