Judge Jill Feeney, Case 22STCV16439 2023-01-25 Tentative Ruling

The requests for sanctions are granted. Sanctions in the total amount of $1,170 are imposed jointly and severally against Defendant and Defendant’s Counsel of Record. Sanctions are due within 30 days after the date of this order.

This is an action for negligence arising from a vehicle collision which took place in August 2020. Plaintiff George Salman filed his Complaint against Defendant Maria Rosario Delgadillo on May 17, 2022.

Plaintiff filed the instant motions to compel Defendant to respond to Plaintiff’s Requests for Production (“RPDs”) and to Deem Requests for Admissions (“RFAs”) admitted on November 30, 2022.

Plaintiff originally propounded the first set of RPDs and RFAs on Defendant on September 26, 2022. To date, Defendant has not responded although responses were due by October 28, 2022.

Defendant argues in opposition that Plaintiff’s counsel failed to meet and confer. Defendant also claims the discovery responses were late due to Defendant’s counsel’s failure to calendar the responses and requested an extension to serve responses without a waiver of objections. Defendant alleges that she granted Plaintiff two extensions to respond to Defendant’s discovery requests and expected to receive the same from Plaintiff. Plaintiff rejected the request, did not meet and confer, and demanded that Defendant serve immediate responses without objections.

Plaintiff points out that the Court denied his request to consolidate all motions and renews his request. Plaintiff also argues that he was not required to meet and confer before making the instant motions. Plaintiff also states that Defendant served a voluntary document production that is not code compliant. Additionally, Defendant has not served responses to Plaintiff’s RFAs.

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.

Where there has been no timely response to requests for admissions, a “requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with section 2023.010).” The court “shall” grant the motion to deem requests for admission admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280(c).)

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).)

Here, Plaintiff is entitled to orders compelling Defendant’s responses to RPDs. Plaintiff’s request is supported by a declaration counsel. Plaintiff propounded written discovery on Defendant on September 26, 2022 with responses due on October 28, 2022. (Vafa Decl., ¶¶2.) On November 29, 2022, Plaintiff’s counsel contacted Defendant’s counsel and granted an extension for several more weeks on the condition that Defendant serve responses without objections and provide a response to FROG number 4.1. (Id., ¶4.) On December 16, 2022, Defendant served incomplete, unverified responses to RPDs that also failed to include identifiers illustrating which Request the responses corresponded to. Vafa Supplemental Declaration, ¶20.)

Defendant’s unverified responses to RPDs are tantamount to no response at all. Although Defendant argues Plaintiff failed to meet and confer, there is no meet and confer requirement where a party fails to serve any response to requests for production and requests for admission. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390, 411.) Here, Defendant does not dispute that the responses are late and that she has not served verified responses to date. Because Defendant has served no response to Plaintiff’s RPDs, Plaintiff’s motion is granted.

The same analysis applies to Plaintiff’s request to deem its requests for admissions admitted. The genuineness of any documents and the truth of any matters specified in Plaintiff’s motions are admitted.

Defendant also moves for relief from waiver of objections on the grounds that the discovery responses were late due to a clerical error. However, Defendant must make her own motion and serve code-compliant responses in the meantime.

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. Pricewaterhouse Coopers (Court of Appeal, Second District (2022) 2022 WL 12010415.) 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, Plaintiff’s request for sanctions is granted because Defendant unsuccessfully opposed these motions and the Court does not find that Defendant acted with substantial justification. Regardless of any opposition, sanctions are mandatory with respect to the request for admission.

This amount is not reasonable given the duplicative nature of the two motions at issue here. For both motions, the Court awards sanctions in the total amount of $1,170 (three hours of time at $350 per hour plus $120 for two filing fees).

At the hearing on this matter on December 30, 2022, Defendant contended that the motion with respect the RFAs was moot since code compliant responses had been served. Plaintiff contended that the responses were not code compliant. The Court permitted additional briefing.

Plaintiff argues in her supplemental briefing that the verifications accompanying the responses are not code compliant because they contained objections, the verifying party states that the information in the responses was true based on information and belief, and because Plaintiff disputes the validity of the verification because the metadata to the document was erased.

The Discovery Act does not define “substantial compliance” in the context of service of a proposed response that complies with Code Civ. Proc., section 2033.220. The courts have ruled that “substantial compliance” means actual compliance with all matters of substance and that technical deviations are not to be given the stature of noncompliance. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779.) For example, unverified responses are not in substantial compliance. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Additionally, RFA responses must be examined in their entirety. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 780.)

Plaintiff submitted supplemental briefing on her motion to deem RFAs admitted which was last heard on December 30, 2022. Although Defendant objected to Plaintiff’s reply on the grounds that there was no declaration, Plaintiff’s counsel did submit a supplemental declaration. Accordingly, Plaintiff’s objections are overruled.

Plaintiff first argues that Defendant’s responses is not substantially code compliant because RFAs Nos. 3-5 contain objections despite Defendant waiving objections by failing to serve timely responses. Although Defendant has waived objections, the objections here are only a portion of the RFAs and the remainder of the responses are complete responses. The Court must examine the RFAs in their entirety and may not take a piecemeal approach to deeming RFAs admitted. If Plaintiff wishes to seek further responses to the incomplete RFAs, Plaintiff may file a motion to compel further.

“The matters stated in the foregoing documents are true of my own knowledge except to those matters which are stated on information and belief, and as to those matters. I believe them to be true.” (Motion, p. 1.)

Plaintiff cites the Rutter Group California Practice Guide at 8:1478. However, this section pertains to responses to inspection demands on behalf of an entity. The Rutter Guide notes in section 8:1335 on RFA responses that in the past, courts have allowed denials based on information and belief. (Cohen v. Sup.Ct. (Gonzalez) (1976) 63 CA3d 184, 187.) Additionally, Defendant did not make any admissions or denials based on information or belief in the responses. Thus, this argument fails.

Upon examination of the verifications attached as Exhibit 1B to Plaintiff’s supplemental briefing, the Court finds that the image, though of low quality, is still legible enough to be read.

Plaintiff next argues that the responses are not code compliant because they are not authentic and lack metadata. Plaintiff’s counsel testifies that when he received the responses and attempted to view the metadata through Adobe Acrobat metadata viewer, the metadata and origination information was wiped from the documents. (Vafa Decl., ¶5.) Plaintiff argues that the missing metadata is evidence that the responses are not accurate representations of the data.

Plaintiff cites People v. Retke (2015) 232 Cal. App. 4th 1237. Evidence Code, section 1552 creates a presumption that a printed representation of computer-generated information is an accurate representation of the data. However a defendant may overcome this presumption if a party introduces evidence that a printed representation of computer information or computer program is inaccurate or unreliable. (Evid. Code, section 1552, subd. (a).) However, Retke concerned authentication in the criminal context and the admissibility of evidence that was the basis for a criminal conviction. Here, the issue is whether Defendant’s RFAs are “substantially compliant” and there is no requirement that the responses be further authenticated.

As discussed above, Plaintiff’s verifications are valid. Additionally, the metadata Defendant believes is missing would have described the files’ titles, authors, subjects, and keywords. (Vafa Decl., Exh. 3B.) This information would not determine whether Defendant’s substantive responses were accurate. Defendant’s counsel also repeatedly offered to allow Plaintiff’s counsel to compare the original documents. (Defendant’s objections, Appendix 1.) Moreover, there is no evidence that the responses were tampered with, nor does Plaintiff allege that any part of the substantive responses is suspect.