Judge Kevin C. Brazile, Case Number: 20STCV06388, Date: 2024-03-08 Tentative Ruling

TENTATIVE RULINGS

SUBMISSION INSTRUCTIONS

STANLEY MOSK COURTHOUSE, DEPARTMENT 20 - JUDGE KEVIN C. BRAZILE

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This case stems from allegations of fraudulent checks. From 2012 to 2020, Patricio Sanchez (Plaintiff) enjoyed a business relationship with B & M, Byron Antonio Recinos and Marvin Enrique Medina (Defendants). Plaintiff exported flowers to Defendants, and Defendants sold the flowers for a profit, paying the invoice to Plaintiff within 30 days. (Complaint, ¶ 7.) Plaintiff alleges that there were occasions where Defendants were tardy in making their payments, however because of the personal and individual promises of the Defendants, Plaintiff maintained a business relationship with Defendants. (Complaint, ¶ 8.) After the outstanding balance grew to $102,404.00 a meeting was convened, and Defendants provided Plaintiff with 10 signed checks totaling $50,000.00 as proof of intention to pay. (Complaint, ¶ 9.) However, when Plaintiff attempted to cash these checks, the bank rejected them, that is when Plaintiff found that Defendants business B & M ceased to exist. (Complaint, ¶¶ 10-13.)

Plaintiff filed suit on February 22, 2022 alleging three causes of action against Defendants: (1) breach of contract, (2) fraud, (3) and alter ego allegations. The motions now before the Court are three motions to compel discovery responses filed by Defendants:

Defendants request monetary sanctions in each Motion, and the Motions are opposed. No reply is filed.

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., § 2030.290, subds. (b), (c).) Failure to timely respond waives all objections, including privilege and work product, unless “[t]he party has subsequently served a response that is in substantial compliance” and “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2030.290, subds. (a)(1), (a)(2).) The statute contains no time limit for a motion to compel where no responses have been served and no meet and confer is required when a party does not respond to discovery requests. All that need 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.)

If a motion to compel responses to interrogatories is filed, the Court may impose a monetary sanction against the losing party “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., §§ 2030.290, subd. (c).) Further, “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)

Defendants provide the same facts in each Motion with the Declaration of Estefan Encarnacion (Encarnacion Decl.). On March 29, 2023, the discovery request was properly served on Plaintiff by former counsel. (Encarnacion Decl., ¶ 3.) Responses were due on April 29, 2023, however, responses were never received. (Encarnacion Decl., ¶ 4.) On June 20, 2023, Defendants retained their current counsel for completion of their case. (Encarnacion Decl., ¶ 5.) After follow-ups by Defense counsel on June 29, 2023, July 5, 2023, and July 18, 2023 went unanswered, Defendants filed these Motions.

Plaintiff argues that, on December 1, 2023 full and complete responses without objections were served. Additionally, Plaintiff contends that Plaintiff is a Spanish speaker and does not read nor write in English, and that Plaintiff is a foreign citizen who resides in Ecuador. Therefore, language barriers and availability issues contributed to the delay. The Court is unpersuaded. Responses were not served until December 1, 2023 after the initial requests were propounded in March of 2023. This is more than enough time to overcome language barriers and time zone hurdles. Additionally, extensions were never asked for and follow-ups by Defense counsel went ignored. Finally, even if discovery responses have been served, the Court can still award sanctions. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407.)

· Counsel anticipated taking 2.5 hours to review opposition papers and prepare a response to each

· Counsel estimates that it will take 4.5 hours to travel to and from their offices in order to attend the hearing for these Motions

Considering the similarities between the Motions, and that no reply was filed, the Court will impose sanctions on Plaintiff, and award them to Defendants, in the amount of $1,760.00, in total, inclusive of all Motions.

Accordingly, Defendants’ Motion to Compel Responses to Form Interrogatories (Set 1), Motion to Compel Responses to Form Interrogatories (Set 2), and Motion to Compel Responses to Special Interrogatories (Set 1) are all GRANTED. The Court will impose sanctions on Plaintiff, and award them to Defendants, in the amount of $1,760.00, in total, inclusive of all Motions.