Judge: Michael E. Whitaker, Case: 21STCV44491, Date: 2023-01-19 Tentative Ruling

Case Number: 21STCV44491    Hearing Date: January 19, 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

MOTIONS

            Defendant Burlington Coat Factory of Texas, Inc. (Defendant) moves to compel responses from Plaintiff Amaal Kozicki (Plaintiff) to Special Interrogatories, sets two and three (SROGs).  Defendant requests monetary sanctions in connection with the motion.  Plaintiff opposes the motion. Defendant replies.

Foremost, Defendant contends that Plaintiff’s opposition is untimely.  Per Code of Civil Procedure section 1005, all papers opposing a motion shall be filed with the Court and a copy served on each party at least nine court days before the hearing.  (Code Civ. Proc., § 1005, subd. (b).)  Based on the hearing date of January 19, 2023, Plaintiff was thus required to file and serve her opposition no later than January 5, 2023.  Plaintiff’s proof of service filed in connection with the opposition state Plaintiff served the opposition on January 8, 2023, electronically.  Notwithstanding, Defendant has submitted a reply to the opposition with full briefing on the merits.  The Court therefore concludes that Defendant will not be prejudiced by the Court’s consideration of Plaintiff’s opposition on its merits and exercises its discretion to do so.

Further, the Court notes that Defendant filed a single motion to compel responses to SROG, set two, as well as SROG, set three.  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).)  

Here, Defendant served SROG, set two, on Plaintiff on August 30, 2022, and SROG, set three, on September 13, 2022, electronically.  Plaintiff’s responses to SROGs set two and three were thus due by October 3, 2022, and October 17, 2022, respectively.  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 SROGs.

In opposition, Plaintiff argues Defendant’s motion is moot because Plaintiff provided verified discovery responses to the SROGs on December 19, 2022.  In reply to the opposition, Defendant does not challenge Plaintiff’s arguments and only addresses the issue of monetary sanctions. Accordingly, the Court finds Defendant’s motion as to compelling responses to the SROGs to be moot.

Although the Court finds Defendant’s motions 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, Plaintiff argues she acted with substantial justification in submitting untimely responses to the SROGs because she had changed her cellular phone plan and number and thus was not in contact with counsel for Plaintiff to finalize the subject discovery responses. 

The Court finds that Plaintiff’s Counsel has provided substantial justification for his actions.  However, the Court finds Plaintiff’s failure to keep in contact with counsel for Plaintiff, resulting in untimely responses to the SROG, to be an abuse of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subd. (d), 2030.290, subd. (c).). Accordingly, the Court will impose monetary sanctions against Plaintiff, in the amount of $690, which represents three hours of attorney time to prepare the moving papers and reply papers, and attend the hearing, at $190 per hour, plus the filing fees of $120 at $60 per motion.

CONCLUSION AND ORDER

Therefore, the Court denies, in part, Defendant’s motion to compel responses to the SROGs as moot. 

Additionally, the Court grants in part Defendant’s motion regarding the request for monetary sanctions, and orders Plaintiff pay monetary sanctions in the amount of $690 to Defendant, by and through counsel for Defendant, within 30 days of notice of the Court’s orders.

Finally, the Court orders Defendant to pay an additional $60.00 in filing fees to the Clerk of the Court on or before February 3, 2023.

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