Judge Jill Feeney, Case 22STCV25905 2023-03-22 Tentative Ruling

Motion to Compel Plaintiff Robert Apodaca’s Responses to Form Interrogatories (Set One) and Request for Monetary Sanctions filed by Defendant RA Organic Spa, Inc.

Moving party is ordered to provide notice and to file proof of service both electronically and by mail within two court days after the date of this order.

This is an action for negligence and premises liability arising from a body massage which Plaintiff alleges led to a stroke in April 2021. Plaintiff Robert Joe Apodaca filed his Complaint against RA Organic Spa, Inc and RA Organic Spa on August 11, 2022.

Defendant RA Organic Spa, Inc. dba RA Organic Spa filed the instant motion to compel Plaintiff’s responses to their Form Interrogatories (“FROGs”) on January 3, 2023.

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.)

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 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)).)

Defendant’s counsel testifies that he propounded Form Interrogatories on September 16, 2022. (Minikes Decl., ¶5.) After receiving no response, Defendant sent an email to Plaintiff’s counsel inquiring about the late responses. (Id., ¶6.) The parties agreed that Plaintiff would serve responses by November 29, 2022. (Id., ¶7.) To date Plaintiff has not served responses to Defendant’s request. (Id., ¶10.)

Because Plaintiff has not responded to Defendant’s FROGs, Defendant’s motion to compel Plaintiff’s responses to their FROGs is granted.

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.) Sanctions for with respect to interrogatories 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).). Here, Defendant’s request for sanctions are denied because this motion was not opposed.