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

 

ADRIAN BERMUDEZ, an individual,

 

                                            Plaintiff,

vs.

 

LUZ ANGEL PINZON, an individual,

 

                                            Defendants.

 

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Case No.: 22AHCV00870

 

 

[TENTATIVE] ORDER DENYING AS MOOT PLAINTIFF’S FOUR DISCOVERY MOTIONS

 

Date:   April 6, 2023

Time:  8:30 a.m.

Dept.:  P

 

            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

 

 



[1] No other proof of service of the summons and complaint has ever been filed.