Judge Jill Feeney, Case 22STCV11309 2023-01-23 Tentative Ruling

-Motion to Compel Plaintiff’s Responses to Defendant’s Form Interrogatories (Set One) and Request for Sanctions filed by Defendant ESA Management, LLC

-Motion to Compel Plaintiff’s Responses to Defendant’s Special Interrogatories (Set One) and Request for Sanctions filed by Defendant ESA Management, LLC

-Motion to Compel Plaintiff’s Responses to Defendant’s Request for Production of Documents (Set One) and Request for Sanctions filed by Defendant ESA Management, LLC

-Motion to Compel Plaintiff’s Response to Defendant’s Request for Statement of Damages and Request for Sanctions filed by Defendant ESA Management, LLC

Sanctions in the amount of $1,480 are imposed jointly and severally on Plaintiff and Plaintiff’s Counsel. Sanctions are due within 30 days after the date of this order.

This is an action for negligence arising from a trip and fall incident which took place in April 2020. Plaintiff Rachel Brewer filed her Complaint against Defendant Extended Stay America on April 4, 2022

Defendant filed the instant motions to compel Plaintiff’s responses to Form Interrogatories (“FROGs”), Special Interrogatories (“SROGs”), Requests for Production (“RPDs”), and request for statement of damages on August 30, 2022.

Defendant propounded requests for written discovery and a request for a statement of damages on May 10, 2022. As of the date of the filing of this motion, Plaintiff did not serve responses. Defendant also requests sanctions.

Plaintiff argues that the motions are moot because responses were served on August 30, 2022. Plaintiff also argues sanctions should not be granted because Plaintiff’s counsel acted diligently to provide responses before the hearing. Plaintiff also requests sanctions

Defendant argues that the motions are not moot because Plaintiff served responses with objections when objections were waived due to the untimely responses.

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.)

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 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.

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)).)

In a personal injury action, a defendant may at any time request a statement of damages setting forth the nature and amount of damages being sought. (Code Civ. Proc., section 425.11, subd. (b).) If a plaintiff fails to respond after a defendant makes the request, the defendant may petition the court in which the action is pending to order the plaintiff to serve a responsive statement. (Id.)

Defendant supports its motion with a declaration from counsel. Defendant propounded written discovery requests and the request for a statement of damages on May 10, 2022 with responses due on June 13, 2022 and May 30, 2022 respectively. (Jindal Decl., ¶4.) Defendant granted five extensions between June 13, 2022 and August 8, 2022. (Id., ¶¶6-10.) Plaintiff failed to provide responses by the agreed upon date of August 22, 2022. (Id., ¶12.)

Plaintiff in opposition states that she served responses on August 30, 2022. The responses contained a mix of objections and responses. (Liu Decl., ¶14.) The responses did not include a statement of damages. (Id.)

Since Plaintiff provided responses with objections which had been waived, these discovery motions are not moot. If Plaintiff wishes to seek relief from the waiver of objections, Plaintiff may do so. However, Plaintiff may not seek that relief via Plaintiff’s response to these motions.

The Court does find that sanctions are appropriate here as Plaintiff unsuccessfully opposed the motions and did not act with substantial justification. The Court also does not find that other circumstances make the imposition of sanctions unjust. Here, Plaintiff opposed the motions arguing mootness when Plaintiff did not provide code-complaint responses given that objections had been waived. Plaintiff could have sought relief from this waiver but did not do so.

With respect to the three discovery motions, the Court imposes sanctions jointly and severally against Plaintiff and Plaintiff’s Counsel of Record. However, the Court finds that the amount of sanctions requested is unreasonable. Here, the Court will

With respect to the motion to compel Plaintiff to serve a statement of damages, Code Civ. Proc., 425.11 does not authorize sanctions. Plaintiff cites a footnote in Argame v. Werasophon, 57 Cal.App.4th 616, 618 (1997), which states the court there would have been justified in awarding sanctions for a party’s failure to comply with Code Civ. Proc., section 425.11. This is insufficient support for the proposition that sanctions may be awarded with respect to this motion.