Judge: Lisa R. Jaskol, Case: 21STCV47077, Date: 2023-09-06 Tentative Ruling

Case Number: 21STCV47077    Hearing Date: March 5, 2024    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On December 27, 2021, Plaintiff April Lee Gaston (“Plaintiff”) filed this action against Defendant Denny’s Inc. (“Defendant”) for negligence and premises liability. 

On September 6, 2023, the Court granted Defendant’s motion to strike (1) Plaintiff’s punitive damage claim, (2) the complaint’s request for $80,000.00 in damages, and (3) the exhibits attached to the complaint with leave to amend.  Plaintiff did not file an amended complaint. 

On October 15, 2023, Defendant filed an answer. 

On January 19, 2024, Defendant filed motions to compel Plaintiff’s responses to request for production, set one, and form interrogatories, set one.  The motions were set to be heard on March 5, 2024.  Plaintiff has not filed oppositions.  On February 28, 2024, Defendant filed replies stating that Plaintiff had not provided any discovery responses. 

Trial is currently scheduled for October 7, 2024. 

PARTY’S REQUESTS 

Defendant asks the Court (1) to compel Plaintiff to provide responses to Defendant’s requests for production, set one, (2) to compel Plaintiff to provide responses to Defendant’s form interrogatories, set one, and (3) to impose sanctions on Plaintiff. 

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.)   

DISCUSSION 

On August 9, 2023, using electronic mail, Defendant served request for production, set one, and form interrogatories, set one, on Plaintiff.  On November 3, 2023, using United States mail, Defendant again served request for production, set one, and form interrogatories, set one, on Plaintiff. 

Plaintiff did not provide timely responses to the request for production or the form interrogatories and had not provided responses by the time Defendant filed replies on February 28, 2024. 

The Court grants Defendant’s motion to compel Plaintiff to respond to Defendant’s request for production, set one, and orders Plaintiff to provide verified code-compliant responses without objections and to produce the documents, electronically stored information, and/or other things requested without objections by April 4, 2024. 

The Court grants Defendant’s motion to compel Plaintiff to respond to Defendant’s form interrogatories, set one, and orders Plaintiff to provide verified code-compliant responses to the form interrogatories without objections by April 4, 2024. 

Defendant requests $1,000.00 in sanctions for each motion.  However, the Court may award sanctions against “any party, person, or attorney who unsuccessfully makes or opposes a motion to compel [responses to requests for production or interrogatories]."  (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)  Plaintiff did not make or oppose a motion to compel.  The Court denies Defendant’s requests for sanctions. 

CONCLUSION 

The Court GRANTS Defendant Denny’s Inc.’s motion to compel Plaintiff April Lee Gaston to respond to request for production, set one, and orders Plaintiff April Lee Gaston to provide verified code-compliant responses without objections and to produce the documents, electronically stored information, and/or other things requested without objections by April 4, 2024.  

The Court GRANTS Defendant Denny’s Inc.’s motion to compel Plaintiff April Lee Gaston to respond to form interrogatories, set one, and orders Plaintiff April Lee Gaston to provide verified code-compliant responses to the form interrogatories without objections by April 4, 2024. 

The Court DENIES Defendant Denny’s Inc.’s requests for sanctions. 

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.