Judge: Mark E. Windham, Case: 23STLC07073, Date: 2024-11-07 Tentative Ruling

Case Number: 23STLC07073    Hearing Date: November 7, 2024    Dept: 26

Kerns v. Barikhan, et al.

MOTION TO COMPEL DISCOVERY RESPONSES; SANCTIONS

(CCP §§ 2030, 2031, 2023)

TENTATIVE RULING:  

Plaintiff Bennett Kerns’ Motion to Compel Discovery Responses and Request for Sanctions, is DENIED WITHOUT PREJUDICE TO CORRECTING ALL OF THE DEFECTS NOTED HEREIN.

ANALYSIS:

On November 3, 2023, Plaintiff Bennett Kerns (“Plaintiff”), representing himself, filed this action against Hikmat Barikhan aka Kenny Kahn, individually and dba Westwood Auto Center (“Defendant”), alleging conversion. The action arises out of Defendant’s servicing of Plaintiff’s automobile in May 2023. (Compl. ¶¶ 7-13.) Plaintiff seeks damages for inadequate notice, overcharges, and loss in market value of the automobile. (Compl., p. 4.) Defendant filed an Answer on January 8, 2024 generally denying all allegations in the Complaint.

On August 30, 2024, Plaintiff filed the instant Motion for Order Compelling Response to Discovery and for Monetary Sanctions. Specifically, Plaintiff requests Defendant to provide initial responses to Special Interrogatories, Set No. One, and Request for Production of Documents, Set No. One.  (Motion, p. 2.)  Plaintiff also requests Monetary Sanctions or, in the alternative, Terminating Sanctions. (Motion, p. 3.) No opposition has been filed to date.

Discussion

The Motion is defective in a number of respects. As an initial matter, Plaintiff’s proof of service on the Motion is defective as it indicates “2023” as the year and does not include the specific day of service. (Motion, p. 6.) Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.)

Next, Plaintiff’s motion is three motions improperly combined into one: (1) a Motion to Compel Responses to Special Interrogatories, Set One, (2) a Motion to Compel Responses to Request for Production, Set One, and (3) Request for Terminating Sanctions. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of filing fees deprives the Court of filing fees it is otherwise entitled to collect. Statutorily required filing fees are jurisdictional and “it is mandatory for the court clerks to demand and receive statutorily required filing fees.” (See Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.) Plaintiff’s motion, therefore, cannot be heard in full until two additional motion reservations are made and the corresponding filing fees are paid.

Third, the Court notes that the Motion has not attached copies of the discovery requests served on Defendant, nor copies of the proofs of service showing the manner in which the discovery requests were served. Simply declaring the requests were served is insufficient to demonstrate compliance with the service requirements and corresponding deadlines for discovery requests and responses.

Finally, the Motion fails to cite current legal authority in support of the requests to compel responses. The Motion points to Code of Civil Procedure section 2023, 2030, and 2031, none of which are existing provisions of the Discovery Code.

Conclusion

Based on the foregoing, Plaintiff Bennett Kerns’ Motion to Compel Discovery Responses and Request for Sanctions, is DENIED WITHOUT PREJUDICE TO CORRECTING ALL OF THE DEFECTS NOTED HEREIN.

Court clerk to give notice.