Judge: Michael E. Whitaker, Case: BC666494, Date: 2022-10-19 Tentative Ruling

Case Number: BC666494    Hearing Date: October 19, 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

            Plaintiff Travis Peters (Plaintiff) moves to compel responses from Defendant Yusef Shekoni (Defendant) to Form Interrogatories, set one (FROG).  Plaintiff seeks monetary sanctions in connection with the motion.  Defendant has filed an opposition to the motion and Plaintiff replies to the opposition.  

ANALYSIS

            Pursuant to Code of Civil Procedure 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, Plaintiff served the FROG on Defendant on August 11, 2021, both via mail and electronically.  Defendant’s responses were thus due by September 15, 2021.  As of the filing date of the motion, Plaintiff had not received responses from Defendant.  Accordingly, the Court finds that Defendant has failed to serve timely responses to the FROG.

In opposition, Defendant argues Plaintiff’s motions are moot because Defendant provided verified discovery responses to the FROG on July 22, 2022. (Declaration of Edward J. Morales, ¶ 6; Exhibit A.)  In reply to the opposition, Plaintiff does not challenge Defendant’s arguments and only addresses the issue of monetary sanctions.  Accordingly, the Court finds Plaintiff’s motion to be moot.  

Although the Court finds Plaintiff’s motion 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”].)

Plaintiff requests monetary sanctions in connection with the motion.  The Court finds Defendant’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).)  Accordingly, the Court will impose monetary sanctions against Defendant and Defendant’s counsel of record, Borton Petrini, LLP, in the amount of $810, which represents three hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $250 per hour, plus the motion filing fee of $60.

CONCLUSION AND ORDER

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

Further, the Court grants in part Plaintiff’s motion regarding the request for monetary sanctions, and orders Defendant and Defendant’s counsel of record, Borton Petrini, LLP, to pay monetary sanctions in the amount of $810 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

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