Judge Jill Feeney, Case 22STCV16628 2023-01-17 Tentative Ruling

This is an action for negligence arising from a vehicle collision which took place in October 2020. Plaintiff Luis Enrique Castro Dagnino filed his Complaint against Ports America Shared Services, Inc., China Shipping (North America) Holding Co., Ltd., and Yang Ming Marine Transport Corp. on May 19, 2022.

Plaintiff filed the instant motions to compel Defendant Ports America Shared Services, Inc.’s (“Ports”) responses to Form Interrogatories (“FROGs”), Special Interrogatories (“SROGs”), and Requests for Production (“RPDs”) on January 3, 2023.

Plaintiff propounded discovery requests on Defendant Ports on July 14, 2022. After granting several extensions, Ports served responses consisting only of objections on October 11, 2022. Plaintiff argues this is tantamount to no response at all and that Ports should be compelled to respond with verified responses. Plaintiff also seeks sanctions.

Ports opposes this motion on the grounds that Plaintiff failed to meet and confer prior to making this motion. Ports argues that Plaintiff only contacted Ports’ previous attorney who left his firm by the time Plaintiff contacted him. Ports also alleges that full, verified responses were served on December 20, 2022. Ports also argues that sanctions are not warranted because these motions are moot.

Plaintiff argues that there is no requirement to meet and confer if the discovery response was not timely served. Plaintiff also argues that sanctions are appropriate here because the substantive responses were served after this motion was filed.

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 supports his motion with a declaration from counsel. Plaintiff first propounded written discovery on July 14, 2022. (Perez Decl., ¶2.) After Plaintiff granted multiple extensions, the responses were due on October 11, 2022. (Id., ¶7.) Ports served responses consisting only of objections on October 11, 2022. (Id., ¶3.)

Because Ports served responses to Plaintiff’s discovery requests by the parties’ agreed deadline of October 11, 2022, Ports did timely respond to the discovery requests. Plaintiff argues that the responses are tantamount to no response at all because they are unverified. However, objections do not need to be verified. Thus, Ports served timely responses to Plaintiff’s discovery requests.

Ports also argues in its opposition that the attorney originally handling the case, Andrew Micaraset, left the firm on October 14, 2022. (Kessel Decl., ¶3.) Although the lead attorney on this case, Bart Kessel, knew discovery responses were due, he did not review the responses prepared by Micaraset because he trusted they would be full and complete. (Id., ¶5.) After discovering the responses consisted entirely of objections, Kessel drafted full responses, reviewed them, obtained verifications, and served them on December 22, 2022. (Id., ¶8.) Plaintiff does not dispute on reply that these responses are complete.

Ports did timely respond to Plaintiff’s discovery requests. Since Plaintiff disputed the adequacy of the responses, this should have been a motion to compel further and the necessary meet and confer and IDC requirements should have been completed. Ports now has served complete and verified substantive responses. Thus, this motion is denied as moot.

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)).