Judge: Michael P. Linfield, Case: 23STCV20231, Date: 2023-12-14 Tentative Ruling
Case Number: 23STCV20231 Hearing Date: March 20, 2024 Dept: 34
SUBJECT: Motion to Compel Responses to Form Interrogatories and Request for Joint Monetary Sanctions
Moving Party: Defendant Carlos Sotelo
Resp. Party: Plaintiff Sebastian Solano
The FROGs Motion is DENIED as moot.
Monetary sanctions are AWARDED for Defendant and against Plaintiff and Plaintiff’s Counsel, jointly and severally, in the total amount of $1,115.15.
BACKGROUND:
On August 23, 2023, Plaintiff Sebastian Solano filed his Complaint against Defendants Carlos Sotelo and Keller Williams, Inc. on causes of action of professional negligence, breach of fiduciary duty, and fraudulent concealment.
On September 26, 2023, Plaintiff filed his First Amended Complaint (FAC) against Defendants Carlos Sotelo and VIP Enterprises, Inc. on causes of action of professional negligence, breach of fiduciary duty, and negligence.
On December 22, 2023, Defendants filed their Answer to the FAC.
On February 6, 2024, Defendant Carlos Sotelo (“Defendant”) filed his Motion to Compel Responses to Form Interrogatories and Request for Joint Monetary Sanctions (“FROGs Motion”). In support of his FROGs Motion, Defendant concurrently filed: (1) Declaration of Andrew Leff; (2) Judicial Council Form EFS-020, Proposed Order (Cover Sheet); and (3) Proposed Order.
On March 7, 2024, Plaintiff filed his Opposition to the FROGs Motion. In support of his Opposition, Plaintiff concurrently filed Declaration of Charles M. Clark.
On March 12, 2024, Defendant filed his Reply in support of his FROGs Motion. Defendant concurrently filed Supplemental Declaration of Andrew Leff.
ANALYSIS:
I. 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. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)
The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel motions for interrogatories or requests for production, unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)
II. Discussion
A. The Discovery Requests
Defendant moves the Court to compel responses to form interrogatories (“FROGs”) that appear to have been served on December 1, 2023. (FROGs Motion, p. 6:16–19; Decl. Leff, Exh. 1, p. 9.)
Plaintiff opposes the FROGs Motion, arguing that the request is moot because responses to the FROGs were served on February 16, 2024. (Opposition, p. 2:2, 2:22.) Plaintiff’s Counsel provides the responses to the FROGs, which appear to have been verified on February 15, 2024 and served on Defendant on February 16, 2024. (Decl. Clark, Exh. 1, actual pp. 23–24 of 48.)
Defendant admits that the request for responses is now moot. (Reply, p. 1:28.)
The Court DENIES as moot the FROGs Motion.
B. Sanctions
Defendant requests monetary sanctions against Plaintiff and Plaintiff’s Counsel in the amount of $1,145.15. (Motion, p. 6:15–19.)
Plaintiff argues that monetary sanctions are not appropriate because Plaintiff served good faith responses to the FROGs, served wholly sufficient amended responses, and should have had an informal discovery conference prior to the filing of the FROGs Motion. (Opposition, p. 2:22–27.)
The Court does not have evidence before it that would indicate Defendant served timely responses to the FROGs. Rather, the evidence before the Court indicates that the responses to the FROGs were not served until more than two months after the FROGs were served, and more than a week after the FROGs Motion was filed. Because 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, the Court must impose a monetary sanction.
Defense Counsel declares: (1) that they charge $245.00 per hour; (2) that they incurred 4.3 hours for this motion; and (3) that they paid $61.65 in costs. (Decl. Leff, ¶ 4.)
The Court finds that the hourly rate, number of hours spent, and costs are all reasonable here. However, this amount adds up to $1,115.15, not $1,145.15.
The Court AWARDS monetary sanctions for Defendant and against Plaintiff and Plaintiff’s Counsel, jointly and severally, in the total amount of $1,115.15.
III. Conclusion
The FROGs Motion is DENIED as moot.
Monetary sanctions are AWARDED for Defendant and against Plaintiff and Plaintiff’s Counsel, jointly and severally, in the total amount of $1,115.15.