Judge Kerry Bensinger, Case BC695149 2023-01-31 Tentative Ruling

On February 13, 2028, Plaintiffs Devin Trejo and Asmik “Jasmine” Trejo filed a Complaint for injuries arising from being removed at a comedy show at Defendant The Comedy Store’s (“Defendant”) premises. On June 10, 2022, Plaintiff Devin Trejo (hereinafter referred to as “Plaintiff”) served Special Interrogatories (Set Two) and Request for Production of Documents (Set Two) (collectively referred to as the “Discovery”) on Plaintiff. On July 8, 2022 Defendant served responses to the Discovery, but without verifications, and stated that verifications were to follow. Despite meet and confer efforts, Defendant failed to provide verifications for the Discovery, and Plaintiff filed instant Motions to compel Defendant to provide verified responses. Plaintiff also requests monetary sanctions.

Under California law, unsworn responses are tantamount to no responses. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [holding that unverified responses are tantamount to no responses.])

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Here, Defendant failed to serve verified responses to the Discovery. As set forth above, the failure to serve verified responses is tantamount to providing no response at all.

In opposition, Defendant contends that responses are no longer required, as one of the reasons Plaintiff represented that he needed the verified responses was to take an expert deposition, and that deposition has since been taken.

The taking of the expert deposition is irrelevant for the purposes of this Motion, as the primary reason the Motion was brought was due to Defendant’s failure to serve verified response. The Discovery is related to subject incident, and is necessary to prepare for trial. Defendant failed to comply with its discovery obligation by timely serving verified responses. Defendant has waived any objections to the Discovery. To the extent that Defendant is under the impression that Plaintiff was required to comply with the rules and statutes relating to a motion to compel further responses, that is incorrect. Defendant’s failure to serve verified responses is equivalent to no response, and the proper motion is a motion to compel initial responses.

Accordingly, Plaintiff’s motion to compel responses to the Discovery is GRANTED.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c).) Where a party fails to provide a timely response to requests for admission, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280, subd. (c).)

Defendant has failed to provide a sufficient basis to explain the continued failure to provide verified response. Plaintiff’s request for sanctions is GRANTED. Sanctions are imposed against Defendant in the amount of $1,520.00 for 4.5 hours at Plaintiff’s counsel’s hourly rate of $400.00 (because the two motions were substantially the same) plus two $60.00 filing fees, to be paid within twenty (20) days of the date of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court