Judge: Holly J. Fujie, Case: 22STCV09532, Date: 2023-03-08 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 22STCV09532    Hearing Date: March 8, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff

RESPONDING PARTY: Defendant In and Out Tire LLC (“Defendant”)

The Court has considered the moving, opposition and reply papers.

BACKGROUND

Plaintiff’s complaint (the “Complaint”) alleges: (1) breach of contract; (2) fraud; (3) violation of the covenant of good faith and fair dealing; and (4) promissory estoppel.

On January 26, 2023, Plaintiff filed: (1) a motion for an order deeming its Requests for Admissions, Set One admitted against Defendant (the “RFA Motion”); (2) a motion to compel Defendant’s responses to Plaintiff’s Form Interrogatories, Set One (the “FROG Motion”); (3) a motion to compel Defendant’s responses to Special Interrogatories, Set One (the “SPROG Motion”); and (4) a motion to compel responses to Plaintiff’s Demand for Production, Set One (the “RFP Motion”) (collectively, the “Motions”).

DISCUSSION

Under California Code of Civil Procedure (“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.; see Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31-32.)

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).)  

Unverified responses are tantamount to no responses at all.  (Sappleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

Plaintiff propounded the relevant sets of discovery on Defendant on August 31, 2022.  (See Declaration of Frank Chica (“Chica Decl.”) ¶ 5.)[1]  Defendant provided unverified responses on October 13, 2022.  (Chica Decl. ¶ 6.)  As of the filing of the motion, Defendant had not provided verified responses.  (See Chica Decl. ¶¶ 13-14.) 

            In its opposition (the “Opposition”), Defendant provides evidence that it has now provided verified responses.  (See Declaration of Stuart L. Leviton (“Leviton Decl.”) ¶ 3.)  Leviton substituted in as Defendant’s counsel on December 14, 2022 and did not receive any meet and confer communications from Plaintiff’s counsel before the Motions were filed.  (See id.)

            Because Defendant submitted verifications before the hearing, the Court DENIES the Motions insofar as they seek to compel responses or deem Defendant’s responses admitted.  To the extent that Defendant seeks relief from waiver of objections, the proper procedure for Defendant to seek relief is by motion.

Monetary Sanctions

            In connection to the Motions, Plaintiff requests $3,078.80 in monetary sanctions against Defendant in connection to the Motion.  This amount represents: (1) seven hours researching and drafting the Motions at a rate of $300 per hour $650 per hour; (2) an anticipated two hours reviewing the Opposition and preparing reply papers; (3) an anticipated hour attending the hearing; (4) $61.65 in filing fees; and (5) $17.15 in attorney services fees.  (Chica Decl. ¶ 17.) 

            The Court exercises its discretion and awards Plaintiff sanctions in the reasonable amount of $661.65, which represents two hours drafting the Motions at a rate of $300 per hour and a $61.65 filing fee.  (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.)  Defendant is ordered to pay this amount within 20 days of this order.

 Moving party is ordered to give notice of this ruling.

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.

         Dated this 8th day of March 2023