Judge: Lisa R. Jaskol, Case: 21STCV32439, Date: 2023-09-28 Tentative Ruling

Case Number: 21STCV32439    Hearing Date: September 28, 2023    Dept: 28

        Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On September 1, 2021, Plaintiffs Judith Harrison (“Harrison”) and Sara Nicholle filed this action against Defendants Bestway Sandwiches, Inc. (“Bestway”), U-Haul Business Consultants, Inc., U-Haul Co. of California, Pedro Ponce Nazario (“Nazario”), and Does 1-50 for motor vehicle negligence and general negligence. 

On December 3, 2021, Bestway and Nazario filed an answer. 

On August 31, 2023, Harrison filed motions to compel discovery responses and for sanctions to be heard on September 28, 2023. On September 14, 2023, Bestway filed an opposition. On September 20, 2023, Harrison filed a reply. 

Trial is currently scheduled for March 21, 2024. 

PARTIES’ REQUESTS 

Harrison requests that the Court grant the motions to compel discovery responses and order sanctions. 

Bestway requests that the Court deny the motions and deny the request for sanctions. 

LEGAL STANDARD 

          A.   Inspection demand 

       “Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response.”  (Code Civ. Proc., § 2031.260, subd. (a).)  

“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.” 

(Code Civ. Proc., § 2031.300.) 

          B.   Interrogatories 

“Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.”  (Code Civ. Proc., § 2030.260.)  

“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).” 

(Code Civ. Proc., § 2030.290.) 

          C.   Discovery sanctions 

          “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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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., § 2023.030, subd. (a).) 

“Misuses of the discovery process include, but are not limited to . . . 

* * *

“(d) Failing to respond or to submit to an authorized method of discovery.” 

(Code Civ. Proc., § 2023.010, subd. (d).) 

DISCUSSION

  On July 11, 2023, Harrison served a request for production of documents, set two, and special interrogatories, set two, on Bestway.  Responses were due August 15, 2023.  Bestway did not serve responses by August 15, 2023.  Harrison did not receive responses prior to filing these motions on August 31, 2023. 

In its opposition to the motions, Bestway states it did not provide timely responses due to a “snafu in the defense office.”  Bestway also argues that Harrison did not give Bestway time to provide late responses, and did not make a reasonable and good faith effort to meet and confer, before filing these motions.  Bestway argues: “On August 17, 2023, [Harrison's] counsel sent a meet & confer email to the defense counsel requesting an update as to when [Harrison] should expect to receive [Bestway's] verified responses to the subject discovery. Before [Bestway's] counsel could respond, [Harrison] filed a Motion to Compel responses requesting sanctions of $460.00 for the motion to compel production of documents, and $860.00 for the motion to compel responses to special interrogatories.” 

          Bestway does not explain why its counsel could not respond to Harrison’s counsel’s meet and confer email between August 17, 2023 and August 31, 2023, when Harrison filed these motions.  The Court finds that Harrison acted appropriately in attempting to meet and confer and, when two weeks went by without a response, filing these motions.[1]

           Bestway served responses to Harrison's discovery, without objections, on September 13, 2023.  Therefore, the discovery issues are moot.  Nonetheless, Harrison is entitled to sanctions because Bestway’s misuse of the discovery process required Harrison to file these motions. 

For the motion to compel responses to the request for production, Harrison requests $460 based on (1) a $60 filing fee, (2) at least one-half hour of attorney time preparing the moving papers, and (3) one-half hour of attorney time preparing a reply brief and appearing for the hearing.  Counsel’s billing rate is $400 per hour.  The Court grants sanctions of $260 for this motion based on one hour of attorney time at a reasonable rate of $200 per hour plus one filing fee. 

For the motion to compel responses to special interrogatories, Harrison requests $860 in sanctions based on (1) a $60.00 filing fee, (2) at least one hour of attorney time preparing the moving papers, and (3) one hour of attorney time preparing a reply brief and appearing for the hearing.  Counsel’s billing rate is $400 per hour.  The Court grants sanctions of $260 for this motion based on one hour of attorney time at a reasonable rate of $200 per hour plus one filing fee. 

CONCLUSION 

The Court DENIES AS MOOT Plaintiff Judith Harrison’s motion to compel responses to the request for production of documents. 

The Court DENIES AS MOOT Plaintiff Judith Harrison’s motion to compel responses to the special interrogatories. 

The Court GRANTS Plaintiff Judith Harrison’s requests for sanctions on her motions to compel discovery responses.  Defendants Bestway Sandwiches, Inc. and its counsel are ordered to pay Plaintiff Judith Harrison $520 in sanctions by October 30, 2023. 

Moving party is ordered to give notice of this ruling. 

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

[1]        Harrison was not, however, required to meet and confer with Bestway before filing the motions.  (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶¶ 8:1141, p. 8F-59, 8:1486, p. 8H-36.)