Judge: Lee S. Arian, Case: 20STCV49589, Date: 2023-12-19 Tentative Ruling
Case Number: 20STCV49589 Hearing Date: December 19, 2023 Dept: 27
Fatemeh Azima v. Rolling Hills Plaza, LLC, et al.
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Tuesday,
December 19, 2023 |
CASE NUMBER: 20STCV49589
Motions
–
(1)
Motion to Compel Responses to Form
Interrogatories (Set 2)
(2)
Motion to Compel Responses to Special Interrogatories
(Set 2)
(3)
Motion to Compel Responses to Requests for
Production (Set 2)
TENTATIVE
Background
On December 29, 2020, Plaintiff,
Fatemeh Azima (“Plaintiff”) filed this action against Defendants Rolling Hills
Plaza, LLC (“RHP”) and American Multi-Cinema, Inc. (“AMC”), for (1) general
negligence and (2) premises liability arising from injuries Plaintiff allegedly
sustained when a piece of tiled ceiling on Defendants’ premises broke and hit
Plaintiff on the head and shoulders.
Plaintiff now brings three motions
before the Court:
(1)
Motion to Compel Responses to Form
Interrogatories (Set 2)
(2)
Motion to Compel Responses to Special
Interrogatories (Set 2)
(3)
Motion to Compel Responses to Requests for
Production (Set 2)
(hereinafter,
the “Motions”)
Defendants
oppose all three Motions, and Plaintiff files reply papers.
Discussion
Legal Standard for Compelling Interrogatories
–
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).)
Legal Standard for Compelling Requests for Production –
“If a party
to whom a demand for inspection, copying, testing, or sampling is directed
fails to serve a timely response to it, the following rules shall apply: (a)
The party to whom the demand for inspection, copying, testing, or sampling is
directed waives any objection to the demand, including one based on privilege
or on the protection for work product under Chapter 4…(b) The party making the
demand may move for an order compelling response to the demand. (c) Except as
provided in subdivision (d), the court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a response to a
demand for inspection, copying, testing, or sampling, 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.” (CCP § 2031.300)
“The court
may impose a monetary sanction ordering that one engaging in the misuse of the
discovery process, or any attorney advising that conduct, or both pay the
reasonable expenses, including attorney's fees, incurred by anyone as a result
of that conduct.” (CCP § 2023.030(a).) “Misuses of the discovery process
include, but are not limited to, the following: (d) Failing to respond or to
submit to an authorized method of discovery.” (CCP § 2023.010)
Analysis
Here,
the Declaration of Justin Farahi (“Farahi Dec.”) states that Form
Interrogatories, Special Interrogatories, and Requests for Production of
Documents were all served on September 13, 2023, with a deadline for responses
on October 17, 2023. (Farahi Dec., ¶ 4.) When no responses were received,
Plaintiff’s Counsel reached out via email with a meet and confer letter
providing until November 20, 2023 to respond without any objections. (Id.
at ¶ 5.) No responses were ever received.
In their Opposition Papers to these
discovery requests, as they did in their opposition to the concurrently filed
Motion to Deem Requests for Admissions Admitted, Defendants argue that the
Motion will be moot and that sanctions will be unwarranted because Defendants
“will have already provided substantive verified responses before or by
the hearing date of this Motion…” (Opposition Papers, 2:3-4.) Although this
Motion may be moot if substantial and verified responses are served before the
hearing, Defendants have yet to serve responses as of Plaintiff’s reply brief,
therefore, the Motion is granted. Moreover, 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.)
Sanctions
Plaintiff’s
Counsel provides the following calculations:
·
Counsel’s hourly rate is $400.00 per hour
·
Counsel spent 3 hours preparing this Motion
·
The filing fee for this Motion is $60.00
Accordingly,
the Court will impose sanctions against Defendants and grant sanctions to
Plaintiff in the amount of $1,260.00.
Conclusion
Therefore, Plaintiff’s (1) Motion to
Compel Responses to Form Interrogatories (Set 2), (2) Motion to Compel
Responses to Special Interrogatories (Set 2), and (3) Motion to Compel
Responses to Requests for Production (Set 2) are GRANTED.
Sanctions are imposed against Defendants and granted to Plaintiff in the amount
of $1,260.00.
Motion - Motion to Deem Admitted Requests for Admission
(Set 2)
TENTATIVE
Background
On December 29, 2020, Plaintiff,
Fatemeh Azima (“Plaintiff”), filed this action against Defendants, Rolling
Hills Plaza, LLC (“RHP”) and American Multi-Cinema, Inc. (“AMC”) (collectively,
“Defendants”), for (1) general negligence and (2) premises liability arising
from injuries Plaintiff allegedly sustained when a piece of tiled ceiling on
Defendants’ premises broke and hit Plaintiff on the head and shoulders.
Plaintiff now brings this Motion to
Deem Admitted Requests for Admission (Set 2) (“Motion”) before the Court.
Defendants oppose this Motion, and Plaintiff has submitted a reply.
Discussion
Legal Standard
Code of
Civil Procedure § 2033.250, provides, in pertinent part, that “[w]ithin 30 days
after service of the request for admissions . . . the party to whom the
requests are directed shall serve the original of the response to them on the
requesting party.” A motion to deem admitted requests for admissions lies based
upon a showing of failure to respond timely. (CCP §2033.280(b); Demyer v.
Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, disapproved
on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983.)
Requests for admissions must be deemed admitted where no responses in
substantial compliance was served before the hearing. (CCP §2033.280(c).) As to
motions to deem matters admitted, no meet and confer is required. (Demyer v.
Costa Mesa Mobile Home Estates (1995) 36 Cal. App. 4th 393, 395, overruled
on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 983.
Also see Leach v. Superior Court (1980) 111 Cal.App.3d 902, 904–906, 169
Cal.Rptr. 42 [rejecting argument that state rule of court requiring
informal meet and confer applied to motion where no response at all had been
made to interrogatory requests, reasoning that because objections had been
waived for failure to timely answer, there was “nothing to ‘resolve’ with the
meaning” of the rule)].)
“[A] motion
to have admission requests deemed admitted may not be granted where the record
establishes ... that (1) proposed responses to the requests have been served
prior to the hearing on the motion and (2) such responses are in substantial
compliance with the provisions of section 2033, subdivision (f)(1).” (Tobin
v. Oris (1992) 3 Cal. App. 4th 814, 828, overruled on other grounds by Wilcox
v. Birtwhistle (1999) 21 Cal. 4th 973, 983 n.12.) Courts evaluate tardy
responses to requests for admissions, in toto, to determine whether they
substantially comply with the code, and do not evaluate each individual
response. (St. Mary v. Sup. Ct. (2013) 223 Cal.App.4th 762, 779-80.)
If a party
to whom requests for admission are directed fails to serve a timely response,
the following rules apply:
(a) The party to
whom the requests for admission are directed waives any objection to the
requests, including one based on privilege or on the protection for work
product under Chapter 4 (commencing with Section 2018.010). The court, on
motion, may relieve that party from this waiver on its determination that both
of the following conditions are satisfied:
(1) The party has
subsequently served a response that is in substantial compliance with Sections
2033.210, 2033.220, and 2033.230.
(2) The party's
failure to serve a timely response was the result of mistake, inadvertence, or
excusable neglect.
(CCP § 2033.280)
Analysis
Here,
the Declaration of Justin Farahi (“Farahi Dec.”) states that Request for
Admissions were served on September 13, 2023, with a deadline for responses on
October 17, 2023. (Farahi Dec., ¶ 4.) When no responses were received,
Plaintiff’s Counsel reached out via email with a meet and confer letter
providing until November 20, 2023 to respond without any objections. (Id.
at ¶ 5.) No responses were ever received.
In their Opposition Papers,
Defendants argue that the Motion will be moot and that sanctions will be
unwarranted because Defendants “will have already provided substantive
verified responses before or by the hearing date of this Motion…” (Opposition
Papers, 1:23-24.) Indeed, the Court may not grant this Motion when responses in
substantial compliance have been served before the hearing. (Tobin, supra,
at 828.) However, Defendants have yet to serve responses as of Plaintiff’s
reply brief. Additionally, there is no evidence at this time that Defendants
are yet eligible for relief under CCP § 2033.280(a).
Sanctions
While compliance with a discovery
request prior to a hearing on a motion to compel will make the motion moot as
to responses, the Court can still award sanctions. (Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th
390, 407.) Plaintiff’s Counsel seeks sanctions based on the following calculations
related to bringing the motion to compel:
·
Counsel’s hourly rate is $400.00 per hour
·
Counsel spent 3 hours preparing this Motion
·
The filing fee for this Motion is $60.00
Accordingly,
the Court will impose sanctions against Defendants and grant sanctions to
Plaintiff in the amount of $1,260.00.
Conclusion
Plaintiff’s
Motion to Deem Admitted Requests for Admission (Set 2) is GRANTED.
Sanctions are imposed against Defendants and granted to Plaintiff in the amount
of $1,260.00.
Moving party is ordered to give notice.
Motion – Defendant Simon Roofing and Sheet Metal Corp.’s Motion to
Continue Trial Date and All Corresponding Pre-Trial Deadlines
TENTATIVE
Defendant Simon Roofing and Sheet Metal
Corp.’s Motion to Continue Trial Date and All Corresponding Pre-Trial Deadlines
is GRANTED.
Background
On December 29, 2020, Plaintiff,
Fatemeh Azima (“Plaintiff”), filed this action against Defendants, Rolling
Hills Plaza, LLC (“RHP”) and American Multi-Cinema, Inc. (“AMC”), for (1)
general negligence and (2) premises liability arising from injuries Plaintiff
allegedly sustained when a piece of tiled ceiling on Defendants’ premises broke
and hit Plaintiff on the head and shoulders.
On
September 6, 2023, Plaintiff amended the Complaint to add Simon Roofing and
Sheet Metal Corp. (“Simon Roofing”) as a Defendant in the action. Simon Roofing
was then served on September 11, 2023, nearly 3 years after Plaintiff filed the
initial Complaint.
Simon
Roofing now brings this Motion to Continue Trial (“Motion”), filed on November
21, 2023. The Motion is unopposed.
Discussion
Legal Standard
California
Rules of Court, rule 3.1332, subdivision (c) states that although disfavored,
the trial date may be continued for “good cause,” which includes (without
limitation):
(1) The unavailability of an essential lay or expert
witness because of death, illness, or other excusable circumstances;
(2) The unavailability of a party because of death,
illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of
death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where
there is an affirmative showing that the substitution is required in the
interests of justice;
(5) The addition of a new party if:
(A) The new
party has not had a reasonable opportunity to conduct discovery and prepare for
trial; or
(B) The
other parties have not had a reasonable opportunity to conduct discovery and
prepare for trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential
testimony, documents, or other material evidence despite diligent efforts; or
(7) A significant, unanticipated change in the status
of the case as a result of which the case is not ready for trial.
(Id., Rule 3.1332(c).)¿¿¿
The court
may also consider the following factors: “(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of
trial due to any party; (3) The length of the continuance requested; (4) The
availability of alternative means to address the problem that gave rise to the
motion or application for a continuance; (5) The prejudice that parties or
witnesses will suffer as a result of the continuance; (6) If the case is
entitled to a preferential trial setting, the reasons for that status and
whether the need for a continuance outweighs the need to avoid delay; (7) The
court's calendar and the impact of granting a continuance on other pending
trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all
parties have stipulated to a continuance; (10) Whether the interests of justice
are best served by a continuance, by the trial of the matter, or by imposing
conditions on the continuance; and (11) Any other fact or circumstance relevant
to the fair determination of the motion or application.” (Cal. Rules of Court
3.1332(d).)¿¿ ¿
Code of
Civil Procedure section 2024.050 allows a court to grant leave to complete
discovery proceedings.¿ In doing so, a court shall consider matters relevant to
the leave requested, including, but not limited to: (1) the necessity of the
discovery, (2) the diligence in seeking the discovery or discovery motion, (3)
the likelihood of interference with the trial calendar or prejudice to a party,
and (4) the length of time that has elapsed between previous trial dates.¿
(Code Civ. Proc. § 2024.050.)¿
Analysis
This
Court has previously continued this action. Although continuances are
disfavored, this request presents a different scenario than requests prior. On
September 6, 2023, Plaintiff amended their Complaint to add Simon Roofing as a
Defendant in the action. Simon Roofing was then served on September 11, 2023,
nearly 3 years after Plaintiff filed the initial Complaint.
Simon
Roofing details in their moving papers that with a trial date currently set for
March 5, 2024, they would suffer irreparable harm and be unfairly prejudiced if
the Court does not continue the trial once more. Simon Roofing, having been
recently added, has not had any opportunity to participate in discovery nor
prepare and file a motion for summary judgment, both of which they are
statutorily entitled to do. (See CCP §§ 2017.010 and 437c respectively.) California
Rules of Court, rule 3.1332, subdivision (c) specifically states that the
addition of a new party who has had no reasonable opportunity to conduct
discovery qualifies as good cause for a continuance. Therefore, as Simon
Roofing has demonstrated good cause, has shown that they would be prejudiced
without a continuance, and the Court seeing no opposition filed, the Motion is
granted.
Conclusion
Accordingly,
Defendant Simon Roofing and Sheet Metal Corp.’s Motion to Continue
Trial Date and All Corresponding Pre-Trial Deadlines is GRANTED.
Moving party is ordered to give notice