Judge Jill Feeney, Case Number: 22STCV18759, Date: 2024-03-25 Tentative Ruling

This is an action for breach of fiduciary duty, conversion, unjust enrichment, accounting, declaratory relief, and failure to allow the inspection of corporate records. Plaintiff Krista Harvey (K. Harvey) alleges that while she was married to Defendant Frank Harvey (F. Harvey), they formed Car Studio LLC, a car wash in Compton, California. The car wash was owned by the Frank Harvey III and Krista F. Harvey Revocable Family Trust. When the Harveys began divorce proceedings, F. Harvey refused to deposit money he received from Car Studio into the business’s bank account and began pocketing cash from the business for his personal use. F. Harvey also sold Car Studio and the land it was built on in violation of the operating agreement and trust. F. Harvey failed to pay Car Studio’s property taxes. Finally, F. Harvey withheld accounting documents necessary to file 2021 tax returns.

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. section 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc. section 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., section 2033.280(c).)

A party waives its objections to a discovery request when it does not serve a timely response to the request. (Code Civ. Proc., sections 2031.300(a), 2033.280(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 party may be relieved of a waiver of objections if (1) the party has subsequently served a substantially compliant response and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., sections 2031.300(a), 2033.280(a).)

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.)

Sanctions may be imposed for misuse of discovery process. (Code Civ. Proc., section 2023.030, subd. (a). ) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., section 2023.010, subd. (d).) Cal. Rules of Court, Rule 3.1348 provides that a court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery even if no opposition was filed.

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true and motions to compel responses to 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., sections 2031.300(c), 2033.280(c).)

Plaintiff’s counsel testifies that he propounded requests for written discovery on F. Harvey on October 31, 2022. (Perez Decl., ¶2.) After Plaintiff granted extensions, F. Harvey’s responses were due on April 7, 2023. (Id., ¶3.) Defendant failed to file responses as of the date of this motion. (Id., ¶¶5-8.)

In opposition, F. Harvey’s counsel testifies that his previous counsel substituted out in March 2023 without serving responses to Plaintiff’s discovery requests. (Raymond Decl., ¶8.) Defendant, after obtaining new counsel, produced responsive documents on February 12, 2024. (Id., ¶13.) Defendant failed to serve a timely response due to misunderstanding, lack of sophistication, and because of the emotional stress caused by divorce. (Id., ¶14.)

Plaintiff also seeks sanctions against F. Harvey. Sanctions are mandatory here because F. Harvey failed to serve timely responses to Plaintiff’s RFAs. Additionally, the Court grants Plaintiff’s request as to the motion to compel responses to RPDs because failing to timely serve responses constitutes abuse of the discovery process. Although F. Harvey argues Plaintiff should have communicated more courteously with F. Harvey to informally resolve this dispute, there is no requirement that the propounding party must meet and confer before filing a motion to compel initial responses for discovery.

Plaintiff’s request for sanctions is excessive. Because the two motions were simple and substantially similar, the Court awards $1470 total for both motions for three hours of attorney time at a rate of $450 per hour and filing fees.

F. Harvey moves for relief from waiver of objections with respect to both motions on the grounds that he mistakenly believed the attorney representing him in divorce proceedings would respond to the discovery requests. F. Harvey’s counsel’s declaration is insufficient to show he failed to respond to the requests due to mistake because counsel does not have personal knowledge of F. Harvey’s actions. The declaration merely states F. Harvey retained a new attorney who only took on the family law case. (Raymond Decl., ¶11.) Counsel’s declaration does not explain why F. Harvey failed to serve timely responses. However, it is reasonable to infer that F. Harvey neglected to serve the responses while he was without an attorney. Because F. Harvey has since served compliant responses and Plaintiff does not dispute that the responses are complete, F. Harvey’s request for relief from waiver of objections is granted as to both motions.