Judge Lisa R. Jaskol, Case Number: 19STCV30200, Date: 2023-12-05 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. 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 you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.    If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.

                            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court. This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.

        If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.

On August 26, 2019, Plaintiff Donnovan Lewery filed this action against Defendants Club DB Lounge, Hayk Gevorkyan, Frontline Protection, Inc. (“Frontline”), and Does 1-25 for negligent hiring, retention, and supervision, premises liability, assault, battery, and intentional infliction of emotional distress.

On October 7, 2019, Defendants and Cross-Complainants Club DB Lounge (also referred to as Downey’s Billiard LLC dfba Club db Lounge) and Hayk Gevorkyan (also referred to as Hayk Geborkyan) filed a general denial and a cross-complaint against Cross-Defendants Frontline and Roes 1-100 for indemnity.

On February 14, 2020, the clerk entered Frontline’s default on Plaintiff’s complaint. On January 18, 2023, the Court set aside Frontline’s default. On January 19, 2023, Frontline filed a general denial.

On August 23, 2022, the Court dismissed the cross-complaint of Club DB Lounge and Hayk Gevorkyan without prejudice at their request.

On June 29, 2023, Plaintiff filed motions to compel Frontline’s responses to demand for production of documents, set one, special interrogatories, set one, form interrogatories, set one, and for sanctions, to be heard on December 7, 2023.

On June 30, 2023, Plaintiff filed a motion to deem admitted the matters specified in requests for admission, set one, served on Frontline and for sanctions, to be heard on December 5, 2023.

On December 5, 2023, the Court observed that Frontline’s counsel E. Steve Najera had filed a substitution of attorney form on July 11, 2023 purporting to substitute Frontline, as a party representing itself, in place of counsel. The Court found that the substitution was ineffective because “a corporation is not a natural person, and therefore cannot appear in an action in propria persona. It can appear only through counsel.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 2:112, p. 2-53 (Cal. Practice Guide).)

The Court continued the hearing on the motion regarding requests for admission, scheduled for December 5, 2023, and the three motions to compel scheduled for December 7, 2023, to January 3, 2024 and ordered counsel for Frontline to appear at the continued hearing. On January 3, 2024, the Court continued the hearing to February 26, 2024 at 1:30 p.m.

On February 16, 2024, Frontline filed oppositions to the requests for sanctions.

On February 26, 2024, at 12:27 p.m., Frontline’s counsel filed a supplemental declaration stating that Frontline sent verifications of its discovery responses to opposing counsel on February 23, 2024. Frontline’s responses to Plaintiff’s demand for production of documents, special interrogatories, and requests for admission were attached to counsel’s supplemental declaration with proofs of service showing service on February 23, 2024. (No responses to the form interrogatories were attached.) The verifications attached to the discovery responses, however, were dated February 26, 2024.

At the hearing on February 26, 2024, Frontline’s counsel stated that he had served the discovery responses on February 23, 2024. Although counsel for Defendant Club DB Lounge stated that he had received the responses, Plaintiff’s counsel stated that he had not received the responses.

The Court continued the hearing to March 4, 2024 and ordered the parties to file any supplemental declarations by March 1, 2024. The Court has received no additional filings.

Plaintiff asks the Court (1) to compel Frontline’s responses to demand for production of documents, set one, special interrogatories, set one, and form interrogatories, set one, (2) to deem admitted matters specified in requests for admission, set one, and (3) to award sanctions.

“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 (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 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.

“(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

“(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. If a party then fails to obey the order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

“(d) (1) Notwithstanding subdivision (c), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as a result of the routine, good faith operation of an electronic information system.

“(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.”

“If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply:

“(a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, 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 2030.210, 2030.220, 2030.230, and 2030.240.

“(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

“(b) The party propounding the interrogatories may move for an order compelling response to the interrogatories.

“(c) 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 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. If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

“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.

“(b) The 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).

“(c) The court shall make this order, 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. It 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.”

On May 22, 2023, Plaintiff served (1) demand for production of documents, set one, (2) special interrogatories, set one, (3) form interrogatories, set one, and (4) requests for admission, set one, on Frontline.

Frontline did not provide timely responses and had not provided responses by the time Plaintiff filed these motions.

Frontline now asserts that it served discovery responses on February 23, 2024. Counsel’s February 26, 2024 supplemental declaration included Frontline’s responses to Plaintiff’s demand for production of documents, special interrogatories, and requests for admission with attached proofs of service dated February 23, 2024. (Counsel’s supplemental declaration did not include responses to the form interrogatories.) However, the verifications of these responses are dated February 26, 2024. Frontline has not shown that it served the February 26, 2024 verifications on Plaintiff’s counsel, or that it did so before the February 26, 2024 hearing. Counsel’s February 26, 2024 supplemental declaration does not include a proof of service.^{^[1]}

“Where a verification is required [citation], an unverified response is ineffective; it is the equivalent of no response at all.” (Cal. Practice Guide, supra, ¶ 8:1113, p. 8F-54.) Without responses to his discovery requests, Plaintiff is entitled to prevail on his motions.

The Court grants Plaintiff's motion to compel responses to the demand for production of documents and orders Frontline to provide verified code-compliant responses without objections and to produce the documents, electronically stored information, and/or other things requested without objections by March 25, 2024.

The Court grants Plaintiff's motion to compel responses to the special and form interrogatories orders Frontline to provide verified code-compliant responses without objections by March 25, 2024.

The Court grants Plaintiff’s motion to deem admitted matters specified in Plaintiff’s requests for admission. The Court deems the matters admitted.

Plaintiff requests $811.65 in sanctions for each motion based on three hours of attorney time at $250.00 per hour and one $61.65 filing fee. Counsel spent one hour to prepare each motion and anticipated spending one hour to review each opposition and prepare each reply and another hour to attend the hearing.

The Court grants $1,246.60 in sanctions based on four hours of attorney time and four filing fees.

The Court GRANTS Plaintiff Donnovan Lewery’s motion to compel Defendant Frontline Protection, Inc.’s responses to demand for production of documents, set one, and orders Defendant Frontline Protection, Inc. to provide verified code-compliant responses without objections and to produce the documents, electronically stored information, and/or other things requested without objections by March 25, 2024.

The Court GRANTS Plaintiff Donnovan Lewery’s motion to compel Defendant Frontline Protection, Inc.’s responses to special interrogatories, set one, and orders Defendant Frontline Protection, Inc. to provide verified code-compliant responses to the special interrogatories without objections by March 25, 2024.

The Court GRANTS Plaintiff Donnovan Lewery’s motion to compel Defendant Frontline Protection, Inc.’s responses to form interrogatories, set one, and orders Defendant Frontline Protection, Inc. to provide verified code-compliant responses to the form interrogatories without objections by March 25, 2024.

The Court GRANTS Plaintiff Donnovan Lewery’s motion to deem admitted matters specified in requests for admission, set one, and deems the matters admitted.

The Court GRANTS Plaintiff Donnovan Lewery’s requests for sanctions and orders Defendant Frontline Protection, Inc. and its counsel to pay Plaintiff Donnovan Lewery $1,246.60 March 25, 2024.

Moving party is ordered to file the proof of service of this ruling with the Court within five days.

[1] In addition, the verifications do not explain why the signer, Philip Hernandez, was authorized to sign the verifications on Frontline’s behalf. (See Cal. Practice Guide, supra, ¶ 8:1105, p. 8F-51.)