Judge: Michael E. Whitaker, Case: 21STCV26613, Date: 2022-10-12 Tentative Ruling

Case Number: 21STCV26613    Hearing Date: October 12, 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

MOTIONS

            Defendants Juan Carlos Olvera and American Way Management Inc. (collectively, Defendants) move to compel verified responses from Plaintiff Adrien Aaron Garcia to: (1) Form Interrogatories, set one (FROG); (2) Special Interrogatories, set one (SROG); and (3) Demand for Production and Inspection of Documents, set one (RPD). Defendants seek monetary sanctions. Plaintiff opposes the motions and Defendants reply to the oppositions.

            Preliminarily, the Court notes that Plaintiff failed to advance copies of proofs of service for the verifications of the discovery responses at issue. However, Defendants do not dispute service of the verifications and indicate in their replies the verifications were served on Defendants on May 19, 2022.

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, Defendants served the subject discovery requests on Plaintiff on January 7, 2022, via mail and electronically. Plaintiff’s responses were thus due by February 9, 2022. On February 8, 2022, Plaintiff served Defendants with responses to the subject discovery requests, however they were unverified.  “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1998) 206 Cal.App.3d 632, 636.) In his oppositions, Plaintiff submits that he served verifications of the subject discovery responses on Defendants in May of 2022. Accordingly, although Plaintiff served untimely verifications regarding his responses to the FROG, SROG, and RPD, the Court finds Defendants’ motions moot.

Notwithstanding, the issue of sanctions for Plaintiff’s failure to timely serve verifications pertaining to the February 8, 2022 responses to the subject discovery requests remains before the Court. (Code Civ. Proc., § 2033.280, subd. (c); see also Cal. Rules of Court, rule 3.1348(a) [“The 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”].) 

Defendants seek monetary sanctions in connection with the motions. In opposition, Plaintiff argues that he had substantial justification for belatedly serving the verifications concerning the discovery responses due to his deployment with the United States Marines Corps. The Court finds Plaintiff’s explanation to be a substantial justification, per Code of Civil Procedure section 2031.300, and finds that the imposition of monetary sanctions against Plaintiff would be unjust under the circumstances.

CONCLUSION AND ORDER

Therefore, the Court denies Defendants’ motions to compel responses to the FROG, SROG and RPD.  Defendants shall provide notice of the Court’s ruling and file a proof of service of such.