Department 30, Spring Street Courthouse

July 25, 2022

21STCV19752

Motions to Compel Written Response to Demand for Document Production, Responses to Interrogatories, and Monetary Sanctions filed by Defendant Thome Waterproofing Co., Inc. (unopposed)

Having reviewed the stipulation filed by the parties and the docket (See Stipulation filed 07/13/22 signed 07/22/2022),   the Court makes the following scheduling orders.

Trial is continued to August 1, 2023 at 8:30 a.m. in Department 30.

FSC is continued to July 18, 2023 at 10:00 a.m. in Department 30.

Motion cutoff date, discovery cutoff date, expert exchange date and all other dates are to comport with a trial date of August 21, 2023.

To the extent that the parties wish to participate in mediation, they are ordered to do so prior to the Final Status Conference date.

The parties should not anticipate any further trial continuances. This is a firm trial date and the parties should be prepared and ready to proceed with trial on 08/01/2023. 

As the Court notes that Defendant Jilbert Gharghani was served on 06/23/2021 and no answer/responsive pleading has yet been filed, on the Court's own motion the Court orders:
 

An OSC Re: Dismissal for Failure to Enter Default against Defendant Jilbert Gharghani is set for October 20, 2022 at 8:30 a.m.
(The Court notes that the request for default filed on May 12, 2022 was rejected on May 13, 2022 and up to this date not yet resubmitted.)

With respect to the Discovery Motions:

Both discovery motions are granted.

Plaintiff is ordered to serve within 20 days after the date of this order verified responses without objections to Defendant Thome’s Special Interrogatories (Set One) and Defendant Thome’s Request for Production of Documents (Set One).

Sanctions in the amount of $1,325 are imposed jointly and severally against Plaintiff and Plaintiff’s counsel of record. Sanctions are due within 20 days after the date of this order.

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

This is an action for subrogation arising out of a water intrusion into the home of Ms. Nancy Wolfson, the Insured of Plaintiff. Plaintiff Safeco Insurance seeks monetary damages for negligence and carelessness against Defendants Jilbert Gharghani dba Jilbert Plumbing, Thome Waterproofing Co., Inc., Golden Estate Management, Inc., and Does 1 through 25. Plaintiff alleges that the water intrusion took place after defendants negligently performed roofing work or other contracted work which damaged Ms. Wolfson’s property and caused the water intrusion.

On May 26, 2021, Plaintiff Safeco filed its complaint seeking damages against Defendants.

On August 9, 2021, Defendant Thome Waterproofing Co., Inc. (“Defendant Thome”) filed its answer.

On April 25, 2022, Defendant Thome filed two motions to compel discovery seeking an order compelling Plaintiff Safeco to provide a verified written response to Defendant Thome’s Demand for Production and initial responses to Defendant Thome’s Special Interrogatories. Defendant Thome also requests monetary sanctions.   

Trial is set for November 23, 2022.

Defendant Thome propounded the Demand for Production and Special Interrogatories, Set One on Plaintiff Safeco on October 15, 2021. On December 3, 2021, Defendant Thome had not received a response and contacted Plaintiff Safeco’s counsel, Mr. Daniel Schmaeling. The parties agreed that Mr. Schmaeling would submit responses without objection after an additional 30 days. On January 4, 2022, Defendant Thome received Plaintiff’s responses to the demand for production. The documents produced were not stamped and not in any order. Defendant Thome argues that the responses were defective because there was no verified written response and because the documents produced were not verified.  

Defendant Thome also argues that Plaintiff Safeco did not produce the claim file pertaining to the insurance claim at the core of its claim.

To date, Defendant Thome has not received any response to Special Interrogatories, Set One.

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. § 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. (CCP § 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. (CCP § 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.) 

 

Under California Code of Civil Procedure section 2023.030, subdivision (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc. § 2023.010.)  

 

Under California Code of Civil Procedure section 2023.040, “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” 

Defendant Thome alleges that Plaintiff’s responses to the Demand for Production were deficient because they were not accompanied by a verified written response and because it was missing the claim file pertaining to the insurance claim at issue. 

Documents produced in response to a demand for production are not required to be verified. (Code Civ. Proc. section 2031.280(a)) However, Code Civ. Proc. section 2031.210(a) requires that a verified statement of compliance to inspection demands must be filed in response to Demands for Production. Additionally, “untimely or unsworn statements are tantamount to no response at all.” (Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914.) (See also 

Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Code Civ. Proc. section 2031.280(a) also requires that the documents produced be identified with the specific request number to which the documents respond.

Here, although Plaintiff Safeco responded to Defendant’s demand by producing documents, the response was significantly defective. Plaintiff’s response did not include the required statement of compliance, nor did it include the required numbering showing indicating which request numbers the documents pertained to. (Pazos Decl., ¶7) Because Plaintiff did not provide the responses as required by statute, it is tantamount to not submitting a reply at all. Accordingly, Defendant’s Motion to Compel Responses to the Demand for Production of Documents is granted.

Defendant Thome’s special interrogatories were properly served. The response was due on November 15, 2021. To date, Plaintiff Safeco has not provided responses to Defendant Thome’s Special Interrogatories. Defendant Thome’s motion as to Special Interrogatories, Set One is granted. 

Defendant Thome requests sanctions against Plaintiff and Plaintiff’s counsel of record in the amount of $3445 total for both motions. Because the motions were relatively simple, essentially identical and unopposed, the Court does not find the amount requested reasonable. The court will impose sanctions totaling $1,325 ($265 per hour x 5 hours).