Judge: Michael E. Whitaker, Case: 23SMCV05104, Date: 2024-11-21 Tentative Ruling

Case Number: 23SMCV05104    Hearing Date: November 21, 2024    Dept: 207

TENTATIVE RULING

MOTION

            Plaintiff Jean France (“Plaintiff”) moves to compel responses from Defendants Wang Chung Family, LLC and Mashcole Property Management, Inc. (“Defendants”) to Form Interrogatories, Set 1 (“FROG”).  Defendants also seek sanctions against Defendants and their attorney, including monetary sanctions. 

Plaintiff’s motion is unopposed.

LEGAL STANDARDS

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).) 

ANALYSIS

1.     Discovery Requests

Plaintiff served Defendants with the FROG on February 20, 2024.  (Mayberry Decl. ¶ 1.)  It is unclear in what manner the FROG were served on Defendants, but if they were served by mail, the deadline to respond would have been March 26, 2024.  Plaintiff extended the time for Defendants to respond to April 24, 2024.  (Mayberry Decl. ¶ 1.)  Yet, as of the filing of the motion, Plaintiff has still not received any responses to the FROG from Defendants.  (Mayberry Decl. ¶ 8.) 

2.     Monetary Sanctions

Plaintiff requests monetary sanctions for legal fees spent in connection with the motion.  The Court finds Plaintiff’s failure to timely respond to the FROG to be an abuse of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subd. (d), 2030.290, subd. (c).)  But the Court finds Plaintiff’s request to be procedurally defective for two reasons. 

First, with respect to Defendants’ counsel of record, “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 2024) ¶ 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”].)  Here, Plaintiff did not specifically identify Defendants’ counsel of record; thus, the Court finds Plaintiff’s notice to be defective.

Second, “a request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (Code Civ. Proc., § 2023.040, emphasis added.)  Here, Plaintiff advanced the Declaration of Brent Mayberry (“Mayberry) in support of the motion.  However, Mayberry failed to set forth facts supporting the monetary sanctions request.  In particular, Mayberry does not state how many hours it took him to craft the motion and his hourly fee for representing Plaintiff in this discovery matter.  As such, the Court finds Plaintiff’s request to be non-compliant with Section 2023.040. 

CONCLUSION AND ORDER

Therefore, the Court grants in part Plaintiff’s motion to compel responses to the FROG per Code of Civil Procedure section 2030.290.   As such, the Court orders Defendants to serve verified responses to the FROG, without objections, within 30 days of notice of the Court’s orders.

Further, the Court denies Plaintiff’s request for monetary sanctions. 

Plaintiff shall provide notice of the Court’s order and file the notice with a proof of service forthwith.

DATED:  November 21, 2024                       ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court