Judge: Michelle Williams Court, Case: 21STCV06841, Date: 2022-09-06 Tentative Ruling

Case Number: 21STCV06841    Hearing Date: September 6, 2022    Dept: 74

21STCV06841           AMERICAN GLOBAL FACILITY vs DIVINE FOOD & CATERING

Defendant’s Motion to Compel Responses to Requests for Production (Set 1) and Form Interrogatories (Set 1) and for Monetary Sanctions

TENTATIVE RULING:  Defendant’s Motion to Compel Responses to Requests for Production (Set 1) and Form Interrogatories (Set 1) and for Monetary Sanctions is GRANTED in part.  Plaintiff is ordered to provide verified, code-compliant responses to Defendant Divine Food & Catering, LLC’s First Set of Requests for Production of Documents to Plaintiff American Global Facility without objection within 20 days and produce all responsive documents within 30 days.  Pursuant to Code of Civil Procedure section 2031.300(c), the Court imposes sanctions against Plaintiff American Global Facility in the amount of $600.00 payable to Defendant via its attorney of record within 60 days.  The motion is taken OFF-CALENDAR as to the request to compel responses to Form Interrogatories, Set One.

Background

On February 22, 2021, Plaintiff American Global Facility filed this action against Defendant Divine Food & Catering, LLC seeking to recover $54,094.50 for unpaid goods or services provided.

On May 13, 2021, the Court entered the parties’ stipulation to set aside Defendant’s default entered on April 26, 2021.

Motion

On April 8, 2022, Defendant filed a single motion seeking to compel responses to requests for production and form interrogatories. On August 9, 2022, Defendant filed an amended notice with the hearing set for September 6, 2022.

The motion was properly served and is unopposed. (Code Civ. Proc. § 1005(c).)

Motion to Compel Initial Responses

Standard

The propounding party may move for an order compelling a party to respond to the discovery request. (Code Civ. Proc. §§2030.290(b), 2031.300(b); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) A party that fails to serve a timely response to the discovery request waives any objection to the request, including one based on privilege or the protection of attorney work product. (Code Civ. Proc. §§ 2030.290(a), 2031.300(a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a forty-five (45) day time limit or a separate statement requirement, and the propounding party does not have to demonstrate either good cause or that it satisfied a “meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 404.)

History of Discovery at Issue

On January 3, 2022, Defendant served Defendant Divine Food & Catering, LLC’s First Set of Requests for Production of Documents and Form Interrogatories, Set One upon Plaintiff. (Yu Decl. ¶¶ 2-4, Ex. 1-3.) Plaintiff did not obtain an extension and has not responded to the discovery. (Id. ¶¶ 5-6.)

Defendant’s Motion is Improperly Brought as Two Motions in One

On April 8, 2022, Defendant filed the instant motion seeking to compel Plaintiff’s responses to both Defendant Divine Food & Catering, LLC’s First Set of Requests for Production of Documents and Form Interrogatories, Set One as a single motion. These discovery motions are governed by separate statutory schemes and must be brought as two separate motions. Accordingly, the Court shall address the first request for relief, the Defendant Divine Food & Catering, LLC’s First Set of Requests for Production of Documents, and take the request as to the Form Interrogatories OFF-CALENDAR.

Plaintiff Must Provide Responses to Requests for Production, Set One

Plaintiff failed to provide timely responses to Defendant Divine Food & Catering, LLC’s First Set of Requests for Production of Documents. Accordingly, Plaintiff has waived all objections thereto and must provide complete, verified, code-complaint responses without objection within 20 days and produce responsive documents within 30 days.  (Code Civ. Proc. § 2031.300.)

Sanctions

Pursuant to Code of Civil Procedure section 2031.300(c), “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 a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Defendant sought sanctions against Plaintiff, but not its counsel, in the amount of $4,400.00 consisting of 5.5 hours (including 5 hours by Farah Tabibkhoei and .5 hours by [Yu]). Additionally, Divine Catering estimates it will incur an additional $1,000 in fees to prepare the reply and attend the hearing, which will take approximately 1.5 hours (including 1 hour by Farah Tabibkhoei and .5 hours by [Yu]. [Yu’s] rate for this case as lead trial counsel is $800 per hour and Ms. Tabibkhoei’s rate as counsel is $600 per hour.” (Yu Decl. ¶ 7.)

Defendant’s sanction request is excessive. The motion is unopposed and therefore no costs were incurred to prepare a reply and counsel’s attendance at the unopposed hearing is not required. Additionally, it is not reasonable for an attorney claiming an hourly rate of $600.00 to have spent five hours preparing a motion to compel initial discovery that is supported by a three-page memorandum and required no significant legal research. Similarly, the involvement of a second attorney claiming an $800.00 hourly rate is not reasonable.

The Court finds a sanction of $600.00, consisting of one hour of attorney time by Farah Tabibkhoei, to be reasonable and appropriate under the circumstances.