Judge Holly J. Fujie, Case 21STCV46218 2023-01-26 Tentative Ruling

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

This action arises out of a former attorney-client relationship. Plaintiff’s complaint (the “Complaint”) alleges: (1) breach of written contract; (2) common count – goods and services rendered; and (3) common count – account stated.

On November 21, 2022, Plaintiff filed four motions concerning discovery propounded on Defendant (collectively, the “Motions”): (1) a motion to compel responses to Form Interrogatories, Set One (the “FROG Motion”); (2) a motion to compel responses to Special Interrogatories, Set One (the “SPROG Motion”); (3) a motion to compel responses to Requests for Production, Set One (the “RFP Motion”); and (4) a motion to deem Requests for Admission, Set One admitted (the “RFA Motion”). The Motions contend that Defendant failed to provide responses to the discovery requests propounded by Plaintiff.

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.)

Under CCP section 2031.300, subdivision (b), 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).)

Under CCP section 2033.280, subdivision (a), where requests for admission are propounded on a party and that party fails to serve a timely response, that party waives any objection to the requests. (CCP § 2033.280, subd. (a).) The 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. (CCP § 2033.280, subd. (b).) The court must grant a motion to have admission requests deemed admitted where responses have not been served prior to the hearing, or, if such responses were served, they were not in substantial compliance with CCP section 2033.220. (CCP § 2033.280, subd. (c).) It is mandatory that the court impose a monetary sanction the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated the motion. (Id.)

On September 28, 2022, Plaintiff served Defendant with the discovery at issue in the Motions. (See Declaration of Jeremy J. Osher (“Osher Decl.”) ¶ 8.) Exhibit 1.) As of the filing date of the Motions, Defendant had not served responses to any of the discovery requests. (Osher Decl. ¶ 10.)

Defendant declares that he never received Plaintiff’s discovery requests. (Declaration of Michael Hakim (“Hakim Decl.”) ¶ 2.) Defendant further declares that he has not consented to receive service by email and that Plaintiff did not attempt to meet and confer before filing the Motions. (Hakim Decl. ¶¶ 3-4.)

The Motions concern Defendant’s failure to produce timely responses; as such, Plaintiff was not required to meet and confer before filing the Motions. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) Further, the Proofs of Service attached to the discovery indicate that Defendant was served with the discovery requests electronically and by mail. In light of the foregoing, the Court GRANTS the Motions. Defendant is ordered to serve responses within 20 days of this order.

Plaintiff additionally seeks monetary sanctions in connection to the Motions.[2] The Court exercises its discretion and awards Plaintiff sanctions in the reasonable amount of $1,406, which represents two hours of work drafting the Motions at a rate of $445 per hour and one hour of work reviewing and revising the Motions at a rate of $645 per hour. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.)

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] On January 17, 2023, Plaintiff filed a notice of non-opposition. Also on January 17, 2023, Defendant filed his opposition (the “Opposition”). The Court exercises its discretion and has considered the Opposition despite its late filing.

[2] Plaintiff seeks $941 in connection to the SPROG Motion, $718.50 in connection to the FROG Motion, $2,251.50 in connection to the RFP Motion, and $1,673 in connection to the RFA Motion. (See Osher Decls. ¶ 16.)