Judge: Lisa R. Jaskol, Case: 21STCV43814, Date: 2024-04-02 Tentative Ruling
Case Number: 21STCV43814 Hearing Date: April 2, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On November 30, 2021, Plaintiff Rosemarie Paradis Gross (“Plaintiff”) filed this action against Defendants Macerich Cerritos, LLC, Macerich Cerritos Holdings, LLC, Manager Nick, and Does 1-50 for general negligence and premises liability.
On May 26, 2022, Plaintiff filed a first amended complaint against Defendants Macerich Cerritos, LLC, Macerich Cerritos Holdings, LLC, Manager Nick, Macerich Property Management Company, LLC, The Macerich Company, Interstate Cleaning Corporation, and Does 1-50 for general negligence and premises liability.
On November 3, 2022, Defendants Interstate Cleaning Corporation, Macerich Cerritos, LLC (for itself and erroneously sued and served as Macerich Cerritos Holdings, LLC), and Macerich Management Company (erroneously sued and served as Macerich Property Management Company, LLC, and The Macerich Company) (“Defendants”) filed an answer to the first amended complaint.
On February 27, 2024, Defendant Macerich Cerritos, LLC (“Macerich Cerritos”) filed motions to compel Plaintiff’s responses to requests for production of documents, set one, special interrogatories, set one, and form interrogatories, set one, and for sanctions. The motions were set to be heard on April 2, 2024. Plaintiff did not file oppositions.
On March 4, 2024, Defendants filed a motion to continue the trial and related dates. The motion was set to be heard on April 2, 2024. Plaintiff did not file an opposition.
Trial is currently scheduled for August 21, 2024.
PARTIES’ REQUESTS
Macerich Cerritos asks the Court to compel Plaintiff’s responses to requests for production of documents, special interrogatories, and form interrogatories and to award sanctions.
Defendants ask the Court to continue the trial and related dates.
LEGAL STANDARD
A. Inspection demand
Code of Civil Procedure section 2031.300 provides:
“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
Code of Civil Procedure section 2030.290 provides:
“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. Motion to continue trial
California Rules of Court, rule 3.1332 provides:
“(a) Trial dates are firm
“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.
“(b) Motion or application
“A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.
“(c) Grounds for continuance
“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:
“(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.
“(d) Other factors to be considered
“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:
“(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, rule 3.1332.)
DISCUSSION
A. Macerich Cerritos’s motions to compel discovery responses
On November 3, 2022, Macerich Cerritos served requests for production of documents, set one, special interrogatories, set one, and form interrogatories, set one, on Plaintiff.
On January 25, 2023, Plaintiff served unverified responses to the requests for production of documents and form interrogatories. Plaintiff has not served responses to the special interrogatories.
In Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651 (Food 4 Less), the Court of Appeal held that when a party serves a timely response to a request for production of documents that includes both objections and fact-specific responses, “[t]he omission of the verification in the portion of the response containing fact-specific responses merely renders that portion of the response untimely and therefore only creates a right to move for orders and sanctions under [former] subdivision (k) of [Code of Civil Procedure] section 2031 as to those responses but does not result in a waiver of the objections made.” (Food 4 Less, supra, 40 Cal.App.4th at pp. 657-658, fn. omitted.) However, the statute “could result in a waiver of objections if the party fails to file any response within the statutory time period.” (Id. at p. 658.)
The Court of Appeal concluded in Food 4 Less that the defendants served timely discovery responses. As a result, “[t]he lack of verification did not render their objections untimely” and the trial court “erred in finding defendants had waived their objections and in imposing monetary sanctions upon defendants.” (Food 4 Less, supra, 40 Cal.App.4th at p. 658.)
Here, Macerich Cerritos does not squarely address whether Plaintiff’s January 25, 2023 responses to the requests for production of documents and form interrogatories were timely. The Court finds that Macerich Cerritos has not carried its burden of proving that Plaintiff’s January 25, 2023 unverified responses to the requests for production of documents and form interrogatories were untimely. As a result, Macerich Cerritos has not shown that Plaintiff waived her objections to these discovery requests.
Macerich Cerritos has shown that Plaintiff did not serve a response to the special interrogatories. Therefore, Plaintiff has waived her objections to the special interrogatories.
The Court grants Macerich Cerritos’s motions to compel in part and orders Plaintiff to serve verifications to her responses to the requests for production of documents and form interrogatories by April 15, 2024. The Court denies Macerich Cerritos's request to order that Plaintiff has waived her objections to the requests for production of documents and form interrogatories.
The Court grants Macerich Cerritos's motion to compel responses to the special interrogatories and orders Plaintiff to serve verified, code-compliant responses to the special interrogatories, without objections, by April 15, 2024.
B. Macerich Cerritos’s sanctions requests
Citing Code of Civil Procedure section 2030.290, Macerich Cerritos asks the Court to award $720.00 on its motion to compel responses to requests for production of documents, $1,440.00 on its motion to compel responses to special interrogatories, and $720.00 on its motion to compel responses to form interrogatories.
Under Code of Civil Procedure sections 2030.290 and 2031.300, sanctions are available against parties, persons, and attorneys who unsuccessfully make or oppose a motion to compel a response to interrogatories or requests for production. (See Code Civ. Proc., §§ 2030.290, subd. (c) [interrogatories], 2031.300, subd. (c) [demand for inspection].) Plaintiff has not made or opposed a motion to compel responses to interrogatories or requests for production. Therefore, sanctions are not available under these statutes.
Macerich Cerritos also relies on the statutory definition of misuse of the discovery process. (Code Civ. Proc, § 2023.010.) However, “[Code of Civil Procedure section 2023.010 is] ‘definitional’ and monetary sanctions may not be imposed based solely on [the statute]. Monetary sanctions may be imposed only if authorized by some other provision of the Discovery Act.” (Cal. Practice Guide, supra, ¶ 8:1900, p. 8M-2; see Code Civ. Proc., § 2023.030 [court may impose sanctions for misuse of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or other provision of this title”]; City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 498-504.)
The Court denies Macerich Cerritos’s request for monetary sanctions.
C. Defendants’ motion to continue trial and related dates
The Court has considered Defendants’ motion to continue the trial and related dates and finds good cause to continue the trial for two months, not six months as Defendants request. The Court continues the trial to October 21, 2024. The final status conference, discovery, and related dates will be based on the new trial date.
CONCLUSION
The Court GRANTS IN PART Defendant Macerich Cerritos, LLC’s motion to compel Plaintiff Rosemarie Paradis Gross’s responses to requests for production of documents, set one, and orders Plaintiff Rosemarie Paradis Gross to serve a verification by April 15, 2024. In all other respects, the Court DENIES the motion.
The Court GRANTS IN PART Defendant Macerich Cerritos, LLC’s motion to compel Plaintiff Rosemarie Paradis Gross’s responses to form interrogatories, set one, and orders Plaintiff Rosemarie Paradis Gross to serve a verification by April 15, 2024. In all other respects, the Court DENIES the motion.
The Court DENIES Defendant Macerich Cerritos, LLC’s requests for sanctions.
The Court GRANTS in part the motion of Defendants Interstate Cleaning Corporation, Macerich Cerritos, LLC, and Macerich Management Company to continue the trial and related dates. The Court continues the trial to October 21, 2024 at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Court continues the Final Status Conference to October 7, 2024 at 10:00 a.m. in Department 28 of the Spring Street Courthouse. Discovery and related dates will be based on the new trial date.
Moving parties are ordered to give notice of these rulings.
Moving parties are ordered to file the proof of service of these rulings with the Court within five days.