Judge Michael E. Whitaker, Case Number: 23SMCV00589, Date: 2023-12-08 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV00589, Date: 2023-12-08 Tentative Ruling

Defendant NAI Capital Commercial Inc. (“Defendant”) moves to compel verified responses from Plaintiff Alexander Rivkin (“Plaintiff”) to Form Interrogatories (Set One) (“FROG”); Special Interrogatories (Set One) (“SROG”) and Demands for Production of Documents (Set One) (“RPD”). Defendant also seeks monetary sanctions in connection with the motions.

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).)

Pursuant to Code of Civil Procedure section 2031.300, subdivision (a), “[i]f a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response . . . [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).)

Defendant electronically served Plaintiff the FROG, SROG, and RPD on November 6, 2023. (See Kenney Decl. ¶¶ 2-4 and Exhibits A-C thereto.) Plaintiff did not timely respond to the subject discovery requests. (Kenney Decl. ¶ 5.)

In opposition, Plaintiff indicates it has since served verified responses to FROG, SROG, and RPD, and that it has produced documents in response to the RPD, thus mooting the instant motions.

In reply, Defendant argues that Plaintiff’s responses are inadequate, as Plaintiff improperly relies on objections that were waived by virtue of Plaintiff’s untimely response, and the responses also make clear that some documents are being improperly withheld.

Because Plaintiff has served responses to the FROG, SROG, and RPD, the Court denies the motion to compel initial responses is moot, except as to the issue of sanctions.[1] Any deficiencies in the FROG, SROG, or RPD responses are properly the subject of a motion to compel further responses and/or a motion to compel further production, as appropriate.

Defendant requests monetary sanctions for legal fees spent in connection with the motions. However, Defendant did not properly notice the request for sanctions against Plaintiff and Plaintiff’s counsel. As such, the request for sanctions is procedurally defective, especially as to Plaintiff’s counsel.[2] Nonetheless, Plaintiff forfeited the issue by failing to raise the procedural defect in the oppositions to the motion.[3]

The Court finds Plaintiff’s failure to timely respond to the FROG, SROG, and RPD to be an abuse of the discovery process, warranting monetary sanctions. (See Code Civ. Proc., §§ 2023.010, subd. (d), 2030.290, subd. (c), 2031.310, subd. (h).) Accordingly, the Court imposes monetary sanctions against Plaintiff and counsel for Plaintiff, Gary D. Fidler & Associates, APLC, in the amount of $2222.66, which represents five hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $400 per hour, plus $222.66 in filing fees at $74.22 per motion.

Therefore, the Court denies, in part, Defendant’s motions to compel responses to the FROG, SROG and RPD per Code of Civil Procedure sections 2030.290 and 2031.300 as moot.

Further, the Court grants, in part, Defendant’s motions regarding the requests for monetary sanctions and orders Plaintiff and counsel for Plaintiff, Gary D. Fidler & Associates, APLC, jointly and severally, to pay monetary sanctions in the amount of $2,222.66 to Defendant, by and through counsel for Defendant, within 20 days of notice of the Court’s orders.

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

[1] “[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”].)

[2] “Where sanctions are sought against the opposing party's counsel, the notice of motion must expressly so state. It is not enough simply to attach declarations or a transcript showing that the deponent refused to appear or answer questions on counsel's advice.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 8:1985 (citing Blumenthal v. Superior Court (1980) 103 CA3d 317; Marriage of Fuller (1985) 163 CA3d 1070); see also id. at ¶ 8:1986 [“Where an award is sought against the attorney for advising the opposing party not to answer or respond, the notice of motion must identify the opposing counsel and state that sanctions are being sought against such counsel personally”].)

[3] “The terms “waiver” and “forfeiture” long have been used interchangeably. As the United States Supreme Court has explained, however, waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right. Thus, it is most accurate to characterize the issue as whether a defendant forfeits the right to object to venue by failing to timely raise such an objection prior to trial.” (People v. Simon (2001) 25 Cal.4th 1082, 1097 [cleaned up]; see also Osman v. Superior Court (2005) 134 Cal.App.4th 32, 36.)

DEPARTMENT	207
HEARING DATE	March 27, 2024
CASE NUMBER	23SMCV00589
MOTIONS	Motions to Compel Responses to: 1. Form Interrogatories (Set One) 2. Special Interrogatories (Set One) 3. Demands for Production of Documents (Set One) Requests for Monetary Sanctions
MOVING PARTY	Defendant NAI Capital Commercial Inc.
OPPOSING PARTY	Plaintiff Alexander Rivkin