Judge: Michael E. Whitaker, Case: 22STCV10526, Date: 2022-10-26 Tentative Ruling

Case Number: 22STCV10526    Hearing Date: October 26, 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

            Defendant Maloney Meat Co. (Defendant) moves to compel responses from Plaintiff Rosa Medina (Plaintiff) to Form Interrogatories, set one (FROG); Special Interrogatories, set one (SROG); Request for Production of Documents, set one (RPD); and moves to deem admitted the matters specified in Request for Admission, set one (RFA).  Plaintiff opposes the four motions. Defendant replies.

Foremost, Defendants contends that Plaintiff’s oppositions are 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 October 26, 2022, Plaintiff was thus required to file and serve oppositions no later than October 13, 2022.  Plaintiff’s proofs of service filed in connection with the oppositions state Plaintiff served the oppositions on October 14, 2022, electronically.  Notwithstanding, Defendant has submitted replies to the oppositions with full briefing on the merits.  The Court therefore concludes that Defendant will not be prejudiced by the Court’s consideration of Plaintiff’s oppositions on their merits and exercises its discretion to do so.

Further, the Court notes that Defendant failed to advance copies of the FROG, SROG, RPD, RFA, and the attendant proofs of service, in conjunction with the motions.  The Court also notes that Plaintiff fails to advance copies of her responses to the FROG, SROG, RPD, and the attendant proofs of service, in conjunction with the oppositions.  Because neither Defendant nor Plaintiff disputes proper service of the discovery requests and responses at issue, the Court exercises its discretion to consider Defendant’s motions and Plaintiff’s oppositions despite their procedural deficiencies. 

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).)  

            Pursuant to Code of Civil Procedure section 2033.280, subdivision (a), “[i]f a party to whom requests or admission are directed fails to serve a timely response . . .  [t]he party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product[.]”  (Code Civ. Proc., § 2033.280, subd. (a).)  Where a party fails to respond to requests for admissions, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.¿ (Code Civ. Proc., § 2033.280, subd. (b).)

Here, according to the declaration of Defendant’s counsel, Victoire Marque, Defendant served the FROG, SROG, RPD, and RFA on Plaintiff on May 3, 2022.  It is unclear as to when Plaintiff’s responses were due, as Defendant does not indicate how the discovery requests were served.  However, as of the filing date of the motions, Defendant has not received responses from Plaintiff.  Accordingly, the Court finds that Plaintiff has failed to serve timely responses to the FROG, SROG, RPD and RFA.

In opposition, Plaintiff argues Defendant’s motions are moot because, according to the declaration of Plaintiff’s counsel, Kenneth C. Yeager, Plaintiff provided verified discovery responses to the RFA on July 21, 2022.  Although Plaintiff’s counsel’s declaration only refers to the RFA, Defendant in its replies to the opposition concedes that Plaintiff served responses to the FROG, SROG, RPD and RFA, except FROG 17.1 on June 22, 2022 (FROG, SROG and RFA) and on September 8, 2022 (RPD).  In reply to the oppositions, Defendant asserts that Plaintiff’s responses to the discovery requests are deficient.  However, the sufficiency of Plaintiff’s discovery responses are not at issue in the instant motions.  Accordingly, the Court finds Defendant’s motions to be moot, except for FROG 17.1.  

Although the Court finds Defendant’s motions in part 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 four motions.  The Court finds Plaintiff’s failure to timely respond to the FROG, SROG, RPD and RFA to be an abuse of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subd. (d), 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)  Accordingly, the Court will impose monetary sanctions against Plaintiff and Plaintiff’s counsel of record, Kenneth C. Yeager, Law Offices of Drociak & Yeager, in the amount of $1,293, which represents 9 hours of attorney time to prepare the moving papers, the reply papers, and attend the hearing, at $117 per hour, plus the filing fees of $240 at $60 per motion.

CONCLUSION AND ORDER

Therefore, the Court denies, in part, Defendant’s motion to compel responses to the FROG, SROG, and RPD; and denies Defendant’s motion to deem admitted matters specified in the RFA, as moot.  The Court grants in part Defendant’s motion to compel the FROG and orders Plaintiff to served verified responses, without objections, to FROG 17.1 within 30 days of notice of the Court’s orders.

Additionally, the Court grants in part Defendant’s motions regarding the requests for monetary sanctions, and orders Plaintiff and Plaintiff’s counsel of record, Kenneth C. Yeager, Law Offices of Drociak & Yeager, jointly and severally to pay monetary sanctions in the amount of $1,293 to Defendant, by and through counsel for Defendant, within 30 days of notice of the Court’s orders.

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