Judge: Lisa R. Jaskol, Case: 22STCV35073, Date: 2023-12-07 Tentative Ruling
Case Number: 22STCV35073 Hearing Date: February 26, 2024 Dept: 28
Having considered the moving, opposing, reply, and supplemental papers, the Court rules as follows.
BACKGROUND
On November 3, 2022, Plaintiff Johnny Lorenzo Perez (“Plaintiff”) filed this action against Defendants Daniel Wreszin (“Defendant”), City of Los Angeles, and Does 1-20 for motor vehicle tort, general negligence, premises liability, and dangerous conditions of public property.
On March 10, 2023, Defendant filed an answer and a cross-complaint against Cross-Defendants Roes 1-20 for total indemnity, implied partial indemnity, declaratory relief, and equitable apportionment.
On June 9, 2023, Defendant filed motions to compel Plaintiff’s responses to (1) demand for identification and inspection of documents, set one, and for sanctions (2) special interrogatories, set one, and for sanctions, and (3) form interrogatories, set one, and for sanctions. The motions were set for hearing on October 25, 2023. The Court continued the hearings to December 12, 2023. On November 29, 2023, Plaintiff filed oppositions. On December 5, 2023, Defendant filed replies.
On September 21, 2023, Defendant filed a motion to deem admitted matters specified in requests for admission and request for sanctions, set to be heard on December 7, 2023. On November 27, 2023, Plaintiff filed an opposition.
On December 7, 2023, the Court continued the hearing on all four pending motions to February 26, 2024 and ordered Defendants’ counsel to file and serve a supplemental declaration stating when he served the requests for admission and providing a copy of the email used to effectuate service. The Court also ordered Plaintiff’s counsel to submit a responsive declaration.
On February 13, 2024, Defendant’s counsel filed a declaration stating that he electronically served the requests for admission, set one, on August 18, 2023. Defendant’s counsel provided a copy of the email sent to Plaintiff’s counsel with the attached requests for admission. In addition, Defendant submitted a supplemental brief arguing that Plaintiff’s response to the requests for admission was not in substantial compliance with Code of Civil Procedure section 2033.220. Plaintiff also submitted supplemental briefing.
Trial is currently scheduled for May 2, 2024.
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. Requests for admission
Code of Civil Procedure section 2033.220 provides:
“(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.
“(b) Each answer shall:
(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.
“(2) Deny so much of the matter involved in the request as is untrue.
“(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.
“(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”
(Code Civ. Proc., § 2033.220.)
Code of Civil Procedure section 2033.280 provides:
“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.”
(Code Civ. Proc., § 2033.280.)
DISCUSSION
A. Motions to compel discovery responses
On March 10, 2023, Defendant served (1) demand for identification and inspection of documents, set one, (2) special interrogatories, set one, and (3) form interrogatories, set one, on Plaintiff.
Plaintiff did not provide timely responses and had not provided responses by the time Defendant filed the motions to compel responses.
In opposition to the motions, Plaintiff’s counsel argued that Plaintiff was unavailable. Counsel submitted proposed discovery responses verified by Plaintiff’s mother.
At the February 26, 2024 hearing, Plaintiff's counsel stated that he had served verified responses to the demand for identification and inspection of documents, set one, special interrogatories, set one, and form interrogatories, set one, on Defendant earlier in February. Although Defendant's counsel argued the responses were not code-compliant, Defendant's counsel did not deny receiving the responses.
Accordingly, the Court denies as moot Defendant's motions to compel responses to the demand for identification and inspection of documents, set one, special interrogatories, set one, and form interrogatories, set one, and Defendant's related requests for sanctions.
B. Motion to deem admitted matters specified in requests for admission
As noted above, Defendant’s counsel has submitted evidence that he electronically served requests for admission on Plaintiff’s counsel on August 18, 2023. Defendant’s counsel provided a copy of the email sent to Plaintiff’s counsel with the attached requests for admission.
Plaintiff did not serve timely responses and had not served responses by the time Defendant filed this motion.
On November 23, 2023, before the December 7, 2023 hearing on Defendant's motion, Plaintiff served objections to the requests for admission. Defendant argues that Plaintiff’s response to the requests for admission are not in substantial compliance with Code of Civil Procedure section 2033.220.
On February 22, 2024, Plaintiff submitted a verified response to the requests for admission.
The Court finds that Plaintiff’s responses substantially comply with Code of Civil Procedure section 2033.220. Therefore, the Court denies the motion to deem admitted matters specified in the requests for admission.
Sanctions are mandatory. (Code Civ. Proc., § 2033.280, subd. (c).) Defendant requests $568.65 based on three hours of attorney time at a rate of $169.00 per hour and one $61.65 filing fee. The Court grants $399.65 in sanctions based on two hours of attorney time and one filing fee.
CONCLUSION
The Court DENIES Defendant Daniel Wreszin’s motion to compel Plaintiff Johnny Lorenzo Perez’s responses to the demand for identification and inspection of documents, set one.
The Court DENIES Defendant Daniel Wreszin’s motion to deem admitted matters specified in requests for admission, set one.
The Court DENIES Defendant Daniel Wreszin’s requests for sanctions on the motion to compel responses to demand for identification and inspection of documents, set one, the motion to compel responses to special interrogatories, set one, and the motion to compel responses to form interrogatories, set one.
The Court GRANTS Defendant Daniel Wreszin’s request for sanctions on the motion to deem admitted matters specified in requests for admission, set one, and orders Plaintiff Johnny Lorenzo Perez and his counsel to pay Defendant Daniel Wreszin $399.65 by March 25, 2024.
Moving party is to give notice of the Court’s ruling.
Moving party is to file proof of service of the Court’s ruling within five days.