Judge: Mark A. Young, Case: 23SMCV00086, Date: 2023-11-30 Tentative Ruling
Case Number: 23SMCV00086 Hearing Date: November 30, 2023 Dept: M
CASE NO.: 23SMCV00086
MOTION: Motion
to Compel Initial Discovery Responses
HEARING DATE: 11/30/2023
Legal
Standard
Where
there has been no timely response to a Code of Civil Procedure (CCP) section 2031.010
inspection demand, the demanding party must seek an order compelling a
response. (CCP § 2031.300.) Failure to timely respond waives all objections,
including privilege and work product. Thus, unless the party to whom the demand
was directed obtains relief from waiver, he or she cannot raise objections to
the documents demanded. There is no deadline for a motion to compel responses.
Likewise, for failure to respond, the moving party need not attempt to resolve
the matter outside court before filing the motion. Where the motion seeks only
a response to the inspection demand, no showing of "good cause" is
required.
If a party to whom interrogatories are directed fails to
serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (CCP § 2030.290(b).) The
statute contains no time limit for a motion to compel where no responses have
been served. All that need be shown in the moving papers is that a set of
interrogatories was properly served on the opposing party, that the time to
respond has expired, and that no response of any kind has been served. (Leach
v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.)
Pursuant to CCP section 2033.280(b), a 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). “Failure to timely
respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA
must ‘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 § 2023.010 et seq.” (CCP, § 2033.280(b).) The court
“shall” grant the motion to deem RFA admitted, “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.” (CCP, § 2033.280(c).)
Analysis
Plaintiff Shannon Marie Worley moves
to compel Defendant’s initial responses to: 1) Special Interrogatories, Set
One; 2) Requests for Admissions, Set One; 3) Requests for Production, Set One;
and 4) Form Interrogatories, Set One. Plaintiff also requests monetary
sanctions in the respective amounts of $556.65, $624.15. $961.65 and $1,546.65
against Defendant and her counsel of record.
Plaintiff demonstrates that she served
the above discovery on June 29, 2023. (Villaneda Decls., Exs. A.) On August 1,
2023, Defendant served unverified responses to each item of discovery. (Id.,
Exs. B.) At an IDC concerning this discovery, the Court allowed for the filing
of the instant motions to compel initial responses, since verifications were
never served. Defendant opposes on the grounds that verifications were not
required.
When a party provides discovery responses
containing anything other than objections, the party must sign the responses
under oath. For instance, CCP section 2030.250(a) provides that the “party to
whom the interrogatories are directed shall sign the response under oath unless
the response contains only objections.” (Emphasis added.) Similar
requirements are present for responses to inspection demands and requests for
admission. (See CCP § 2031.250; 2033.210.)
Here, Defendant failed to provide
verifications as required for the responses to Special Interrogatories, Set
One, Requests for Production, Set One, and Form Interrogatories, Set One.
Defendant’s responses to each of these discovery requests contained substantive
responses and objections. Such responses did not contain only objections,
and therefore required verification. Defendant argues that a lack of
verification for a hybrid response does not render the objections untimely. However,
Defendant’s cited authority only stands for the proposition that a failure to
verify a hybrid response does not result in a waiver of the objections
made, but still creates a right to move for initial responses as to the
unverified substantive responses. (Food 4 Less Supermarkets, Inc. v.
Superior Ct., (1995) 40 Cal. App. 4th 651, 657–58 [“if the response is
served within the statutory time period, that portion of the response must be
considered timely notwithstanding the lack of verification. The omission of the
verification in the portion of the response containing fact-specific responses
merely renders that portion of the response untimely and therefore only creates
a right to move for orders and sanctions under subdivision (k) of section 2031
as to those responses…”].) Critically, an unverified response to discovery is no
response at all and would not trigger the compel further procedures. (See Allen-Pacific,
Ltd. V. Superior Court (1997) 57 Cal.App.4th 1546, 1551.)
Thus, Defendant has not responded to the SROGs, FROGs, and RPDs. Given
Defendant’s failure to respond, the motions to compel responses to the SROGs,
FROGs, and RPDs are GRANTED.
However, Defendant served objection only
responses to the Requests for Admissions. (Hill Dec., Ex. G.) Defendant’s
objection only response to the RFAs on August 1, 2023, did not require
verifications. Thus, the Court was
incorrect—Plaintiffs are required to move to compel further responses to RFAs.
Given that this was, in part, the Court’s error, the Court will deny the RFA
motion without prejudice and allow Plaintiffs leave to file a compel further as
to these RFAs.
As to the granted motions,
Plaintiff requests sanctions in the amount of $556.65, $961.65 and $1,546.65
against Defendant and her counsel of record. Monetary sanctions are mandatory,
unless the imposition of sanctions would be unjust or the party subject to the
sanctions acted with substantial justification. (CCP §§ 2030.290(c).)
Defense counsel argues that
sanctions should not be imposed because they have been diligently attempting to
obtain Defendant’s cooperation in providing verifications. The Court finds this
a sufficient excuse as to defense counsel. This does not excuse Defendant’s
unwillingness to participate in discovery. Thus, the Court will grant sanctions
against Defendant only.
The Court also finds the requested
fees somewhat excessive and unreasonable in light of the record and relative
simplicity of the motions. Accordingly, Plaintiff’s request for sanctions is
GRANTED in the reduced total amount of $1,980.00, inclusive of costs, against Defendant.
Sanctions to be paid to Plaintiff’s counsel within 30 days.