I. BACKGROUND 

Plaintiff Jose Morales (“Plaintiff”) propounded special interrogatories, set one, on Jose Noyola (“Defendant”) on August 16, 2023. Responses were due by September 16, 2023. After not receiving responses, Plaintiff’s counsel made numerous calls and sent a meet and confer letter. On October 20, 2023, defense counsel stated they would provide responses by October 23, 2023. However, to date, no responses were served.  Plaintiff therefore seeks an order compelling Defendant to respond, without objections, to the outstanding discovery and to pay sanctions.  

This motion was initially heard on December 15, 2023, wherein the Court denied it without prejudice due to the issue with service of the moving papers. Defendant’s attorneys of record are James P. Souza and Anthony T. Luebke, Esq. of Kennedy & Souza, APC. The proof of service at the time did not demonstrate that the motion was served on counsel of record. 

On January 18, 2024, Plaintiff’s counsel filed a declaration stating that Lewis Brisbois is Defendant’s current and only counsel, not Kennedy & Souza, APC. In support thereof, Plaintiff’s counsel provides a copy of an email from Ariadne Giannis of Lewis Brisbois, in which she states they are the only defense counsel on the matter and that Kennedy & Souza, APC is no longer involved. Plaintiff’s counsel declares Lewis Brisbois has failed to update that they are the current counsel of record. Per the Court’s request, Plaintiff’s counsel emailed defense counsel regarding a notice of change of attorney to reflect the appropriate firm handling the matter. However, to date, Plaintiff has not received a response from defense counsel on this issue. Plaintiff’s counsel’s most recent declaration, filed on February 2, 2024, affirms the same information. 

Therefore, the Court will consider the motion on its merit. The Court notes that there has been no appearance by or for Defendant for Plaintiff’s prior motions to compel. The instant motion is unopposed. 

II. MOTION TO COMPEL DISCOVERY RESPONSES 

For a motion to compel initial discovery responses, 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. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290; 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., § 2030.290, subd. (a); § 2031.300, subd. (a).)    

Therefore, because the evidence shows Defendant was properly served with discovery and failed to respond, Plaintiff’s motion is GRANTED. Defendant is ordered to serve verified responses to Plaintiff’s special interrogatories, set one, without objections, within fifteen (15) days. (CCP §§ 2030.290(a),(b), 2031.300(a),(b).) 

III. SANCTIONS 

Sanctions are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response, unless a court makes certain findings.¿ (Code Civ. Proc., § 2030.290(c), 2031.300(c).)¿ Defendant did not file any opposition. However, sanctions may be awarded, even though no opposition was filed, pursuant to CRC 3.1348(a). Plaintiff seeks sanctions in the amount of $900 for the motion.  

A court has discretion to award sanctions that are “suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks” but they should not be punitive in nature or levied for the purposes of punishing an offending party. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.). Thus, in alignment with the Court’s prior reduction to Plaintiff’s previous and similar motion to compel, Plaintiff is awarded $250 for the motion to compel as attorney’s fees.   

Sanctions are imposed against Defendant and Defendant’s attorney Ariadne Giannis of Lewis Brisbois, jointly and severally.  Defendant and/or his counsel are ordered to pay sanctions to Plaintiff, by and through counsel of record, in the total amount of $250, within twenty (20) days. 

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 19th day of March 2024