Judge: Michael E. Whitaker, Case: 19STCV18047, Date: 2022-07-27 Tentative Ruling

Case Number: 19STCV18047    Hearing Date: July 27, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendant Lynda Marie Johnson moves to compel responses from Plaintiff Delores Banuelos to: (1) Request for Production of Documents, set one (“RPD”) and  (2) Form Interrogatories, set one (“FROG”).  Plaintiff opposes the motion.

The Court notes that Defendant filed one motion to compel Plaintiff’s responses to the RPD and FROG. Instead, Defendant should have filed separate motions as to each discovery request for a total of two motions. The Court will therefore order Defendant to pay an additional $60 in filing fees. (Gov. Code, § 70617, subd. (a).)

ANALYSIS

Pursuant to Code of Civil Procedure section 2030.290, “[i]f a party to whom interrogatories are directed fails to serve a timely response . . . [t]he party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or the protection for work product under Chapter 4 (commencing with Section 2018.010.  . . .   [and] The party propounding the interrogatories may move for an order compelling response to the interrogatories.”  (Code Civ. Proc., § 2030.290, subds. (a)-(b).) 

            Similarly, under Code of Civil Procedure section 2031.300, “[i]f a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it . . . [t]he party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010.  . . .   [and] The party making the demand may move for an order compelling response to the demand.  (Code Civ. Proc., § 2031.300, subds. (a)-(b).)  

Here, Defendant served the subject discovery requests on Plaintiff on January 25, 2021, by mail. Plaintiff’s responses were thus due by March 1, 2021.  As of the filing date of the motion, Defendant has not received responses from Plaintiff.  Accordingly, the Court finds that Plaintiff has failed to serve timely responses to the RPD and FROG. 

In opposition, Plaintiff advances the declaration of counsel for Plaintiff, Armen M. Tashjian (“Tashjian”).  Tashjian states that Plaintiff’s son informed Tashjian’s office on June 2, 2022, that Plaintiff had passed away.  (Declaration of Armen M. Tashjian, ¶ 2.)  Tashjian further represents that he will be discussing the course of this case with Plaintiff’s heirs after July 15, 2022, when Tashjian returns from a pre-planned vacation.  (Declaration of Armen M. Tashjian, ¶ 5.)  Tashjian does not state the date of Plaintiff’s death nor any reason why Plaintiff failed to serve his discovery responses before his death.

“A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc., § 377.21.) Death of a party occurring before judgment, makes it improper to render judgment for or against the deceased party without first taking the procedural step of substituting the executor or administrator. (See Grappo v. McMills (2017) 11 Cal.App.5th 996, 1007.) 

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to compel Plaintiff’s responses to the RPD and FROG per Code of Civil Procedure sections 2030.290 and 2031.300, and orders Plaintiff to serve verified responses to the RPD and FROG, without objections, within 60 days of notice of the Court’s orders.

In addition, the Court orders Defendant to pay an additional $60 in filing fees to the Clerk of the Court on or before  July 19, 2022.  As such, the Court sets an Order to Show Cause re: Proof of Payment of the fees as ordered by the Court on July 26, 2022 at 8:30 A.M. in Department 32.

Defendant shall provide notice of the Court’s orders and file a proof of service of such.