Judge: Michael E. Whitaker, Case: 21STCV38409, Date: 2022-08-09 Tentative Ruling

Case Number: 21STCV38409    Hearing Date: August 9, 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

In the complaint filed on October 19, 2021, Plaintiff Alexandria Barcelo (“Plaintiff”) alleges that she was injured when she was hit in a crosswalk by a motor vehicle driven by Defendant Nixon Stephenson (“Defendant”).  Defendant moves the Court for orders compelling Plaintiff to provide further responses to the following discovery requests:

1. Special Interrogatories, Set 1, Propounded to Defendant

   1. Propounded:  December 22, 2021

   2. Responses:  UNCERTAIN – Defendant failed to attach a copy of the responses with the proof of service to the moving papers.

   3. Motion Filed:  July 18, 2022 (served by electronic service on July 14, 2022)

       

2. Requests for Admission, Set 1, Propounded to Defendant

   1. Propounded:  July 14, 2021

   2. Responses:  UNCERTAIN – Defendant failed to attach a copy of the responses with the proof of service to the moving papers.

   3. Motion Filed:  July 18, 2022 (served by electronic service on July 14, 2022)

       

      Defendant opposes the motions. 

       

      Procedural Requirements

       

                  Informal  Discovery Conference

       

                  Per the Seventh Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective May 16, 2022 (Revised 05/04/2022), ¶ 9E, “PI Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC) . . . The purpose of the IDC is to assist the parties to resolve and/or narrow the scope of discovery disputes.”   

       

                  Here, Defendant scheduled an IDC for June 2, 2022 and served notice of the IDC on Plaintiff.  (See Declaration of Robert J. Dwyer, ¶ 8, Exhibit E; see also Defendant’s Informal Discovery Conference Form filed on April 18, 2022.)  At the June 2, 2022 IDC, counsel for Defendant appeared but counsel for Plaintiff did not.  (See June 2, 2022 Minute Order.) 

       

                  Therefore, the Court finds that Defendant has complied with the Seventh Amended Standing Order. 

       

                  Timeliness of Motions

       

                  A notice of motion to compel further responses must be given within 45 days of the service of the responses, or any supplemental responses, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., §§ 2030.300, subd. (c), 2033.290, subd. (c).)  Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to interrogatories or requests for admission.  (Ibid.; see also Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 683 [“This statute is mandatory and the court may not entertain a belated motion to compel”]; Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [the trial court is without authority to rule on motions to compel further discovery responses that are untimely].) 

       

                  Here, the parties extended the deadline for noticing the motions to compel further discovery responses to 30 days after the IDC.  (See Declaration of Robert J. Dwyer, ¶ 11, Exhibit D.)  As noted above, the IDC was scheduled and held on June 2, 2022.  Thus, per the parties’ agreement, the cutoff date to notice the motions was July 5, 2022.[1] 

       

                  But Defendant did not serve the notices of motion and motions until July 14, 2022, which is beyond the cutoff date agreed to by parties.  Consequently, the Court is without authority to rule on Defendant’s untimely motions. 

       

                  Notwithstanding, in reply, Defendant contends that the motions are timely because  Plaintiff agreed to toll the motion deadline instead of extending the deadline.  The Court finds Defendant’s argument to be disingenuous at best.  In the email from Robert J. Dwyer (“Dwyer”), counsel for Defendant, dated March 10, 2022, Dwyer states in relevant part:  “Please also agree to continue the motion to compel deadline until 30 days after the parties participate in an IDC.”  In response, Sebastian M. Medvei “(Medvei”), counsel for Plaintiff, states in relevant part:  “I agree to toll your motion deadline to 30 days after the IDC.”  Based upon Dwyer’s stated request, the Court finds that Medvei agreed to continue the deadline for the motions to be noticed.  Although Medvei’s choice of the word “toll” was inartful, the Court finds that Dwyer did not seek a tolling of the deadlines under Code of Civil Procedure sections 2030.300 and 2033.290.  Therefore, Defendant cannot used Medvei’s poor word choice to contend the motions are timely when Defendant did not seek a tolling of the deadlines in the first instance. 

       

                  On the other hand, if Defendant insists that Plaintiff agreed to “toll” the applicable motion deadlines, then the Court would find that there was no meeting of the minds and thus no agreement to extend the time for the notices of motion to be served.  If there is no valid and binding agreement, then the cutoff date for the motions would be based upon when Plaintiff initially served her responses to the subject discovery requests.  Under that scenario, the Court would also find Defendant’s motions to be untimely. 

       

      Sanctions

                 

      A trial court may sanction a party for engaging in the misuse of discovery, which includes:  failure to respond or submit to an authorized method of discovery; making an evasive response to discovery; making, without substantial justification, an unmeritorious objection to discovery; and making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (Code Civ. Proc., § 2023.010.)

       

                  In addition, Code of Civil Procedure section 2030.300, subdivision (d) provides: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (See also Code Civ. Proc., § 2033. 290, subd. (d).)

       

                  Here, Plaintiff seeks monetary sanctions in connection with the motions based upon Defendant making the motions unsuccessfully and without substantial justification.  The Court agrees and finds that Defendant making unsuccessful motions without substantial justification to be an abuse of the discovery process.  Accordingly, the Court will impose monetary sanctions against counsel for Defendant, Gilsleider, McMahon, Molinelli & Phan, in the amount of $1000 which represents four hours of attorney time to prepare the oppositions to the motions and attend the hearing at $250 per hour.

       

      CONCLUSION AND ORDERS

       

      Therefore, the Court denies Defendant’s motions to compel further responses to Special  Interrogatories, Set 1 and to Requests for Admission, Set 1 per Code of Civil Procedure sections 2030.300 and 2033.290 for the reasons set forth above. 

       

      Further, the Court orders counsel for Defendant, Gilsleider, McMahon, Molinelli & Phan, to pay monetary sanctions in the amount of $1000 to Plaintiff, by and through counsel for Plaintiff, within 20 days of the hearing on the motions. 

       

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