Judge: Lee W. Tsao, Case: 22NWCV00323, Date: 2023-12-05 Tentative Ruling

Case Number: 22NWCV00323    Hearing Date: December 5, 2023    Dept: C

NICHELLE HARTON vs NANCY J. JACOBS

Case No. 22NWCV00323

Hearing Date: 12/05/23 @ 9:30am

#2

Tentative Ruling

     I.        Plaintiff Nichelle Harton’s (“Plaintiff”) Motion to Compel Responses to Requests for Production of Documents (Set One) is DENIED as MOOT.

    II.        Plaintiff’s Motion to Compel Responses to Form Interrogatories (Set One) is DENIED as MOOT. 

  III.        Plaintiff’s Motion to Compel Responses to Special Interrogatories (Set One) is DENIED as MOOT. 

 IV.        Plaintiff’s Motion to Deem Admitted the Truth of the Matters Stated in Requests for Admissions (Set One) is DENIED. 

No sanctions.

Opposing party to give notice.

Background

Plaintiff Nichelle Harton (“Plaintiff”), along with her husband and children, lived in a single-family home owned by Defendant Nancy J. Jacobs (“Defendant”). Plaintiff alleges Defendant failed to properly maintain the property, resulting in substandard living conditions.  The operative Second Amended Complaint brings causes of action for (1) Violation of the Fair Employment and Housing; (2) Violation of the Disabled Persons Act, (3) Violation of Civil Code Section 1942.4, (4) Breach of the Implied Warranty of Habitability, (5) Negligence and (6) Negligent Hiring, Supervision and Retention.

On May 24, 2023, Plaintiff propounded Requests for Production (Set One), Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Admissions on Defendant. The deadline for Defendant to respond was June 27, 2023. Defendant failed to serve timely responses.  Plaintiff’s motions followed. 

Discussion

A party may make a demand for production of documents and propound interrogatories without leave of court at any time 10 days after the service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first. (Code Civ. Proc., § 2031.020, subd. (b); Code Civ. Proc., § 2030.020, subd. (b).) The demand for production of documents is not limited by number, but the request must comply with the formatting requirements in Code of Civil Procedure section 2031.030. A party may propound 35 specially prepared interrogatories that are relevant to the subject matter of the pending action and any additional number of official form interrogatories that are relevant to the subject matter of the pending action. (Code Civ. Proc., § 2030.030, subd. (a)(1) - (a)(2).) 

The party whom the request is propounded upon is required to respond within 30 days after service of a demand, but the parties are allowed to informally agree to an extension and confirm any such agreement in writing. (Code Civ. Proc., § 2031.060, subd. (a); Code Civ. Proc., § 2030.060, subd. (a); Code Civ. Proc., § 2031.070, subd. (a) - (b); Code Civ. Proc., § 2030.070, subd. (a) - (b).) 

If a party fails to timely respond to a request for production or interrogatories, the party to whom the request is directed waives any right to exercise the option to produce writings under Code Civ. Proc., § 2030.230, and waives any objection, including one based on privilege or on the protection for work product. (Code Civ. Proc., § 2031.300, subd. (a); Code Civ. Proc., § 2030.290, subd. (a).)  

The party who propounded the discovery request may bring a motion to compel and the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for production of documents or interrogatories, unless the court 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); Code Civ. Proc., § 2030.290, subd. (c).) 

Where there has been no timely response to requests for admissions, a “requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with section 2023.010).”  The court “shall” grant the motion to deem requests for admission admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  (Code Civ. Proc., § 2033.280(c).) 

Here, Plaintiff served discovery requests upon Defendant on May 24, 2023. (Belisle Decl., ¶ 2.) Defendant was required to respond by June 27, 2023 and failed to do so. (Belisle Decl., ¶¶ 3-4.) On June 29, 2023, Plaintiff advised Defendant’s counsel that no responses had been received.  At Defendant’s request, Plaintiff provided additional copies of the discovery.  As of the date the motions were filed (July 14, 2023) Defendant had not served responses. (Belisle Decl., ¶¶ 5-8.)

Defendant’s counsel asserts he first learned of the May 24 discovery requests on June 29 when he was contacted by Plaintiff’s counsel. (Loeck Decl., ¶ 3-4.)  Neither he nor members of his firm received the May 24 discovery requests.  He requested another copy from Plaintiff’s counsel. (Loeck Decl., ¶ 3-4.) Defendant’s counsel advised Plaintiff that Defendant would provide responses based upon the June 29 service date. (Loeck Decl., ¶ 7.) Defendant served verified responses on August 1, 2023. (Loeck Decl., ¶ 10.)  After he served the responses, Defendant’s counsel asked Plaintiff’s counsel to take the motions off calendar as moot, but she refused. (Loeck Decl., ¶ 11.) 

The court determines that Plaintiff’s requests for discovery are moot because Defendant served verified responses before the hearing. 

Sanctions

Misuse of the discovery process constituting conduct subject to sanctions include “failing to respond or to submit to an authorized method of discovery” and “failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery.” (Code Civ. Proc., § 2023.010, subds. (d) and (i).) 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. (Code Civ. Proc., § 2023.030, subd. (a).) All discovery motions require a meet and confer declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.)  

Defendant submits a declaration by Randy Hill, President and CEO of Sage Network, Inc., which provides IT services to defense counsel’s firm. Mr. Hill conducted a search of any emails Defendant received from Plaintiff’s counsel on or about May 24, 2023. (Hill Decl., ¶¶ 11-12.) Mr. Hill discovered an email from Plaintiff’s counsel which was received on May 25, 2023, but it was sent directly to quarantine by Microsoft without being forwarded to Defendant’s counsel. (Hill Decl., ¶¶ 14.) 

Based upon the forgoing, Defendant is relieved of the waiver triggered by Defendant’s failure to provide timely discovery responses.  The court finds that Defendant’s failure to provide timely responses was due to excusable neglect.  Furthermore, the court finds that Defendant acted with substantial justification in opposing Plaintiff’s motions.  Therefore, no sanctions are imposed.  Plaintiff’s counsel is reminded that a reasonable request for an extension of time to respond to discovery requests, such as the one made here by Defendant’s counsel, should ordinarily be granted.