Judge Jill Feeney, Case 20STCV45897 2023-03-08 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

The Court imposes sanctions totaling $1,620 jointly and severally against Plaintiff and Plaintiff’s Counsel of Record. These sanctions are due within 15 days after the date of this order.

This is an action for premises liability arising from a trip and fall incident which took place in June 2019. Plaintiff Valena Mitchell filed her Complaint against Pickford Investment Group, LLC on December 1, 2020.

Defendant propounded its second set of SROGs and RPDs on Plaintiff on June 9, 2022. Defendants argue that Plaintiff provided discovery responses on September 8, 2022 which contained objections and were not verified.

Plaintiff argues that her responses were not timely because the requests were not properly served. Additionally, Plaintiff argues that she did serve code compliant responses, though late.

Defendant argues that orders compelling Plaintiff’s responses are still appropriate because Plaintiff still included objections in her discovery requests, failed to produce documents, and failed to provide verifications. Defendant also argues that it served the requests at the correct address. Additionally, Defendant argues that Plaintiff’s signature on her verifications did not comply with Cal. Rules of Court, Rule 2.257.

Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (Code Civ. Proc. section 2030.260, subd. (a).)

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc section 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that needs be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

A party waives its objections to a discovery request when it does not serve a timely response to the request. (Code Civ. Proc. 2030.290(a)) Even if objections do not need to be verified, objections will be waived if the responding party “fails to file any response within the statutory time period.” Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 658.

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc. § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc. § 2031.300, subd. (a).) Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

Unverified discovery responses are tantamount to no response at all, and are subject to a motion to compel responses (rather than a motion to compel further responses). (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 635-36.) However, objections to interrogatories and demands for production are not required to be verified because “objections are legal conclusions interposed by counsel, not factual assertions by a party.” (Blue Ridge Insurance Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345.)

A court may not award monetary sanctions under Code Civ. Proc. §§2023.010 and 2023.030 standing alone or read together. (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 500.) Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290(c), 2031.300(c)).) Sanctions are mandatory in connection with motions to deem requests for admissions admitted if a party to whom the requests for admissions have been directed failed to serve a timely response to the request for admission. (Code Civ. Proc., §2033.280(c).)

Defendant moves to compel Plaintiff’s responses to its second set of SROGs, and RPDs. The Court notes that Plaintiff’s opposition was not timely. Nevertheless, the Court will consider Plaintiff’s opposition.

Defendant’s counsel testifies that he propounded written discovery on Plaintiff on June 9, 2022. (Feldman Decl., ¶3.) On September 7, 2022, after receiving no response, Defendant’s counsel sent meet and confer correspondence inquiring after the overdue responses. (Id., ¶4.) Plaintiff provided discovery responses on September 8, 2022 without responsive documents. (Id., ¶5.) On October 7, 2022, Defendant’s counsel sent meet and confer correspondence detailing deficiencies with Plaintiff’s responses, including Plaintiff’s use of objections, which were waived because Plaintiff failed to provide timely responses. (Id., ¶6.)

Plaintiff’s counsel testifies in an unsigned declaration that the discovery requests were not properly served because they were electronically served on info@dufourlawpc.com. (Dufour Decl., ¶4.) Plaintiff’s counsel argues that on September 9, 2022, he served code-compliant responses to Defendant’s discovery requests. (Id., ¶5.) Plaintiff’s counsel again served code-compliant supplemental responses on January 24, 2023. (Id., ¶6.)

Plaintiff’s counsel’s argument that the discovery requests were not properly served is without merit. Plaintiff’s notice of change of address dated October 3, 2022 lists info@ducourlawpc.com as Plaintiff’s counsel’s email address. Additionally, the requests were served at both mrd@dufourlawpc.com and jb@dufourlawpc.com. Thus, Defendant’s discovery requests were properly served.

Plaintiff’s discovery responses consist of a mix of objections and substantive responses. Defendant disputes the validity of Plaintiff’s verifications. There were no verifications attached to the initial responses served in September 2022. Plaintiff served verifications on January 15, 2023 with her amended responses. The signatures on these verifications appear to be typed. Plaintiff served new verifications on February 24, 2023. Defendant argues that the signatures do not comply with Cal. Rules of Court, Rule 2.257.

Cal. Rules of Court, Rule 2.257 provides that electronically filed documents that must provide a signature of any person under penalty of perjury are deemed to have been signed by that person provided that:

a. The declarant has signed the document using an electronic signature and declares under penalty of perjury under the laws of the state of California that the information submitted is true and correct. If the declarant is not the electronic filer, the electronic signature must be unique to the declarant, capable of verification, under the sole control of the declarant, and linked to data in such a manner that if the data are changed, the electronic signature is invalidated; or

b. The declarant, before filing, has physically signed a printed form of the document. By electronically filing the document, the electronic filer certifies that the original, signed document is available for inspection and copying at the request of the court or any other party.

Here, Plaintiff’s verifications in January 2023 did not comply with Rule 2.257 because they were typed signatures not capable of verification or linked to data. Plaintiff’s responses were electronically filed by her counsel and not Plaintiff herself, meaning the verifications may not be deemed signed by Plaintiff.

Defendant points out deficiencies with Plaintiff’s new verifications served February 24, 2023. The verifications do not contain DocuSign’s signature panel tag, an envelope ID ribbon and a DocuSign date stamp. (Feldman Reply Decl., ¶5.) Although the verifications were executed on different dates, all four verifications have the same DocuSign ID number. (Id.) In light of these deficiencies, the Court finds that Plaintiff’s signatures on her verifications are not valid. Plaintiff must serve verifications in compliance with Cal. Rules of Court, rule 2.257.

Defendant’s counsel requests $2,310 in sanctions per motion against Plaintiff and Plaintiff’s Counsel of Record for ten hours of attorney time at a rate of $225 and filing fees. The requests are excessive since the two motions are substantially similar. The Court awards $1,620 for six hours of attorney time and filing fees.