Department 30, Spring Street Courthouse

January 9, 2023

21STCV19979

-Motion to Compel Defendant Francisco Rivas’ Responses to Form Interrogatories (Set One)

-Motion to Compel Defendant Francisco Rivas’ Responses to Special Interrogatories (Set One)

-Motion to Compel Defendant Francisco Rivas’ Responses to Request for Production (Set One)

DECISION 

All the motions are denied.

Defendant Rivas’ request for sanctions is granted. Sanctions in the amount of $675 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 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 negligence arising from a dog attack which took place in May 2019. Plaintiff Natividad Felix Jose filed her Complaint against Defendants Francisco Rivas and Sandra Amador on May 27, 2021.

Plaintiff filed the instant motions to compel Defendant Francisco Rivas’s responses to Form Interrogatories (“FROGs”), Special Interrogatories (“SROGs”), and Requests for Production (“RPDs”) on November 21, 2022.

Moving Arguments

Plaintiff propounded discovery requests on August 18, 2022 and received responses consisting entirely of objections on November 3, 2022. Plaintiff moves to compel Rivas to serve full and complete answers.

Opposing Arguments

Rivas’s counsel argues that she already served responses consisting entirely of objections on November 3, 2022 after Plaintiff granted an extension of time to November 3, 2022. Plaintiff asked Rivas’s counsel to serve the objections and waive the IDC requirement if she did not have contact with Rivas. Rivas’s counsel argues that this motion should have been a motion to compel further, and that Plaintiff is attempting to circumvent the IDC requirement. Plaintiff also requests sanctions. 

Reply Arguments

None.

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. 

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).) 

Plaintiff moves to compel Defendant Rivas’s responses to SROGs, FROGs, and RPDs. 

Plaintiff supports her motion with a declaration from counsel. Plaintiff first propounded written discovery on August 18, 2022. (Ducey Declaration , ¶3.) On November 3, 2022, Rivas served unverified responses consisting entirely of objections (Id., ¶3.) To date, Rivas has not served substantive responses to Plaintiff’s discovery requests. (Id., ¶5.)

Rivas’s counsel testifies that Plaintiff’s counsel granted extensions of time to respond through November 3, 2022. (Ducey Decl., ¶5.) On November 3, 2022, Rivas’s counsel requested a further extension of time to respond. (Id., ¶6.) Plaintiff’s counsel requested that Defendant’s counsel serve the objections if she does not have contact with Rivas and waive the IDC requirement. (Id.) Rivas’s counsel served responses consisting entirely of objections on the same day. (Id., ¶7.)

Because Rivas’s counsel served responses to Plaintiff’s discovery requests by the parties’ agreed deadline of November 3, 2022, Rivas has responded to the discovery requests. Although Plaintiff’s counsel states the responses are unverified, objections do not need to be verified. Thus, Rivas served timely responses to Plaintiff’s discovery requests. If Plaintiff finds the responses deficient, Plaintiff must schedule an IDC and file a motion to compel further discovery.

Discovery sanctions may not be imposed under Section 2023.030, even together with Section 2023.010, absent another provision of the Discovery Act that authorizes the imposition of sanctions. (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 500.) Sanctions for with respect to the interrogatories and the request for production are only authorized against a party who unsuccessfully makes or opposes a motion to compel responses. (See Code of Civil Procedure Sections 2030.290(c) and 2031.300(c)). 

Here, sanctions are mandatory because Plaintiff unsuccessfully made a motion to compel responses to discovery when she should have made a motion to compel further. Because Plaintiff attempted to waive the IDC requirement, it appears Plaintiff was aware that the appropriate motion was a motion to compel further. Thus, Plaintiff did not act with substantial justification in filing these motions. Rivas’s counsel seeks sanctions for each motion.

Because the oppositions were substantially the same and no replies were required, the Court grants Rivas sanctions in the amount of $675 ($225 per hour x three hours) total for all three motions.