Judge: Michael E. Whitaker, Case: 21STCV28724, Date: 2023-03-01 Tentative Ruling

Case Number: 21STCV28724    Hearing Date: March 1, 2023    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 Lilly Hong Lau (Defendant) moves to compel responses from Plaintiffs Eduardo Perez-Benitez, Eduardo Perez-Martinez, and Cezar Aguilar Martinez (collectively, Plaintiffs) to Request for Production of Documents, set one (RPD).  Defendant seeks monetary sanctions in connection with the motion.  Plaintiffs oppose the motion.

Preliminarily, the Court finds that Defendant filed one motion to compel Plaintiffs’ responses to the RPDs.  Instead, Defendant should have filed a motion as to each RPD served  Plaintiffs, for a total of three motions.  The Court will therefore order Defendant to pay an additional $120 in filing fees, at $60 per motion.  (Gov. Code, § 70617, subd. (a).)

ANALYSIS

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 RPDs on Plaintiffs on February 11, 2022, electronically.  Plaintiffs’ responses were thus due by March 16, 2022.  As of the filing date of the motion, Defendant had not received responses from Plaintiffs.  Accordingly, the Court finds that Plaintiffs failed to serve timely responses to the RPD.

In opposition, Plaintiffs argue that the motion to compel as to Plaintiffs Eduardo Perez-Benitez (Benitez) and Eduardo Perez-Martinez (Martinez) are moot, as they have served their responses to the RPDs on Defendant on January 4, 2023.  Although Plaintiffs have not attached any documentation evidencing such responses have been served, Defendant has failed to contest Plaintiffs’ assertions in reply.  Accordingly, the Court finds Defendant’s motions regarding Martinez and Benitez to be moot.

Although the Court finds Defendant’s motions as to Martinez and Benitez to be moot, the question of sanctions nevertheless remains before the Court. “[P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].”  (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407.)  Even if the untimely response “does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses…the trial court retains the authority to hear the motion.”  (Id. at pp. 408-409.)  This rule gives “an important incentive for parties to respond to discovery in a timely fashion.”  (Id. at p. 408.)  If “the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions,” the trial court may “deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.”  (Id. at p. 409; 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”].)

Defendant requests monetary sanctions in connection with the motion.  In opposition, Martinez and Benitez argue that monetary sanctions are inappropriate because their delay in responding to Defendant’s discovery requests was the result of attorney inadvertence.  The Court finds that Martinez and Benitez have failed to meet their burden in establishing they acted with substantial justification when serving untimely discovery responses.  As such, the Court finds Plaintiffs’ failure to timely respond to the RFAs to be an abuse of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subd. (d), 2031.300, subd. (c).) 

Accordingly, the Court will impose monetary sanctions against each Plaintiff and Plaintiffs’ counsel of record, Avant Law Corporation, in the amount of $481.50, which represents 2 hours of attorney time to prepare the moving papers, and attend the hearing, at $210 per hour, and the motion filing fee of $61.50. 

CONCLUSION AND ORDER

Therefore, the Court grants in part Defendant’s motion to compel responses to the RPD per Code of Civil Procedure section 2031.300 as to Plaintiff Cezar Aguilar Martinez, and orders Plaintiff Cezar Aguilar Martinez to serve verified responses to the RPD, without objections, within 30 days of notice of the Court’s orders

The Court denies in part Defendant’s motions to compel responses to the RPD as to Martinez and Benitez as moot.   

Further, the Court orders each Plaintiff and Plaintiffs’ counsel of record, Avant Law Corporation, jointly and severally to pay monetary sanctions in the amount of $481.65 to Defendant, by and through counsel for Defendant, within 30 days of notice of the Court’s orders.

Further, the Court orders Defendant to pay an additional $120 in filing fees to the Clerk of the Court on or before March 29, 2023.

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