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

BACKGROUND 

On June 10, 2022, Plaintiff Todd Rigg (“Plaintiff”) filed this action against Defendants Sam Morris (“Morris”), Xiaohu Gan (“Gan”), Ling Zhang (“Zhang”), and Does 1-100 for assault, battery, intentional infliction of emotional distress, negligence, and negligent hiring, supervision and retention. 

On February 21, 2023, Gan and Zhang filed an answer and a cross-complaint against Cross-Defendants Morris and Does 1-100 for full or partial equitable indemnification and declaratory relief. 

On June 8, 2023, Gan and Zhang (“Moving Defendants”) filed motions (1) to compel Plaintiff’s responses to request for production of documents, set one, (2) to compel Plaintiff’s responses to special interrogatories, set one, and (3) to compel Plaintiff’s responses to form interrogatories.  The motions were set for hearing on November 8, 2023.  On October 26, 2023, Plaintiff filed oppositions. 

Trial is currently scheduled for April 19, 2024. 

PARTIES’ REQUESTS 

Moving Defendants request that the Court compel Plaintiff to serve full and complete verified responses without objections to the request for production of documents, set one, special interrogatories, set one, and form interrogatories. 

Plaintiff requests that the Court deny the motions. 

LEGAL STANDARD 

A.   Inspection demand 

        “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 

“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, the following: 

* * *

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

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

DISCUSSION 

On February 21, 2023, Moving Defendants served a request for production of documents, set one, special interrogatories, set one, and form interrogatories on Plaintiff.  Plaintiff’s responses were due on May 16, 2023 based on Moving Defendants’ agreement to extend the time to respond. According to Moving Defendants, Plaintiff had not served responses by the time Moving Defendants filed these motions on June 8, 2023. 

Plaintiff asserts that he served discovery responses on June 8, 2023, the same day Moving Defendants filed the motions. Plaintiff’s oppositions include declarations from Plaintiff’s counsel stating that true and correct copies of Plaintiff’s discovery responses are attached to the declarations as “Exhibit 4.”  However, no exhibits are attached to the declarations. 

The Court continues the hearing and orders Plaintiff and Moving Defendants (or their counsel) to file supplemental declarations stating whether and when Plaintiff served discovery responses.  Plaintiff is ordered to attach copies of the discovery responses, including proofs of service, to his supplemental declaration. 

CONCLUSION 

The Court CONTINUES the hearing to a date to be provided.  No later than five days prior to the continued hearing, Plaintiff Todd Rigg and Defendants Xiaohu Gan and Ling Zhang (or their counsel) are ordered to file supplemental declarations stating whether and when Plaintiff Todd Rigg served responses to the discovery served by Defendants Xiaohu Gan and Ling Zhang.  Plaintiff Todd Rigg (or his counsel) is to attach copies of the discovery responses, including proofs of service, to his supplemental declaration. 

Moving parties are ordered to give notice of this ruling. 

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

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