Judge Holly J. Fujie, Case Number: 23STCV20463, Date: 2025-01-23 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.

This action arises from a transaction pertaining to the real property located at 10062 Hillgrove Drive in Beverly Hills, California (the “Subject Property”). On August 25, 2023, plaintiffs Bruce and Jilla Abrams (collectively “Plaintiffs”) filed a complaint (the “Complaint”) against defendants Avant Luxury SFR Fund, LLC (“Avant”) and Wellington Yang (collectively, “Defendants”) alleging causes of action for: (1) breach of contract [count 1]; (2) breach of contract [count 2]; (3) negligence; (4) breach of implied warranty; and (5) fraud.

On October 24, 2024, Mr. Abrams filed the instant: (1) motion to compel further responses to form interrogatories (FIs); (2) motion to compel further responses to special interrogatories (SIs); (3) motion to compel further responses to request for production (RFPs); and (4) motion to deem requests for admissions admitted (RFAs) (collectively, the “Motions”). All four Motions include requests for sanctions as well. The Motions are unopposed.

A motion to compel an initial response can be made on the ground that a party did not serve a timely response to interrogatories or a demand to produce. (Code Civil Procedure “CCP”) §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [demand to produce]; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) The discovering party can also make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (CCP § 2033.280, subd. (b); CCP, § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovering party must make the motion. (CCP § 2033.280, subd. (b).)

(1) Proper service (CCP §§ 2030.080, subd. (a) [interrogatories], 2031.040 [demand to produce]); § 2033.070 [requests for admission])

(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (CCP §§ 2030.260, subds. (a), (b) [interrogatories], 2031.260, subds. (a), (b) [demand to produce] 2033.250, subds. (a), (b) [requests for admission]); and

(3) No timely response. (CCP §§ 2030.290 [interrogatories], 2031.300 [demand to produce] § 2033.280, subd. (b) [requests for admission])

A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (CBS, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19; CCP § 2017.010 [scope of discovery].)

Mr. Abrams served Avant with the FIs, SIs, RFPs and RFAs via e-mail on August 23, 2024. (All Mots., Vivoli Decl. ¶ 2, Ex. 1.) The deadline to respond was 30 days after service, plus two court days for electronic service. (CCP § 1010.6 subd. (a)(3)(B)) Thus, responses were due on September 24, 2024. As of the date of the hearing on these motions, there is no evidence before the Court that Avant has responded to the discovery requests. Thus, the Motions are GRANTED.

The Court must impose monetary sanctions against anyone—party, nonparty, or attorney—who unsuccessfully makes or opposes the motion, unless it finds that the person to be sanctioned acted with substantial justification or other circumstances make the imposition of the sanctions unjust. (CCP §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [demand to produce]; Sinaiko, supra, 148 Cal.App.4th at 404 [interrogatories and demand to produce].)

The Court must award sanctions when a party’s response to request for admissions is untimely, and the discovering party makes a motion to deem the requests admitted. (CCP, § 2033.280, subd. (c); Appleton, supra, 206 Cal.App.3d at 635-636 [sanctions are mandatory].)

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. (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, 148 Cal.App.4th at 409.)

Mr. Abrams requests sanctions for the motion to compel responses to FIs against Avant and Avant’s counsel of record, jointly and severally, in the total amount of $2,440.00 based upon counsel’s rate of $595/hr. for: (1) 3.0 hours to draft the motion; (2) 1.0 hour to draft a reply or notice of non-opposition; (3) 1.0 hour to attend the hearing on the motion; and (4) $60 filing fee. (Mot. to Compel FIs, Vivoli Decl., ¶ 4.)

Mr. Abrams requests sanctions for the motion to compel responses to SIs against Avant and Avant’s counsel of record, jointly and severally, in the total amount of $1,250.00 based upon counsel’s rate of $595/hr. for: (1) 1.0 hour to draft the motion; (2) 1.0 hour to attend the hearing on the motion; and (4) $60 filing fee. (Mot. to Compel SIs, Vivoli Decl., ¶ 4.)

Mr. Abrams requests sanctions for the motion to compel responses to RFPs against Avant and Avant’s counsel of record, jointly and severally, in the total amount of $2,142.50 based upon counsel’s rate of $595/hr. for: (1) 3.5 hours to draft the motion, draft a reply or notice of non-opposition and attend the hearing on the motion; and (2) $60 filing fee. (Mot. to Compel RFPs, Vivoli Decl., ¶ 4.)

Mr. Abrams requests sanctions for the motion to compel responses to RFAs against Avant and Avant’s counsel of record, jointly and severally, in the total amount of $1,845.00 based upon counsel’s rate of $595/hr. for: (1) 3.0 hours to draft the motion, draft a reply or notice of non-opposition and attend the hearing on the motion; and (2) $60 filing fee. (Mot. to Compel RFAs, Vivoli Decl., ¶ 4.)

The Court finds that 3.0 hours is a reasonable amount of time to spend drafting the four Motions. A further reduction is appropriate as no replies or notices of non-opposition were filed and the time allocated for attending the hearings on the Motions is duplicative and excessive, given that all the hearings are scheduled for the same date and time and may be attended remotely. The Court notes as an aside that “notices of non-opposition” are not helpful to the Court and should never be filed. Accordingly, the Court will award sanctions for: (1) 3.0 hours to draft the Motions; (2) .2 hours to attend the hearing on the Motions; and (3) $240 in filing fees. Thus, the requests for sanctions are GRANTED in the total amount of $1,964.00.

The motion to compel responses to FIs, is GRANTED. Avant is ordered to serve full, Code-compliant, verified responses, without objections within 20 days.

The motion to compel responses to SIs, is GRANTED. Avant is ordered to serve full, Code-compliant, verified responses, without objections within 20 days.

The motion to compel responses to RFPs, is GRANTED. Avant is ordered to serve full, Code-compliant, verified responses, without objections within 20 days.

The motion to deem RFAs admitted is GRANTED. The admissions are deemed ADMITTED as truth.

Avant, and Avant’s counsel or record, are ordered to remit sanctions in the total amount of $1,964.00 to Mr. Abrams 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