Judge: Melvin D. Sandvig, Case: 20CHCV00081, Date: 2023-03-29 Tentative Ruling
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Case Number: 20CHCV00081 Hearing Date: March 29, 2023 Dept: F47
Dept. F47
Date: 3/29/23
TRIAL DATE: 6/12/23
Case #20CHCV00081
MOTION TO
COMPEL
Motion filed on 3/3/23.
MOVING PARTY: Plaintiff Antonio Jauregui
RESPONDING PARTY: Defendant Hector Jauregui
NOTICE: ok
RULING:
This action concerns a dispute regarding real property
located at 15710 Larkspur Street in Sylmar, California.
On 12/19/22, Plaintiff Antonio Jauregui (Plaintiff)
served, by email, Defendant Hector Jauregui (Defendant) with Form
Interrogatories, Set 1, and Requests for Production of Documents, Set 1). (Plaintiff’s Ex.1, 2). When no responses were timely received, on
1/30/23, Plaintiff sent a meet and confer letter requesting responses, without
objection, by 2/14/23. (Plaintiff’s
Ex.3). When no responses were received,
on 3/3/23, Plaintiff filed and served the instant motion seeking an
order compelling Defendant to provide responses, without
objection, to Plaintiff’s Form Interrogatories, Set 1, and Requests for Production
of Documents, Set 1. Additionally,
Plaintiff requests sanctions in the amount of $2,405.00.
On 3/16/23, Defendant filed and served an opposition to
the motion indicating that responses to the discovery were timely prepared;
however, Defendant’s attorney inadvertently failed to send them to Plaintiff’s
counsel. (See Keshishian Decl.
¶6). The opposition indicates that upon
receiving the instant motion, Defendant’s counsel realized the responses were
never sent and verified responses were served on 3/16/23. (Opposition, p.3:19-21; Keshishian Decl.
¶7). However, copies of the responses
are not provided with the opposition.
Additionally, the opposition does not address why defense counsel failed
to address the 1/30/23 meet and confer letter and/or why that letter did not make
counsel realize his mistake in failing to send the responses which were
purportedly timely prepared. (See
Opposition and Keshishian Decl.).
The opposition also indicates that defense counsel
intends to bring a motion to seek relief from waived objections based on the
claim that the failure to timely serve responses was the result of mistake and
excusable neglect. (See
Opposition, p.3:28-p.4:2). No such
motion has been filed or reserved.
Citing outdated authority (i.e., CCP 2030(k) and 2023), the opposition also
argues that sanctions cannot be imposed.
(See Opposition, p.4:15-21).
CCP 2030(k) and CCP 2023 became inoperative in 2005. In fact, if properly requested, “[t]he court
may award sanctions under the Discovery Act in favor of a party who files a
motion to compel discovery, even though no opposition to the motion was filed,
or opposition to the motion was withdrawn, or the requested discovery was
provided to the moving party after the motion was filed.” CRC 3.1348(a).
However, in this case, Plaintiff failed to properly
request sanctions. CCP 2023.040
provides:
“A request for a sanction shall, in
the notice of motion, identify every person, party, and attorney against whom
the sanction is sought, and specify the type of sanction sought. The notice of
motion shall be supported by a memorandum of points and authorities, and
accompanied by a declaration setting forth facts supporting the amount of any
monetary sanction sought.”
Here, the notice of motion fails to identify against whom
the sanctions are sought. (See
Notice of Motion, p.2:4-6).
Additionally, the amount of sanctions is excessive in that it includes
time to review the opposition and draft a reply. (See Martinez Decl. ¶9). No reply has been filed.
If Plaintiff has received the verified responses Defendant’s
counsel indicates were served on 3/16/23, the request to compel responses is
moot. If Plaintiff is not satisfied with
the responses, he must make motions to compel further responses. If such responses have not been received,
Defendant is ordered to serve verified responses, without objections, within 15
days. As noted above, Defendant has not
yet properly moved for or supported a request for relief from waiver of
objections. In either case, Plaintiff’s
request for sanctions is denied for the reasons set forth above (i.e., not
properly noticed).
If the issues presented by this motion have been resolved
between the parties based on the service of responses on 3/16/23 and Plaintiff
does not intend to proceed with the hearing on the motion, the Court will set
an order to show cause as to why sanctions should not be imposed against
Plaintiff’s counsel, Mark S. Martinez, for failure to immediately notify the
court that the matter will not be heard on the scheduled date. See CRC 2.30(b); CRC 3.1304(b).
The Court notes that Plaintiff has improperly combined
two motions (re: form interrogatories and requests for production of documents)
into one motion. In the future, separate
motions must be filed for each discovery vehicle at issue (i.e., a separate
motion for a motion to compel further responses to form interrogatories, a
separate motion for a motion to compel further responses to special
interrogatories, a separate motion for a motion to compel further responses to
requests for production of documents, a separate motion for a motion to compel
further responses to requests for admissions).
The Court further notes that Plaintiff has failed to
bookmark the declaration and exhibits submitted in support of the motion. (See CRC 3.1110(f)(4); (5/3/19 First
Amended General Order Re Mandatory Electronic Filing for Civil). In the future, the parties must comply with
such requirements or risk their papers not being considered, a continuance so
that papers may be re-submitted in compliance with the requirements and/or the
imposition of sanctions.