Judge Kerry Bensinger, Case Number: 23STCV21660, Date: 2024-05-08 Tentative Ruling

MOTION TO COMPEL DEFENDANT MERCEDES-BENZ USA, LLC’S RESPONSES TO FORM INTERROGATORIES (SET ONE)

MOTION TO COMPEL DEFENDANT MERCEDES-BENZ USA, LLC’S RESPONSES TO SPECIAL INTERROGATORIES (SET ONE)

MOTION TO COMPEL DEFENDANT MERCEDES-BENZ USA, LLC’S RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)

MOTION FOR ORDER ESTABLISHING ADMISSIONS TO PLAINTIFF’S REQUESTS FOR ADMISSION (SET ONE) AGAINST MERCEDES-BENZ USA, LLC

On March 29, 2024, Plaintiff, Christina Gozy, filed these motions to compel Defendant, Mercedes-Benz USA, LLC, to provide responses to Plaintiff’s First Set of Form Interrogatories, Special Interrogatories, and Request for Production of Documents, and to deem Requests for Admission admitted against Defendant. Plaintiff seeks sanctions against Defendant and its counsel.

On April 30, 2024, Defendant filed untimely oppositions. The oppositions referenced Declarations of Vanessa Dao and Defendant’s responses which were not filed with the court.

On May 6, 2024, Defendant filed the supporting Declarations of Vanessa Dao and Defendant’s belated discovery responses. The discovery responses are not verified.

If a party to whom interrogatories or inspection demands were directed fails to serve a timely response, the propounding party may move for an order to compel responses without objections.¿ (Code Civ. Proc., §§ 2030.290, subd. (b); 2031.300, subd. (b).)¿ If a party to whom requests for admission are directed fails to serve a timely response, the propounding party may move for an order that the truth of the matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).)¿ Failure to timely serve responses waives objections to the requests. ¿(Code Civ. Proc., §§ 2030.290, subd. (a); 2031.300, subd. (a); 2033.280, subd. (a).)

A party moving to compel discovery responses under these statutory provisions is not required to meet and confer prior to filing the motion.¿ (See Code Civ. Proc., §§ 2030.290, subd. (b), 2031.300, subd. (b); see also Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411 (Sinaiko) (citing Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906 for the proposition that “meet and confer” requirement “did not apply when propounding party sought order compelling responses to interrogatories and sanctions for responding party's failure to respond ‘within the statutorily permitted time’”).)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to inspection demands, the court “shall impose a monetary sanction . . . unless it 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., § 2031.300, subd. (c).) In the context of a motion to deem requests for admission admitted, it is mandatory that the court impose monetary sanctions on the party or attorney, or both, whose failure to serve a timely response to the request necessitated the motion. (Code Civ. Proc., § 2033.280, subd. (c).)

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

Plaintiff moves for an order compelling Defendant to provide responses to Plaintiff’s interrogatories and production request and to deem admitted the requests for admissions.

It is undisputed that Plaintiff properly served Defendant with the at-issue discovery requests and Defendant did not provide timely responses. Objections to the discovery requests are therefore waived.¿

In opposition, Defendant argues the motions should be denied because full responses have been served. Defendant did not initially include the response with its oppositions, but instead, separately submitted the responses to the court after Plaintiff filed her replies. The responses are a mixture of objections and substantive responses. (See Declarations of Vanessa Dao, Exs. A.) The responses are not verified. Defendant represents that “Plaintiff does not take issue with the substance and completeness of the responses served.” Defendant further argues the court should relieve Defendant of the waiver of objections because “there is no prejudice to any party” and because the delay was due to mistake, inadvertence, and excusable neglect.^{^[1] [2]}

Defendant’s arguments lack merit. As Plaintiff points out in her replies, Defendant served unverified responses on April 30, 2024. “Unsworn responses are tantamount to no responses at all.”¿ (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)¿ Defendant’s service of unverified responses does not moot Plaintiff’s motions.

Plaintiff requests sanctions against Defendant and its counsel. Given the Court’s ruling, sanctions are warranted. Defendant concedes untimely responses were served. In the context of untimely responses to requests for admission, sanctions are mandatory. (Code Civ. Proc., § 2033.280, subd. (c).) Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is also proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Defense counsel does not meet their burden.[3]¿ Defendant succeeds only in showing the untimely discovery responses were attributable to Defendant’s error alone. Accordingly, sanctions are imposed against defense counsel only in the sum of $3,153.20, consisting of six hours at Plaintiff’s counsel’s hours rate and $153.20 in filing fees.

The motions are GRANTED. Defendant Mercedes-Benz USA, LLC is ordered to serve verified, objection-free responses to Plaintiff’s First Set of Form Interrogatories, Special Interrogatories, and Request for Production of Document, within 30 days of this order. Plaintiff’s Request for Admissions, Set One, is deemed admitted against Defendant. If Defendant provides proof of service of verifications for its responses to Plaintiff’s discovery requests, the court will adopt this order with respect to sanctions only.

The request for sanctions is granted. Defense counsel is ordered to pay sanctions in the amount of $3,153.20 to Plaintiff, by and through her counsel, within 30 days of this order.

[1] Defendant also requests relief from its waiver of objections. Defense counsel explains that Plaintiff’s discovery was inadvertently missed due to absence of the lead attorney on medical leave and the departure of the previous handling attorney. (See Dao Decls., ¶ 5.) With respect to requests for admission, the court, on motion, may relieve a party of a waiver of objections if the party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230, and the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2033.280, subd. (a)(1), (2).) “The law governing the consequences for failing to respond to requests for admission may be the most unforgiving in civil procedure. There is no relief under section 473. The defaulting party is limited to the remedies available in [CCP § 2033.280].” (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 394-395 (disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12).) A relief from waiver should be brought by motion. (See Code Civ. Proc., § 2033.280, subd. (a); see also Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2023) ¶ 8:1369.1.)

Here, the court has reviewed Defendant’s responses to Plaintiff’s requests for admission. The court is inclined to find the responses to the requests for admission to be substantially compliant, but for the lack of verification. (Allen-Pacific, Ltd. v. Sup.Ct. (Chan) (1997) 57 Cal.App.4th 1546, 1551, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12 [unsworn responses are not substantially compliant].) If, at the hearing, Defendant provides proof that verifications have been served, the court will not adopt the portion of this ruling deeming the admissions admitted. The court further notes that, although Defendant should have brought a motion for relief from waiver pursuant to Section 2033.280, the court will exercise its discretion to consider Defendant’s request as to the request for admission.

[2] Defendant also requests relief from waiver of objections as to the interrogatories and production demands. As with relief from waiver of objections to admissions requests, a noticed motion is required when seeking the same relief as to interrogatories and production demands. (See Code of Civil Procedure, §§ 2030.290, subd. (a); 2031.300, subd. (a).) If, at the hearing, Defendant provides proof that verifications have been served, the court will not adopt the portion of this ruling as to the interrogatories and production demands. The court further notes that, although Defendant should have brought a motion for relief from waiver pursuant to Sections 2030.290 and 2031.300, the court will exercise its discretion to consider Defendant’s request as to interrogatories and production demands.

[3] Additionally, Defendant represents that Plaintiff did not take issue with the belated service of unverified responses. Plaintiff objects to the representation. There is support for Plaintiff’s position. Plaintiff provides time-stamped emails showing that Defendant served the unverified responses at 11:09 p.m. on April 30, 2024—after Defendant filed its oppositions. (See Reply, Declaration of Sam Azimtash, Exs. A and B.) Plaintiff could not have taken issue with discovery responses that were served after the oppositions were filed.