Judge: Latrice A. G. Byrdsong, Case: 23NWLC19496, Date: 2024-04-09 Tentative Ruling
Case Number: 23NWLC19496 Hearing Date: April 9, 2024 Dept: 25
Hearing Date: Tuesday, April 09, 2024
Case Name: CREDITORS
ADJUSTMENT BUREAU, INC v. LLEWELLYN INDUSTRIES, INC. AKA LLEWELLYN INDUSTRIES
INC DBA LLEWELLYN SUPPLY COMPANY AKA LLEWELLYN SUPPLY CO; and DOES 1 through
10, Inclusive
Case No.: 23NWLC19496
Moving Party: Plaintiff
Creditors Adjustment Bureau, Inc
Responding Party: Defendant Llewellyn Industries, Inc.
Notice: OK
Tentative Ruling: Plaintiff Creditors
Adjustment Bureau’s Motion to Compel Responses to Plaintiff’s First Set of
Special Interrogatories is GRANTED.
Plaintiff’s
Motion to Compel Responses to Plaintiff’s First Demand for Identification,
Production, Inspection and Copying of Documents and Other Things is GRANTED.
Plaintiff’s
Motion for Sanctions is GRANTED in part in the amount of $1,645.50.
SERVICE:
[X]
Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X]
Correct Address (CCP §§ 1013, 1013a) OK
[X]
16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed as of February 28, 2024 [ ] Late [ ]
None
REPLY: Filed as of February 22, 2024 [ ] Late [ ] None
BACKGROUND
On July 07, 2023, Plaintiff
Creditors Adjustment Bureau, Inc. (“Plaintiff”) filed an action against
Defendant Llewellyn Industries, Inc. aka Llewellyn Industries Inc dba Llewellyn
Supply Company aka Llewellyn Supply Co (“Defendant”) for 1) open book account, 2)
account stated, 3) reasonable value, and 4) breach of contract.
Defendant filed its Answer to the
Complaint on September 15, 2023.
On December 20, 2023, Plaintiff
filed the instant Motion to Compel Responses to Plaintiff’s First Set of
Special Interrogatories; Motion to Compel Responses to Plaintiff’s First Demand
for Identification, Production, Inspection and Copying of Documents and Other
Things; and Requests for Sanctions for both motions.
On February 26, 2024, the Court reassigned
the matter to Commissioner Latrice A.G. Byrdsong in Department 25 at the Spring
Street Courthouse.
On February 27, 2024, the Court on
its own motion scheduled the hearings for the motions for April 09, 2024.
Defendant files in opposition.
Plaintiff files in reply
MOVING PARTY
POSITION
Plaintiff prays
for the Court to issue an order compelling Defendant to provide responses to Plaintiff’s
First Set of Demand for Identification, Production, Inspection, and Copying of
Documents and Other Things as well as Plaintiff’s First Set of Special
Interrogatories under CCP § CCP §§ 2030.290(b) and 2031.300(b). Plaintiff asserts
that Defendant has failed to provide responses to its discovery requests and
has not provided substantial justification for its failure to respond. Plaintiff
additionally requests the Court issue an order for $1,572.75 in monetary sanctions
for each motion for the sum of three hours spent preparing and arguing the
motion at a rate of $500.00 per hour plus $72.75 in court fees.
OPPOSITION
In
opposition, Defendant argues that the motions to compel should be denied as
Defendant has already provided verified responses to the Plaintiff’s discovery requests.
REPLY
In reply,
Plaintiff asserts that sanctions are warranted in this matter as Defendant’s
untimely service of discovery responses and opposition serves as an
acknowledgement of Defendant and Defense Counsel’s misuse of the discovery
process and attempt to avoid the imposition of sanctions.
ANALYSIS
I. Legal
Standard
A party must respond to
interrogatories and requests for production of documents within 30 days after
service. (Code Civ. Proc., § 2030.260, subd. (a); Code Civ. Proc., § 2031.260,
subd. (a).) If a party to whom interrogatories or requests for production of
documents are directed does not provide timely responses, the requesting party
may move for an order compelling responses to the discovery. (Code Civ. Proc.,
§ 2030.290, subd. (b); Code Civ. Proc., § 2031.300, subd. (c).) The party also
waives the right to make any objections, including one based on privilege or
work-product protection. (Code Civ. Proc., § 2030.290, subd. (a); Code Civ.
Proc., § 2031.300, subd. (a).) There is no time limit for a motion to compel
responses to interrogatories or production of documents other than the cut-off
on hearing discovery motions 15 days before trial. (Code Civ. Proc., §§
2024.020, subd. (a), 2030.290; Code Civ. Proc., § 2031.300.) No meet and confer
efforts are required before filing a motion to compel responses to the
discovery. (Code Civ. Proc., § 2030.290; Code Civ. Proc., § 2031.300; Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
Cal.App.4th 390, 411.)
II. Discussion
A. Motion Compelling Responses to Plaintiff’s Special
Interrogatories and Demand for Identification, Production, Inspection and
Copying of Documents and Other Things
Plaintiff
moves to compel Defendant to serve responses to Plaintiff’s First Set of
Demand for Identification, Production, Inspection, and Copying of Documents and
Other Things (“RFPs”) as well as Plaintiff’s First Set of Special
Interrogatories (“Special Interrogatories”). Noting that the motions
essentially provide the same facts, the Court will address both motions
together in this order.
Plaintiff
provides the declaration of its counsel, who states that his office served
Defendant with Plaintiff’s RFPs and Special Interrogatories on September 29,
2023. (Mot. Joseph Jyoo Decl. ¶ 2; Exh. 1.) Counsel declares that he emailed defense
counsel with the discovery request the same day. (Id. ¶ 3; Exh. 2.)
After not receiving Defendant’s responses to Plaintiff’s discovery requests,
counsel sent an email on November 10, 2023, demanding that Defendant serve objection
free verified responses by November 15, 2023, or Plaintiff would file the
instant motions. (Id. ¶ 4; Exh. 3.) Counsel further states that defense
counsel responded on November 10, 2023, that he would prepare responses. (Id.
¶ 5; Exh. 4.) However, Counsel avers that as of the date of filing the instant
motions, Plaintiff has not received any responses to its discovery requests nor
any request for additional time from the Defendant. (Id. ¶ 6.)
In opposition, Defendant argues that its responses were electronically
mailed on February 13, 2024. (Oppo. p.3:13-15; Exh. 1.) Both responses are
verified and include proof of service indicating that the responses were
electronically mailed to the Plaintiff. (Id.)
In reply, Plaintiff concedes it has received Defendant’s responses,
but states that the tardy responses to Plaintiff’s RFPs are not legally
sufficient as the responses fail to comply with CCP § 2031.230 and that
monetary sanctions are still warranted as Defendant failed to provide
substantial justification for the delay. (Reply, pp. 4, 5:22-23.) The Court agrees, noting that Defendant’s responses only
provide boiler plate answers stating that “The Responding Party Produced
all documents under his possession and control.” (Oppo.; Exh. 1.) Moreover,
Defendant’s Responses to the RFPs do not include any of the documents requested
in Plaintiff’s RFPs. Additionally, the Court agrees with Plaintiff that the
Defendant has failed to respond to Plaintiff’s Special Interrogatory No. 16 as
there is no response included for such request. Thus, the Court finds
Defendant’s response to Plaintiff’s RFPs and Special Interrogatories are
legally insufficient.
As
the court in Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare
Consultants noted,
“If the propounding party proceeds
with the motion, …the trial court has the discretion to rule on the motion. The
trial court might compel responses without objection if it finds no legally
valid responses have been provided to one or more interrogatories… it
might treat the motion as one under section 2030.300 and either determine that
further answers are required, or order the propounding party to "meet
and confer" (§ 2030.300, subd. (b)) and file a separate statement (Cal.
Rules of Court, rule 3.1020(a)(2), (c)); or it might take the motion off
calendar, thereby requiring the propounding party to file a motion under
section 2030.300.”
(148 Cal.App.4th
at pp. 408-409.)
Further,
the Court notes that while
Defendant has provided verified responses to Plaintiff’s discovery requests,
the responses are untimely. Responses are to be
served within 30 days after personal service. (Code Civ. Proc., § 2030.260,
subd. (a).) Here, responses should have been served by or before October 30,
2023. Noting that Plaintiff’s counsel’s declaration states that no extensions
were given to the Defendant, Defendant served its response almost four months
after Plaintiff’s discovery request was initially served.
Accordingly based on the above, Plaintiff’s requests to
compel responses to Plaintiff’s RFPs and Special Interrogatories are GRANTED.
B. Sanctions
The Code of Civil Procedure section 2030.290(c) provides
in relevant part that,
“The court shall impose a monetary sanction under [Section
2023.010] against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel a response to interrogatories, 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(c).) CCP section 2031.300(c) similarly provides the same
remedy when a party fails to respond to a demand for production of documents. (Code
Civ. Proc., § 2031.300(c).) A court may still award sanctions for the failure
to timely respond to discovery request despite an opposing party’s attempt to
serve tardy responses after the motion has been filed. (Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 CA4th at
410-411.)
As mentioned above, the Court finds
the Defendant’s responses to be tardy and a misuse of the discovery process.
Moreover, Defendant does not provide any explanation or otherwise to show that
it acted with substantial justification or that other circumstances would make
the issuance of sanctions unjust. Thus, the Court finds that sanctions are
warranted in this case.
Plaintiff prays for the Court to
issue monetary sanctions in the amount of $1,572.75 per motion representing three
hours in attorney time spent preparing and arguing the motion at a rate of
$500.00 per hour plus $72.75 in court fees. The Court finds the amount unreasonable considering the
similarities and simplicity of the motions and replies. Therefore, the Court
awards sanctions in the total amount of $1,645.50 for two hours spent preparing
the motions at a rate of $500 per hour, plus one hour for the appearance fee,
and $145.50 in court fees.
III. Conclusion
Plaintiff Creditors Adjustment Bureau’s Motion to Compel
Responses to Plaintiff’s First Set of Special Interrogatories is GRANTED.
Plaintiff’s Motion to Compel Responses to Plaintiff’s
First Demand for Identification, Production, Inspection and Copying of
Documents and Other Things is GRANTED.
Plaintiff’s Motion for Sanctions is GRANTED, in part, in
the total amount of $1,645.50.
DEFENDANT IS ORDERED TO PROVIDE CODE COMPLIANT, OBJECTION
FREE RESPONSES, TO PLAINTIFF’S SPECIAL INTERROGATORY NO. 16 WITHIN TWENTY (20)
DAYS FROM NOTICE OF THIS COURT’S ORDER.
DEFENDANT IS FURTHER ORDERED TO RESPOND TO PLAINTIFF’S
FIRST SET OF DEMAND FOR IDENTIFICATION, PRODUCTION, INSPECTION, AND COPYING OF
DOCUMENTS AND OTHER THINGS WITH CODE COMPLIANT, OBJECTION-FREE VERIFIED
RESPONSES WITHIN TWENTY (20) DAYS FROM NOTICE OF THIS COURT’S ORDER.
DEFENDANT IS ADDITIONALLY ORDERED TO PAY PLAINTIFF SANCTIONS
IN THE AMOUNT OF $1,645.50 WITHIN THIRTY (30) DAYS FROM NOTICE OF THIS COURT’S ORDER.
Moving party is ordered to give
notice.
Discovery
and all other trial related deadlines are to comport with the new trial date.