Judge Michael P. Linfield, Case 19STCV03462 2023-01-18 Tentative Ruling

Judge: Michael P. Linfield, Case: 19STCV03462, Date: 2023-01-18 Tentative Ruling

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Case Number: 19STCV03462 Hearing Date: January 18, 2023 Dept: 34

SUBJECT: Motion to Compel Plaintiff’s Further Responses to Defendant Jake Dante’s Request for Special Interrogatories (Set Three) and Request for Sanctions in the Amount of $1,500.00

Moving Party: Defendants Jake Morris Dante, Cynthia Pett Dante, and Brillstein Entertainment Partners, LLC

Resp. Party: Plaintiff Benjamin Nichols

SUBJECT: Motion to Compel Plaintiff’s Further Responses to Defendant Jake Dante’s Request for Production of Documents (Set Three) and Request for Sanctions in the Amount of $1,500.00

Moving Party: Defendants Jake Morris Dante, Cynthia Pett Dante, and Brillstein Entertainment Partners, LLC

Resp. Party: Plaintiff Benjamin Nichols

SUBJECT: Motion to Compel Plaintiff’s Further Responses to Defendant Jake Dante’s Request for Admissions (Set One) and Request for Sanctions in the Amount of $1,500.00

Moving Party: Defendants Jake Morris Dante, Cynthia Pett Dante, and Brillstein Entertainment Partners, LLC

Resp. Party: Plaintiff Benjamin Nichols

Defendants’ Motion to Compel Further Responses to SROGs is DENIED as moot. The associated requests for sanctions are DENIED.

Defendants’ Motion to Compel Further Responses to RPDs is GRANTED. The associated requests for sanction are DENIED.

Defendants’ Motion to Compel Further Responses to RFAs is DENEID as moot. The associated requests for sanctions are DENIED.

BACKGROUND:

On February 1, 2019, Plaintiff filed his Complaint against Defendants Jake Morris Dante, Cynthia Pett Dante, and Brillstein Entertainment Partners, LLC to allege the following causes of action related to an automobile accident:

(1) Negligence;

(2) Violation of Vehicle Code Sections 20001 and 20003;

(3) Violation of Vehicle Code Section 23152; and

(4) Negligent entrustment of motor vehicle.

On July 2, 2019, Defendants filed their Answer.

On July 19, 2022, the Court: (1) denied summary adjudication as to the first and fourth causes of action; (2) granted summary adjudication in favor of Defendants as to the second and third causes of action; and (3) granted summary adjudication in favor of Defendants as to punitive damages on the first, second, and third causes of action.

On December 6, 2022, Defendants filed:

(1) Motion to Compel Plaintiff’s Further Responses to Defendant Jake Dante’s Request for Special Interrogatories (Set Three) and Request for Sanctions in the Amount of $1,500.00 (“Motion to Compel Further Responses to SROGs”);

(2) Motion to Compel Plaintiff’s Further Responses to Defendant Jake Dante’s Request for Production of Documents (Set Three) and Request for Sanctions in the Amount of $1,500.00 (“Motion to Compel Further Responses to RPDs”); and

(3) Motion to Compel Plaintiff’s Further Responses to Defendant Jake Dante’s Request for Admissions (Set One) and Request for Sanctions in the Amount of $1,500.00 (“Motion to Compel Further Responses to RFAs”).

With each of the Motions, Defendants filed a Separate Statement and Proposed Order.

On January 4 and 5, 2022, Plaintiff filed:

(1) Opposition to Defendant’s Motion to Compel Further Responses to Special Interrogatories, Set Three (“Opposition to Further SROGs”);

(2) Opposition to Defendant’s Motion to Compel Further Responses to Requests for Production of Documents, Set Three (“Opposition to Further RPDs”); and

(3) Opposition to Defendant’s Motion to Compel Further Responses to Requests for Admission, Set One (“Opposition to Further RFAs”).

Each of the Oppositions includes a request for sanctions, and Plaintiff filed a Declaration of Seri Kattan-Wright with each of the motions. In addition, Plaintiff filed Supplemental Declaration of Seri Kattan-Wright in support of the Opposition to Further SROGs.

On January 10, 2023, Defendants filed:

(1) Reply to Plaintiff’s Opposition to Motion to Compel Plaintiff’s Further Responses to Production of Documents (Set Three) (“Reply to Further RPDs”); and

(2) Reply to Plaintiff’s Opposition to Motion to Compel Plaintiff’s Further Responses to Request for Admission (Set One) (“Reply to Further RFAs”).

Defendants did not file a reply regarding the Motion to Compel Further Responses to SROGs.

ANALYSIS:

I. Motions to Compel Further Responses to SROGs and RPDs

A. Legal Standard

California Code of Civil Procedure requires a response from the party to whom form interrogatories, special interrogatories, and demand requests are propounded within 30 days after service of the requests, unless the time is extended by agreement of the parties. (Code Civ. Proc., §§ 2030.260, subd. (a), 2030.270, subd. (a), 2031.260, subd. (a), 2031.270, subd. (a).) If a party fails to serve timely responses, "the party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., § 2030.300, subd. (b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc., § 2030.290, subd. (a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905, 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

B. Discussion

1. SROG Propounded

The following special interrogatory has been propounded upon Plaintiff:

SPECIAL INTERROGATORY NO. 18:

IDENTIFY all COMMUNICATIONS that took place between YOU and Defendant JAKE DANTE MORRIS following the SUBJECT INCIDENT.

[“IDENTIFY” means the date and time. “COMMUNICATIONS” means an form of communications through phone calls, text messages, or emails.]

2. RPDs Propounded

The following requests for production of documents have been propounded upon Plaintiff:

REQUEST FOR PRODUCTION NO. 13:

All DOCUMENTS evidencing, containing, or reflecting any COMMUNICATIONS between YOU and Defendant JAMES MORRIS DANTE that took place after the SUBJECT INCIDENT.

REQUEST FOR PRODUCTION NO. 14:

All DOCUMENTS evidencing, containing, or reflecting any COMMUNICATIONS between YOU and Defendant JAMES MORRIS DANTE regarding the SUBJECT INCIDENT.

REQUEST FOR PRODUCTION NO. 15:

All DOCUMENTS evidencing, containing, or reflecting text message COMMUNICATIONS between YOU and Defendant JAMES MORRIS DANTE regarding the SUBJECT INCIDENT.

3. Analysis

As to the sole SROG at issue, Defendant moves the Court to compel a further response, while Plaintiff argues that the issue is moot. In support of his argument, Plaintiff notes in his Opposition to Further SROGs that his Counsel served a further response to the SROG within hours of the relevant motion being filed. (Opposition to Further SROGs, p. 2:3–8; Decl. Kattan-Wright, ¶ 7.) Defendant did not file a reply or other response regarding this issue.

Given that it is undisputed that a further response to this SROG has been filed, the Court DENIES as moot the Motion to Compel Further Responses to SROGs.

As to the three RPDs at issue, Defendant moves the Court to compel further responses, pointing to an exhibit (a portion of a text message) Plaintiff produced during a deposition that Plaintiff had not previously provided to Defendants. (Motion to Compel Further Responses to RPDs, p. 6:4–19.) Defendant argues that Plaintiff has only since provided the exhibit shown and not the rest of the text messages. (Id. at pp. 6:25–26, 7:1–3.)

Plaintiff argues that Plaintiff has provided all responsive documents in his custody and control, claiming that “[t]here is nothing to compel.” (Opposition to Further RPDs, p. 2:3–5, 2:13.) Notably, Plaintiff does not explain how Plaintiff obtained only the text message he produced or what happened to the rest of the text messages. Plaintiff merely attempts to shift the burden of production, and Plaintiff’s Counsel notes that while there may have been more text messages exchange, “the unfortunate reality is that neither Plaintiff nor Defendant (allegedly) have custody of these text messages any longer.” (Opposition to Further RPDs, p. 2:14–15; Decl. Kattan-Wright, p. 2:18–20.)

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

Plaintiff has not produced the requested production of documents, and Plaintiff has neither made the statutorily-required affirmation nor provided any explanation as to why he no longer has the documents. There is no dispute that the requested production is relevant, reasonable, and discoverable

The Court GRANTS Defendants’ Motion to Compel Further Responses to RPDs.

4. Sanctions

The Parties have both requested sanctions in regard to these motions. As the Court has denied as moot the Motion to Compel Further Responses to SROGs and granted the Motion to Compel Further Responses to RPDs, the Court denies both requests for sanctions.

C. Conclusion

Defendants’ Motion to Compel Further Responses to SROGs is DENIED as moot. The associated requests for sanctions are DENIED.

Defendants’ Motion to Compel Further Responses to RPDs is GRANTED. The associated requests for sanction are DENIED.

II. Motions to Compel Further Responses to RFAs

A. Legal Standard

California Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250, subd. (a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280, subd. (a).) The requesting party may then “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 monetary sanction under Chapter 7.” (Code Civ. Proc., § 2033.280, subd. (b).)

A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (Code Civ. Proc., § 2033.280, subd. (b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 [disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., § 2033.280, subd. (c); Edmon & Karnow, supra, at ¶ 8:1375.)

A court will deem requests admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280, subd. (c).)

B. Discussion

1. RFAs Propounded

The following requests for admission have been propounded upon Plaintiff:

REQUESTS FOR ADMISSIONS NO. 17:

Admit that immediately after the SUBJECT INCIDENT, Defendant JAKE MORRIS DANTE provided YOU with his Driver’s License information.

REQUESTS FOR ADMISSIONS NO. 18:

Admit that immediately after the SUBJECT INCIDENT, Defendant JAKE MORRIS DANTE provided YOU with his vehicle registration information.

REQUESTS FOR ADMISSIONS NO. 19:

Admit that immediately after the SUBJECT INCIDENT, Defendant JAKE MORRIS DANTE provided YOU with his personal cell phone information.

REQUESTS FOR ADMISSIONS NO. 20:

Admit that after the SUBJECT INCIDENT, Police Officers arrived to the scene of the SUBJECT INCIDENT, and YOU informed them that YOU and Defendant JAKE MORRIS DANTE exchanged information.

REQUESTS FOR ADMISSIONS NO. 21:

Admit that after the SUBJECT INCIDENT, Police Officers asked YOU at the scene of the SUBJECT INCIDENT, if YOU and Defendant JAKE MORRIS DANTE exchanged insurance information, for which YOU explained that you obtain his Driver’s license information and his License Plate information.

REQUESTS FOR ADMISSIONS NO. 22:

Admit that after the SUBJECT INCIDENT, YOU expressly told Police Officers at the scene of the SUBJECT INCIDENT that you did not need an ambulance.

REQUESTS FOR ADMISSIONS NO. 23:

Admit that after the SUBJECT INCIDENT, Police Officers asked YOU if you needed any medical attention at the scene of the SUBJECT INCIDENT, for which expressly stated, “Nah, think I’m ok.”

REQUESTS FOR ADMISSIONS NO. 24:

Admit that after the SUBJECT INCIDENT, YOU expressly told Police Officers at the scene of the SUBJECT INCIDENT that you were pulled over and stopped prior to the SUBJECT ACCIDENT.

REQUESTS FOR ADMISSIONS NO. 25:

Admit that after the SUBJECT INCIDENT, YOU expressly told the Police Officers at the scene of the SUBJECT INCIDENT that you did not need medical attention.

REQUESTS FOR ADMISSIONS NO. 26:
Admit that on the date of the SUBJECT INCIDENT, YOU did not seek any HEALTH CARE by any HEALTH CARE PROVIDER.

[“HEALTH CARE” is defined to include all medical, therapeutic, dental,

psychological or psychiatric care, treatment, therapy, counseling, consultation, testing or evaluation done by any HEALTH CARE PROVIDER. “HEALTH CARE PROVIDER” is defined to include physicians, chiropractors, physical therapists, nurses, medical entities, holistic medicine providers, psychiatrists, psychotherapists, and the like.]

REQUESTS FOR ADMISSIONS NO. 27:

Admit that on the day of the SUBJECT INCIDENT, YOU did not report to any HEALTH CARE PROVIDER that YOU sustained any loss of consciousness.

REQUESTS FOR ADMISSIONS NO. 28:

Admit that on the day of the SUBJECT INCIDENT, YOU did not report a loss of consciousness or any other indication of potential brain injury to Police Officers at the scene of the SUBJECT INCIDENT.

REQUESTS FOR ADMISSIONS NO. 32:

Admit that after the SUBJECT INCIDENT, YOU told Defendant JAKE MORRIS DANTE, that YOU did not sustain any physical injuries in the SUBJECT INCIDENT.

2. Analysis

Defendants move the Court to compel further responses to requests for admission on the basis that Plaintiff has not admitted, denied, or stated that it has insufficient information to answer the requests for admission. (Motion to Compel Further Responses to RFAs, p. 10:5–9.)

Plaintiff argues that the Motion to Compel Further Responses to RFAs is moot because Plaintiff has since served further responses. (Opposition to Further RFAs, p. 2:5–7; Decl. Seri Kattan-Wright, ¶ 10.) Defendants make multiple arguments but ultimately concede that further responses to the requests for admission have been served. (Reply to Further RFAs, p. 4:5–7.)

Given that it is undisputed that further responses to the requests for admission have been filed, the Court DENIES as moot the Motion to Compel Further Responses to RFAs.

3. Sanctions

The Court does not find that sanctions are appropriate at this time. The Court denies the associated requests for sanctions.

C. Conclusion

Defendants’ Motion to Compel Further Responses to RFAs is DENEID as moot. The associated requests for sanctions are DENIED.