Judge: Margaret L. Oldendorf, Case: 22AHCV00870, Date: 2023-04-06 Tentative Ruling
Case Number: 22AHCV00870 Hearing Date: April 6, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
This personal injury action stems
from an auto accident. Plaintiff Adrian Bermudez propounded four sets of
discovery on Defendant Luz Angel Pinzon at a time when service of the summons
and complaint had not been properly completed. Service of the discovery
violated the 10-day hold on all discovery at the outset of litigation.
Bermudez’s motions to compel responses to that discovery and for an order
deeming matters admitted are therefore denied. All requests for monetary
sanctions are also denied.
II. LEGAL
STANDARD
There is a “discovery hold” at the outset of litigation.
A plaintiff is permitted to serve interrogatories, requests for production, and
requests for admission “at any time that is 10 days after the service of the
summons on, or appearance by, that party, whichever occurs first” without leave
of court. Code Civ. Proc. §§ 2030.020(b); 2031.020(b); and 2033.020(b).
III. ANALYSIS
The undisputed evidence here is that Bermudez served form
and special interrogatories, inspection demands, and requests for admission on
Pinzon prior to the expiration of the 10-day hold.
On October 31, 2022, Bermudez filed a proof of service of
the summons and complaint. It showed that Pinzon had been served by substituted
service on October 25, 2022, and that the summons and complaint were mailed the
next day. If service had been made at the correct address it would have been
complete 10 days after mailing, or on November 5, 2022. Code Civ. Proc.
§415.20(a). However, because service was made at an incorrect apartment number
(Apartment 10, and not Apartment 8), it was never properly completed. As a
result, the 10-day hold never began to run.[1]
On November 21, 2022, Bermudez served the four sets of
discovery on Pinzon. Because Bermudez had not yet been served with the summons
and complaint, service of the discovery was not authorized. (Compounding the
problem is the fact that the discovery was also mailed to the incorrect
apartment number.) Pinzon failed to respond. On December 5, 2022, counsel for
Bermudez (Steven L. Mazza) wrote to Pinzon’s insurer about the outstanding
discovery. Although it is not entirely clear from the briefing, it appears that
this may be when Pinzon first learned of the discovery.
On December 22, 2022, Bermudez took Pinzon’s default. On
February 2, 2023, the default was set aside per stipulation and order.
Pinzon filed an answer February 3, 2023, thereby
appearing in the action and triggering the 10-day period for service of
discovery. There is no indication in the briefing that discovery was re-served,
however.
Plaintiff filed her discovery motions on March 1, 2023.
On March 15, 2023, Pinzon served verified responses,
without objections, to all four sets of discovery.
The record of events here demonstrates two important
things:
(1) service of the discovery
was unauthorized, as it violated the 10-day hold;
(2) service of the discovery
was invalid as it was mailed to the wrong address.
Given these defects, Bermudez’s motion to compel
responses must be denied. The Court cannot compel Pinzon to provide responses
to improperly propounded discovery. And,
in any event, Pinzon has already responded.
Bermudez urges that Pinzon’s failure to challenge the
improper service of the summons and complaint “vitiates” her argument that
discovery was served in violation of the 10-day rule. Reply at 2:14-17. This
argument is not supported by any legal authority.
Bermudez also argues that once Pinzon appeared in the
action on February 3 and her counsel was provided with courtesy copies of the
discovery on February 8, Pinzon was under a duty to respond to the discovery
and had no excuse not to. Reply at 2:26-3:6. Again, no legal authority is
offered in support of this argument.
For all these reasons, the motion is denied. Bermudez’s requests for monetary sanctions
are also denied.
Pinzon’s request for monetary sanctions against Bermudez are
denied as well. Code Civ. Proc. §§2030.290(c) and 2031.300(c) provide for
monetary sanctions against a party, person, or attorney who unsuccessfully
makes or opposes a motion to compel responses to interrogatories or inspection
demands, “unless [the court] finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.” The unusual and confusing circumstances here do not
weigh in favor of monetary sanctions against Bermudez or his attorney. Arguably,
as suggested in the reply, these motions were what compelled Pinzon to provide
verified responses.
Code Civ. Proc. §2033.280(c), governing requests for
admissions, contains a slightly different standard. It provides, “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.”
Here, as there was no failure to timely respond to requests for admission, sanctions
in favor of Bermudez are not mandated. And, there is no provision for sanctions
in favor of a party who successfully opposes such a motion.
IV. CONCLUSION
AND ORDER
The four motions by Bermudez for orders compelling Pinzon
to provide verified responses without objections to form and special
interrogatories, inspection demands, and to deem matters admitted, are denied.
All requests for monetary sanctions are denied.
Defendant is ordered to give notice of this ruling.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT