Judge: Mark H. Epstein, Case: 22SMCV00114, Date: 2024-03-29 Tentative Ruling

Case Number: 22SMCV00114    Hearing Date: April 12, 2024    Dept: I

This is two motions to compel brought by plaintiff on March 4, 2024.  Defendant filed an untimely opposition on April 8, 2024, essentially saying he was very busy and missed the deadlines but that he has since served responses.  More motions are set for April 19, 2024. The court also notes that there is a motion for summary judgment brought by the defense that is set for April 25, 2024.

The court is not fully satisfied with the argument that defendant was too busy to respond to discovery, and the court is especially dissatisfied with the untimely opposition.  That said, the court has read the response.

The court is inclined to GRANT the motion to compel and require that verified responses, without objection other than privilege, be served within 1 court day.  If the defense believes that the responses already served comply, the defense need not re-serve.  However, if they do not comply (and no further responses are served within the time allotted), then the non-compliance could be deemed a violation of this order.  If no responses to the requests for admission have been served prior to the hearing, then the motion to deem admitted is GRANTED.  If there have been responses to the requests for admission served before today, then this order will still apply but the requests will not be deemed admitted but the defense is ordered to serve verified responses without objection within 1 court day but if the defense believes that the previously served responses comply, they need not be re-served.  If, however, they do not comply and further responses are not served within the time allotted, then in a subsequent motion the failure may be deemed a violation of this order.

As to sanctions, plaintiff is entitled to them.  However, plaintiff never called up the defense and asked about the missing responses, or at least the court has not seen any declaration to that effect.  Plaintiff is correct that it is not required that the moving party meet and confer.  But the court can only award sanctions that are both reasonable and necessary.  The court believes that had plaintiff called the defense, responses would have been forthcoming and the motion could have been avoided.  Therefore, the court will award sanctions in the amount of $10.00 per motion plus the $60.00 filing fee.  The sanctions are payable by defense counsel within 30 days.

A quick final word.  There is a summary judgment motion pending.  The court is concerned that plaintiff will argue that it cannot oppose the motion properly because the discovery was not forthcoming.  The court is not sure of that—it could be that this discovery could not aid plaintiff in an opposition—and it also might depend on just how full and complete the responses are that the defense has served.  But there is a trial coming in six weeks; that does not provide a lot of time for the court to hash out discovery battles, so if plaintiff has a point that it was hindered by a lack of discovery responses, it could prejudice the motion.