Judge: Michael E. Whitaker, Case: 20STCV21407, Date: 2022-10-10 Tentative Ruling

Case Number: 20STCV21407    Hearing Date: October 10, 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. 

NOTE:  2 TENTATIVE RULINGS BELOW

TENTATIVE RULING - NO. 1

MOTION

            Plaintiff Julie Woodbury (“Plaintiff”) moves the Court to compel the appearance of Defendants Dean W. McIntyre and Sally A. McIntyre (“Defendants”) for deposition.  Plaintiff  and Defendants request monetary sanctions.  Defendants oppose the motion and Plaintiff replies to the opposition.     

ANALYSIS

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450, subd. (a).)

Here, after attempts to proceed with depositions of Defendants, Plaintiff served on June 9, 2022 third-amended deposition notices on Defendants.  (See Declaration of Julie Lim, ¶¶ 3-14, Exhibit 10.)  Thereafter, Defendants served on Plaintiff objections to the third-amended deposition notices, contending that Defendants’ depositions were unilaterally set and would not proceed until Plaintiff was first deposed.  (See Declaration of Julie Lim, ¶ 15, Exhibit 11.)  Plaintiff then served fourth-amended deposition notices on Defendants, setting the deposition for Dean McIntyre on July 28, 2022, and the deposition for Sally McIntyre for July 29, 2022. 

The Court notes Plaintiff filed and served the instant motion on July 13, 2022  -- fifteen and sixteen days before Defendants were noticed to appear for their respective depositions on July 28, 2022 and July 29, 2022.  Moreover, the record is devoid of any sufficient, competent evidence regarding whether or not Defendants appeared for deposition as set forth in the fourth-amended deposition notices.  (See Declarations of Julie Lim filed with the opening memorandum of points and authorities and filed with the reply to Defendants’ opposition.) 

Accordingly, the Court denies without prejudice Plaintiff’s motion to compel the depositions of Defendants as procedurally defective.  And because the Court did not reach the merits of the motion, the Court declines to award monetary sanctions to either party.  Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.

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 - NO. 2

MOTIONS

            Plaintiff Julie Woodbury (Plaintiff) moves to compel responses from Defendants Dean W. McIntyre and Sally A. McIntyre (collectively Defendants) to: (1) Form Interrogatories, set one (FROG); (2) Special Interrogatories, set one (SROG); and (3) Demand for Production of Documents, set one (RPD).  Plaintiff seeks monetary sanctions in connection with the motions.  Defendants opposes the motions.

            Preliminarily, the Court finds that Plaintiff filed one motion to compel Defendants’ responses to the FROG and SROG and one motion to compel Defendants’ responses to the RPD.  Instead, Plaintiff should have filed one motion as to each Defendant and discovery request propounded for a total of six motions.  The Court will therefore order Plaintiff to pay an additional $240 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, Plaintiff served the subject discovery requests on Defendants on March 10, 2022, via overnight courier.  Defendants’ responses were thus due by April 13, 2022.  As of the filing date of the motions, Plaintiff had not received responses from Defendants.  Accordingly, the Court finds that Defendants have failed to serve timely response to the FROGs, SROGs, and RPDs.

In opposition, Defendants argue Plaintiff’s motions are moot because Defendants provided verified discovery responses to the subject discovery requests on June 7, 2022. (Declaration of Sima Jonoobi, ¶ 14.)  Defendants do not advance a copy of the responses; however, Plaintiff has not filed a reply to the opposition disputing whether Defendants served the responses to the subject discovery requests.  Accordingly, the Court finds Plaintiff’s motions to be moot.   

Although the Court finds Plaintiff’s motions to be moot, the question of sanctions nevertheless remains before the Court. In opposition, Defendants argue two points.

First, Defendants argue sanctions should be denied because of Plaintiff’s failure to meet and confer with Defendants prior to filing.  The moving party is not required to show a reasonable and good faith attempt to resolve the matter informally where the party upon whom discovery requests have been served fails to serve a timely response. (Code Civ. Proc., §§ 2030.290, 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App.4th 390, 411.)

Second, counsel for Defendants claims substantial justification for serving late responses to the discovery requests at issue. Defendants’ prior counsel transferred the case to Defendants’ current counsel in April / May of 2022 for handling.  But counsel for Defendants did not receive the file until May 10, 2022.  (See Declaration of Sima Jonoobi, ¶ 2.)  As such, the Court finds Defendants acted with substantial justification, making the imposition of monetary sanctions unjust under the circumstances. 

CONCLUSION AND ORDER

Therefore, the Court denies Plaintiff’s motions to compel responses to the FROG, SROG, and RPD as moot and denies Plaintiff’s requests for monetary sanctions.

Further, the Court orders Plaintiff to pay an additional $240 in filing fees to the Clerk of the Court on or before October 31, 2022.  

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