Judge Jill Feeney, Case Number: 23STCV27617, Date: 2024-04-16 Tentative Ruling

MOTIONS TO COMPEL DEFENDANT FCA US LLC’S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, AND REQUESTS FOR PRODUCTION

In the event that verified versions of the responses previously served are not served within 21 days after the date of this order, Defendant’s objections are waived and Defendant must then serve verified responses without objections within 10 days after the 21 day deadline has passed.

Plaintiff’s requests for sanctions are GRANTED in the amount of $2,384.95 jointly and severally against Defendant and Defendant’s attorney of record. Sanctions are payable within 21 days after the date of this order.

This is an action for violations of the Song Beverly Consumer Warranty Act. Plaintiff alleges that she purchased a 2021 Alfa Romeo Stelvio vehicle in September 2021. The purchase came with an express written warranty. The vehicle was delivered to Plaintiff with serious defects with the vehicle’s air conditioning, check engine light, battery, and infotainment screen, among other things. After Defendant could not repair the vehicle, Defendant failed to repurchase or replace the vehicle.

On March 8, 2024, Plaintiff filed these motions to compel Defendant’s responses to Form Interrogatories (“FROGs”), Special Interrogatories (“SROGs”), and Requests to Inspect and Copy (“RPDs”).

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.)

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.

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., 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.

Plaintiff’s counsel testifies that he propounded written discovery requests on Defendant on December 19, 2023. (Aslanian Decl., ¶3.) After Plaintiff granted an extension, Defendant’s responses were due on February 6, 2024. (Id., ¶4.) Plaintiff’s counsel sent a meet and confer letter to Defendant’s counsel, demanding that Defendant serve responses without objection by February 19, 2024. (Id., ¶7.) As of the filing of this motion, Defendant had not served responses. (Id., ¶5.)

Defendant’s counsel testifies that she served responses to Plaintiff’s discovery requests on April 4, 2024. (Dao Decl., ¶4.) Counsel testifies that due to a high volume of lemon law cases received by her office, she inadvertently missed Plaintiff’s discovery requests. (Id., ¶5.) Through inadvertent error, Defendant’s counsel failed to send the responses. (Id.) Defendant’s counsel did not know the responses had not been served until Plaintiff filed this motion. (Id.)

Plaintiff argues on reply that Defendant’s opposition should not be considered because it is untimely. The Court will exercise its discretion and consider the opposition. Plaintiff also argues that the motions should be granted because Defendant’s late responses did not include verifications. Because the responses were not verified, they are tantamount to no response at all. Because Defendant failed to serve any response to Plaintiff’s requests for written discovery, Plaintiff’s motions are granted.

Defendant moves for relief from waiver of objections. Code Civ. Proc., sections 2030.290(a) provides that the court may, on motion, relieve a party from his waiver of objections to interrogatories if (1) the party has subsequently served a response that is in substantial compliance with sections 2030.21, 2030.220, 2030.230, and 2030.240 and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. There is a similar provision with regarding requests for production in Code Civ. Proc., section 2031.300.

The statutory language “mistake, inadvertence, or excusable neglect” in the discovery statute should be interpreted using the same general principles developed in application of the identical language in section 473, subdivision (b). (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275.) Although the party moving for relief under section 473 has the burden to show that the mistake, inadvertence, or neglect was excusable, any doubts as to that showing must be resolved in favor of the moving party. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.)

Here, because Defendant’s late responses did not include verifications, the responses are not substantially code compliant. As set forth above, if the verification issue is not rectified, objections will be waived.

Plaintiff also seeks sanctions under Code Civ. Proc., sections 2023,010 and 2023.030. Because Defendant’s responses were not timely served, the Court grants Plaintiff’s request for sanctions. Because the motions were substantially similar and will be heard on the same day, the Court awards sanctions in amount equal to four hours of attorney time at a rate of $550 per hour plus the three filing fees.