Judge: Michael Shultz, Case: 22CMCV00077, Date: 2023-02-02 Tentative Ruling

INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:

1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all parties entitled to receive service.

If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on. 

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Case Number: 22CMCV00077    Hearing Date: February 2, 2023    Dept: A

22CMCV00077 Chespay, LLC v. Wilson Richardson

Thursday, February 2, 2023 at 8:30 a.m.

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO AND REQUEST FOR IMPOSITION OF MONETARY SANCTIONS

I.                    BACKGROUND

The complaint filed on March 23, 2022, alleges that Plaintiff hired Defendant to work at a power plant located in Carson. Defendant flew to Florida to work remotely. Defendant did not return to the Carson plant, nor did he return Plaintiff’s laptop with the files intact. Plaintiff alleges claims for breach of contract and for preliminary and permanent injunction.

On May 11, 2022, Defendant filed a cross-complaint against Plaintiff for retaliation, failure to pay wages, overtime, and compensation for missed meal and rest periods.

II.                  ARGUMENTS

A.      Motion filed January 5, 2023.

              Defendant served a Request for Production of Documents, Set Two on October 7, 2022. Defendant inquired about the status of Plaintiff’s responses. Plaintiff’s counsel, Manuel Duran, requested that Defendant resend the discovery. However, Plaintiff still did not respond. Defense counsel, A. J. Glassman, met and conferred with Plaintiff’s counsel, however, Plaintiff did not serve responses.  

B.      Opposition filed January 20, 2023.

              Plaintiff argues that Defendant did not serve the document request on Plaintiff. Defense counsel would not stipulate to email service of all future documents. Therefore, Plaintiff expected the document request to be served by mail. However, Plaintiff’s counsel checked email, which did not reflect that the document request was served by email. Nor did Defendant attach the discovery to the motion to compel.

C.      Reply filed January 25, 2023.

              Defendant argues he served the discovery by mail and email. Defendant emailed the discovery at Plaintiff’s counsel’s request.  Plaintiff’s counsel argues that defense counsel received the discovery by email on November 21, 2022.

III.                DISCUSSION   

              Where a party fails to timely respond to Request for Production of Documents, the court has authority to compel a response. Code Civ. Proc. §2031.300 subd. (b). Untimely responses result in a waiver of objections. Code Civ. Proc., § 2031.300 subd. (a).

              Defense counsel Mr. Glassman did not stipulate to accept service of all future documents by email, contending that his emails kept going to Mr. Duran’s spam account. Duran Decl., Ex. 2. However, despite the lack of agreement, Mr. Glassman served Plaintiff with the document request by email only on October 3, 2022. Reply, Ex. A, .pdf page 10. Mr. Duran informed Mr. Glassman that he never received the requests. Duran decl., Ex. B. When Mr. Duran requested another copy, Mr. Glassman sent Plaintiff’s counsel the wrong document. Motion, Ex. C. Mr. Glassman sent the correct document request by email on November 21, 2022, at Plaintiff’s request.  Motion, Ex. C. Plaintiff’s counsel admits he received the document request with the November 21, 2022, email. Opposing Decl. of Duran, Exs. 6 and 7.  

              Even if Plaintiff’s counsel did not receive the original document request, defense counsel gave him a copy on November 21, 2022. Plaintiff’s counsel does not explain why he still has not provided a response. Based on the November 21, 2022, date of electronic service, Plaintiff was required to respond by December 23, 2022 (30 days from service, increased by two court days for service by email. Code Civ. Proc., § 2031.260; .” Code Civ. Proc., § 1010.6, subd. (a)(4)(A). As Plaintiff has not provided responses, all objections are waived.

              Accordingly, Defendant’s motion is GRANTED. Plaintiff is ordered to serve verified responses to Request for Production of Documents, Set Two, without objection within 10 days after notice of the court’s ruling. Code Civ. Proc., § 2031.300 subd. (b). The Court imposes sanctions of $768.91 for fees and costs incurred ($350/hour x 2 hours to prepare motion and reply, and to appear and $68.91 in filing fees) against Plaintiff, Chespay, LLC and its counsel, Manuel Duran, jointly and severally, for Plaintiff’s failure to timely respond to authorized methods of discovery without substantial justification (payable within 10 days). Code Civ. Proc., 2031.300 subd. (c).