Judge: Lisa R. Jaskol, Case: 23STCV29158, Date: 2024-10-02 Tentative Ruling

Case Number: 23STCV29158    Hearing Date: October 2, 2024    Dept: 28

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

BACKGROUND 

On November 29, 2023, Plaintiffs Laviyon Myers (“Laviyon Myers”) and Sheryl Myers (“Sheryl Myers”), as individuals and as successors-in-interest of The Estate of Dennis Myers, Deceased, filed this action against Defendants Chase Talape Tacanay (“Tacanay”), 7- Eleven, Inc. (“7-Eleven”), and Does 1-25 for wrongful death (assault and battery), wrongful death (negligent hiring, training, and retention), and survival action (Code Civ. Proc., § 377.60). 

On March 6, 2024, Tacanay filed an answer. 

On April 16, 2024, the Court granted the parties’ stipulated request (1) to strike without prejudice the prayer for punitive and exemplary damages against 7-Eleven contained in the complaint's prayer for relief number 4 and (2) to strike the prayer for attorney fees against all defendants in paragraphs 23 and 32 of the complaint. 

On May 28, 2024, 7-Eleven filed an answer. 

On August 13, 2024, Plaintiff amended the complaint to include Defendant La Brea 37227 Inc as Doe 1. 

On September 4, 2024, 7-Eleven filed a motion to compel the responses of Laviyon Myers and Sheryl Myers to form interrogatories, set one, and for sanctions.  The motion was set for hearing on October 2, 2024.  On September 30, Plaintiffs’ counsel filed a late declaration opposing the motion. 

PARTIES’ REQUESTS 

7-Eleven asks the Court to compel Plaintiffs’ responses to form interrogatories, set one, and to impose sanctions. 

Plaintiffs ask the Court to deny the motion. 

LEGAL STANDARD 

          Code of Civil Procedure section 2030.290 provides in part: 

“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. . . .” 

(Code Civ. Proc., § 2030.290.)  

DISCUSSION 

On June 3, 2024, 7-Eleven served form interrogatories, set one, on Plaintiffs.  7-Eleven contends that Plaintiffs did not serve timely responses and had not served responses by the time 7-Eleven filed this motion.  (Derflinger dec. ¶ 6.) 

Plaintiffs’ counsel asserts, in his opposing declaration, (1) Plaintiffs’ counsel learned “on or about August 2024” that Sheryl Myers had passed away (Ogbogu dec.¶ 2), (2) Sheryl Myers passed away while 7-Eleven’s discovery requests were “pending” (Ogbogu dec. ¶ 3), (3) Plaintiffs’ counsel informed 7-Eleven’s counsel of Sheryl Myers’ death (Ogbogu dec. ¶ 5), and (4) on August 8, 2024 – before 7-Eleven filed the motion to compel – Plaintiffs’ counsel served Laviyon Myers’s verified responses to the form interrogatories.  (Ogbogu dec. ¶ 6.)  Plaintiff’s counsel has attached a copy of Laviyon Myers’ verified responses to the form interrogatories to his declaration.  Plaintiffs’ counsel also states that he is “currently waiting to receive the certified copy of [Sheryl Myers’] death certificate before filing a motion for a successor plaintiff under CCP section 377.30, et seq.” (Ogbogu dec. ¶ 11.) 

7-Eleven has not filed a reply disputing Plaintiffs’ counsel’s contention that he served Laviyon Myers’ verified responses to the form interrogatories before 7-Eleven filed its motion to compel.  

The Court denies 7-Eleven’s motion to compel as moot. 

CONCLUSION 

The Court DENIES as moot Defendant 7- Eleven, Inc.’s motion to compel the responses of Plaintiffs Laviyon Myers and Sheryl Myers to form interrogatories, set one, and 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.