Judge Jill Feeney, Case 21STCV11793 2022-10-28 Tentative Ruling

Judge: Jill Feeney, Case: 21STCV11793, Date: 2022-10-28 Tentative Ruling

Case Number: 21STCV11793 Hearing Date: October 28, 2022 Dept: 30

Department 30, Spring Street Courthouse

October 28, 2022

21STCV11793

Motion to Compel Responses to Form Interrogatories (Set One) by Defendant Lhullier filed by Plaintiff Bryn Torres Friedenberg

DECISION

The motion is granted. The request for sanctions is denied.

Defendant Lhullier is ordered to serve verified responses without objection to Plaintiff’s Form Interrogatories (Set One) within 30 days after the date of this order.

Moving party is to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

This is an action for strict liability, negligence, and strict liability for an animal with known dangerous propensities arising from a dog attack which took place in January 2019. Plaintiff Bryn Torres Friedenberg filed her Complaint against Defendants Matthew Lhullier and Patricia Rivera on March 26, 2021.

Plaintiff filed the instant motion to compel Defendant Matthew Lhullier to respond to Plaintiff’s form interrogatories (“FROGs”) on September 30, 2022.

Summary

Moving Arguments

Plaintiff originally propounded the first set of Form Interrogatories on Lhullier on April 15, 2022. To date, Lhullier has not responded.

Opposing Arguments

None.

Legal Standard

Compelling Responses to Interrogatories

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.

Discussion

Plaintiff seeks to compel responses to FROGs from Defendant Lhullier.

Here, Plaintiff is entitled to orders compelling Lhullier’s responses to FROGs. Plaintiff’s request is supported by a declaration counsel. Plaintiff propounded FROGs on Lhullier on April 15, 2022. (Shahriari Decl., ¶¶3-4.) Plaintiff’s counsel granted multiple extensions with the final response deadline set for June 10, 2022. (Id., ¶5.) Lhullier failed to respond on that date. (Id.) Plaintiff did not file a motion to compel until now because she believed they were near settlement. (Id., ¶6.) After settlement negotiations broke down, Plaintiff again requested discovery responses by July 29, 2022. (Id.) After Lhullier again failed to provide a response, Plaintiff filed the instant motion. (Id.)

Because Lhullier has served no response to Plaintiff’s FROGs, Plaintiff’s motion is granted.

Plaintiff seeks sanctions citing to Code of Civil Procedure Sections 2023.010(d) and 2031.300.

Section 2031.300 covers requests for production. Section 2030.290 is a similar provision covering interrogatories. The sanctions provided for at Section 2030.290 (c) apply when a party unsuccessfully makes or opposes a motion to compel a response or if a party fails to obey an order compelling answers. Neither circumstance is present here. Discovery sanctions may not be imposed under Section 2023.010, even together with Section 2023.010. (City of Los Angeles v. Pricewaterhouse Coopers ( Court of Appeal, Second District 2022) 2022 WL 12010415.) For these reasons, the request for sanctions is denied.