Judge Michael P. Linfield, Case 20STCV07655 2022-12-06 Tentative Ruling

Judge: Michael P. Linfield, Case: 20STCV07655, Date: 2022-12-06 Tentative Ruling

Case Number: 20STCV07655 Hearing Date: December 6, 2022 Dept: 34

SUBJECT: Motion for Order that the Truth of the Matters Specified in Requests for Admission of Fact, Set One Propounded on Plaintiff be Deemed Admitted

Moving Party: Defendant Compass California, Inc.

Resp. Party: Plaintiff Zohar Management, LLC

SUBJECT: Motion to Compel Responses, Without Objections, to Requests for Production of Documents, Set Two Propounded on Plaintiff

Moving Party: Defendant Compass California, Inc.

Resp. Party: Plaintiff Zohar Management, LLC

SUBJECT: Motion to Compel Responses, Without Objections, to Form Interrogatories, Set Two Propounded on Plaintiff

Moving Party: Defendant Compass California, Inc.

Resp. Party: Plaintiff Zohar Management, LLC

Defendant Compass California, Inc.’s Motion for Admissions is DENIED as Moot.

Defendant Compass California, Inc.’s Motion to Compel Responses to Form interrogatories is GRANTED.

Defendant Compass California, Inc.’s Motion to Compel Response to RPD is GRANTED.

Sanctions are GRANTED in favor of Defendant Compass California, Inc. and against Plaintiff and its Counsel, jointly and severally, in the total amount of $2,355.00.

BACKGROUND:

On February 24, 2020, Plaintiff Zohar Management, LLC filed its Complaint against Defendants Holloway Drive, LLC, Lubov Azria, Compass California, Inc., Shane Douglas Markland, Anthony J. Stellini, Sherri Ann Rogers, Utopia Development, Inc., and Daniel Angelo Moizel. This action arises out of allegations of the breach of a real estate contract regarding four residential units located at 8451 Carlton Way, Los Angeles, CA 90069.

On June 26, 2020, by request of Plaintiff, the Clerk’s Office dismissed without prejudice Defendants Daniel Angelo Moizel and Utopia Development, Inc.

On June 2, 2021, Plaintiff amended its Complaint to substitute Doe 1 for Compass, Inc.

On August 9, 2021, Plaintiff filed its First Amended Complaint.

On October 27, 2021, Defendants/Cross-Complainants Holloway Drive, LLC and Lubov Azria filed their Cross-Complaint against Defendants/Cross-Defendants Compass California, Inc., Shane Douglas Markland, Anthony J. Stellini, and Sherri Ann Rogers.

On November 1, 2021, Defendants/Cross-Complainants filed their Verified Answer to Plaintiff’s First Amended Complaint.

On November 3, 2021, Defendants/Cross-Defendants Compass California, Inc., Shane Douglas Markland, Anthony J. Stellini, and Sherri Ann Rogers filed: (1) their Verified to Plaintiff’s First Amended Complaint; and (2) their Answer to Cross-Complainants’ Cross-Complaint.

The Court previously ruled on discovery-related motions on October 16, 2020; January 15, 2021; March 30, 2021; December 8, 2021; May 13, 2022; and June 8, 2022. The Court most recently granted Plaintiff’s Motion to be Relieved of Matters Deemed Admitted and for Leave to Serve its Responses, conditioned on Plaintiff’s payment of $6,500.00 to Defendant/Cross-Complainant Holloway Drive, LLC and the scheduling and completion of that Defendant’s deposition of Plaintiff’s Person Most Knowledgeable within two weeks of the relevant hearing.

On November 3, 2022, Defendant Compass California, Inc. filed: (1) Motion for Order that the Truth of the Matters Specified in Requests for Admission of Fact, Set One Propounded on Plaintiff be Deemed Admitted (“Motion for Admissions”); (2) Motion to Compel Responses, Without Objections, to Requests for Production of Documents, Set Two Propounded on Plaintiff (“Motion to Compel Response to RPD”); and (3) Motion to Compel Responses, Without Objections, to Form Interrogatories, Set Two Propounded on Plaintiff (“Motion to Compel Responses to FROGs”).

On November 21, 2022, Plaintiff filed its Omnibus Opposition to the Real Estate Defendants’ Three Pending Motions to Compel Responses to Their Requests for Admissions, Set One, Form Interrogatories, Set One [sic], Requests for Production of Documents, Set One [sic], and Monetary Sanctions (“Opposition”).

On November 29, 2022, Defendant Compass California, Inc. filed: (1) Reply to Motion for Order that the Truth of the Matters Specified in Requests for Admission of Fact, Set One Propounded on Plaintiff be Deemed Admitted (“Reply regarding Requests for Admission”); and (2) Reply to Motions to Compel Plaintiff’s Responses to Form Interrogatories, Set Two, and Requests for Production of Documents, Set Two (“Reply regarding Responses and Production”).

ANALYSIS:

I. Motion for Admissions

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).) “It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280, subd. (c).)

B. Analysis

1. The Request for Admitting these Request for Admissions is Moot

On June 7, 2022, Defendant Compass California, Inc. propounded its Requests for Admissions of Fact, Set One on Plaintiff. (Motion for Admission, p. 3:3–6 and Ex. 1.) With a two-week extension that Defendant gave Plaintiff, Plaintiff’s responses were due on July 25, 2022.

In its Reply regarding Requests for Admissions, Defendant notes that Plaintiff served responses to Defendant’s Requests for Admission, Set One, but failed to provide responses to Form Interrogatory No. 17.1. (Reply regarding Requests for Admission, p. 2:6–9.)

As Plaintiff has served responses to the Requests for Admission prior to the hearing, the Court DENIES as moot Defendant’s Motion for Admission. (Code Civ. Proc., § 2033.280, subd. (c).) However, the Court must still consider the issue of sanctions.

2. Sanctions

As Plaintiff and its Counsel have failed to serve a timely response to requests for admission necessitated this motion, the Court must impose a monetary sanction on Plaintiff and its Counsel. (Code Civ. Proc., § 2033.280, subd. (c).)

Defendant requests a sanction of $1,185.00 against Plaintiff and Plaintiff’s Counsel, jointly and severally. (Reply regarding Requests for Admission, p. 5:16–18.) Defendant’s Counsel declares that they spent 3 hours of time at $350.00 per hour on this motion, and that they incurred costs of $60.00 for filing the motion.

The Court finds that these fees and costs are reasonable here.

The Court grants sanctions in favor of Defendant Compass California, Inc. and against Plaintiff and its Counsel, jointly and severally, in the amount of $1,185.00.

II. Motions to Compel Responses to Form Interrogatories and to Requests for Production of Documents

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. Form Interrogatories Propounded

The following form interrogatories have been propounded upon Plaintiff:

FORM INTERROGATORY 1.1:

State the name, ADDRESS, telephone number, and relationship to you of each PERSON who prepared or assisted in the preparation of the responses to these interrogatories. (Do not identify anyone who simply typed or reproduced the responses.)

FORM INTERROGATORY 17.1:

Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts upon which you base your response;

(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.

(Motion to Compel Responses to FROGs, Ex. 1.)

2. Requests for Production of Documents

The following request for production of documents has been propounded upon Plaintiff:

REQUEST FOR PRODUCTION NO. 28:

Any and all DOCUMENTS identified in YOUR responses to Form Interrogatories, Set Two, served concurrently herewith.

(Motion to Compel Response to RPD, Ex. 1.)

3. Analysis

Defendant Compass California, Inc. alleges that Plaintiff has not served responses to the form interrogatories or the request for production of documents listed above. (Reply regarding Responses and Production, p. 2:7–9 and Decl. Anast, ¶ 2.)

Plaintiff has not denied that it has failed to serve responses to the form interrogatories or the request for production of documents. Rather, Plaintiff argues that there is no substantial justification for the filing and prosecution of these motions “because all parties and their counsel mutually stipulated and agreed to delay and defer all discovery proceedings in this action pending the scheduling and completion of a global mediation of all claims and defenses in this action[.]” (Opposition, p. 2:9–11.) Plaintiff attaches various exhibits in an attempt to support this argument. (Opposition, Exs. 1, 2.) While these exhibits do show that discovery deadlines were pushed back, none of the exhibits demonstrate that discovery itself was stayed or deferred.

Given that Plaintiff has failed to timely respond to these discovery motions, the Court GRANTS both the Motion to Compel Responses to FROGs and the Motion to Compel Response to RPD. Plaintiff shall have 14 days to serve responses on these matters.

4. Sanctions

Plaintiff and its Counsel have failed to serve a timely response to the form interrogatories and the request for production of documents. The Court does not have evidence before it that would indicate there is substantial justification or other circumstances that would make the imposition of a sanction unjust. Thus, the Court must impose a monetary sanction on Plaintiff and its Counsel. (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)

Defendant requests a sanction of $1,870.00 against Plaintiff and Plaintiff’s Counsel, jointly and severally, for both of these motions. (Reply regarding Responses and Production, p. 4:10–14.) Defendant’s Counsel declares that they spent 5 hours of time at $350.00 per hour on these two motions, and that they incurred costs of $120.00 for filing of the two motions.

The Court grants sanctions in favor of Defendant Compass California, Inc. and against Plaintiff and its Counsel, jointly and severally, in the amount of $1,170.00 (3 hours @ $350/hour + $120.00 in costs).

III. Conclusion

Defendant Compass California, Inc.’s Motion for Admissions is DENIED as Moot.

Defendant Compass California, Inc.’s Motion to Compel Responses to Form Interrogatories is GRANTED.

Defendant Compass California, Inc.’s Motion to Compel Response to RPD is GRANTED.

Sanctions are GRANTED in favor of Defendant Compass California, Inc. and against Plaintiff and its Counsel, jointly and severally, in the total amount of $2,355.00.