Judge Jill Feeney, Case Number: 22STCV37412, Date: 2024-03-15 Tentative Ruling

Commercial Loan Servicing, LLC’s request for sanctions is GRANTED in the amount of $1,605 jointly and severally against Cross-Defendants Feigen and Ahlholm. Sanctions are payable within 30 days after the date of this order.

On November 29, 2022, Plaintiffs Windsor Terrace Healthcare, LLC and Windsor Healthcare Sepulveda, LLC filed their Complaint against Defendants Lawrence Feigen, SA Hospital Real Estate Holdings-Jefferson (SA Hospital), and Commercial Loan Servicing, LLC (CLS).

On February 20, 2024, CLS filed these motions to compel SA Hospital’s responses to requests for Form Interrogatories (FROGs), Special Interrogatories (SROGs), Requests for Production (RPDs), and to deem Requests for Admissions (RFAs) admitted.

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.

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).)

A party waives its objections to a discovery request when it does not serve a timely response to the request. (Code Civ. Proc., section 030.290(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.

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., § 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., § 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 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), 2033.280(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, CLS’s counsel testifies that he served requests for written discovery on Cross-Defendants on May 2, 2023. (Hyslop Decl., ¶6.) After CLS agreed to two extensions, Cross-Defendants failed to provide responses to the discovery requests. (Id., ¶8.) On August 2, 2023, CLS’s counsel emailed Cross-Defendants’ counsel inquiring after the missing responses. (Id., ¶9.) Cross-Defendants’ counsel never responded to the email or a follow up email. (Id., ¶11.)

Cross-Defendants’ counsel testifies that the parties executed a settlement agreement around June 2023 and asked to extend the discovery deadline to August 3, 2023. (Gardner Decl., ¶6.) CLS never informed Cross-Defendants that the discovery requests were still at issue and did not move to compel the responses earlier. (Id., ¶¶10, 14.) Cross-Defendants served responses on February 27 and 29, 2024. (Id., ¶¶15-16.)

Cross-Defendants also argue that the request for sanctions should be denied because they believed the parties had settled before CLS filed its motion for summary adjudication. (Opp., p.7.)

Cross-Defendants arguments fail because there is no requirement that CLS move to compel the responses earlier. Additionally, CLS had no obligation to inform Cross-Defendants that the responses were still at issue.

The argument that Cross-Defendants believed the parties had already settled is also without merit. Cross-Defendants attached emails showing the parties considered settlement in June 2023. (Opp., Exh. 3.) On June 29, 2023, Cross-Defendants’ counsel signed a final version of the settlement and emailed it to CLS’s counsel. (Opp., Exh. 5.) On July 5, 2023, CLS’s counsel explained that no discovery responses would be required if SA Hospital made payment on or before July 17, 2023. (Opp., Exh. 6.) If SA Hospital failed to make the payment, CLS would refuse settlement. (Id.) By August 2, 2023, SA Hospital had not made payments and the settlement fell apart. (Opp., Exh. 7.)

Srinivas Yalamanchili further testifies that the June 2023 settlement agreement, which was not filed with the opposition, stated that the agreement was void if payment was not made by August 1, 2023. (S. Yalamanchili Decl., ¶6a.) Cross-Defendants failed to make payments under the settlement agreement. (Id.)

These communications show that CLS represented discovery responses would still be due unless Cross-Defendants made payments under the settlement agreement by July 17, 2023. Because Cross-Defendants failed to make payments, Cross-Defendants were still required to serve discovery responses. It is unreasonable that Cross-Defendants believed no responses were due after they failed to make any payments under the settlement agreement. Nevertheless, because Cross-Defendants served late responses to FROGs, SROGs, RPDs, and RFAs before the hearing on these matters, the motions are denied as moot.

With respect to sanctions, CLS seeks sanctions against Feigen and Ahlholm. Sanctions are mandatory here because Cross-Defendants failed to timely serve responses to RFAs. Additionally, the Court finds that Cross-Defendants’ failure to serve timely responses to FROGs, SROGs, and RPDs constitutes misuse of discovery.

However, given that the motions are identical to earlier motions for which sanctions were awarded, the Court will award a lesser amount of sanctions here. The Court awards a total of 1.5 hours of attorney time at a rate of $750 per hour, a total of $1,125, plus $480 in filing fees for the eight motions.