Judge: Nathan Vu, Case: 2021-01194719, Date: 2022-09-19 Tentative Ruling
Motions to Compel
The motions to compel compliance with the responses of Defendants Gregory Derbez and Theresa Crockett to Plaintiff Dawn View Homeowners’ Association’s (Plaintiff) request for production of documents (set one) are GRANTED.
Defendants Gregory Derbez and Theresa Crockett shall produce all responsive, non-privileged documents in accordance with their respective responses to requests for production of documents (set one) request numbers 6, 7, 8 and 9, within 21 days of receiving the notice of ruling.
Defendants Gregory Derbez and Theresa Crockett shall each submit a statement under oath confirming that he or she has complied with the statement of compliance in his or her responses to Plaintiff’s request for production of documents (set one), within 21 days of receiving the notice of ruling.
The motions to compel responses to Plaintiff’s form interrogatories (set two), special interrogatories (set two), and requests for production of documents (set two) propounded on Defendants Gregory Derbez and Theresa Crockett are GRANTED.
Defendants Gregory Derbez and Theresa Crockett shall each provide verified responses, without objections, to Plaintiff’s form interrogatories (set two), special interrogatories (set two), and requests for production of documents (set two) within 21 days of receiving the notice of ruling.
The motions to deem as admitted the truth of the matters specified in Plaintiff’s requests for admission (set two) propounded on Defendants Gregory Derbez and Theresa Crockett are GRANTED.
Plaintiff’s requests for sanctions are GRANTED.
Defendant Gregory Derbez shall pay sanctions in the amount of $1,068 to Plaintiff within 21 days of receiving the notice of ruling.
Defendant Theresa Crockett shall pay sanctions in the amount of $1,068 to Plaintiff within 21 days of receiving the notice of ruling.
Motions to Compel Compliance with Responses to Request for Production
Plaintiff Dawn View Homeowners’ Association (Plaintiff) moves to compel compliance with Defendants Gregory Derbez’s and Theresa Crockett’s (collectively, Defendants) responses to requests for production of documents (set one).
Plaintiff propounded requests for production of documents (set one) on both Defendants and each of them served responses on or about 02/22/2022. (Lakin Decl., ¶¶ 2-3 & Exh. 2.) In their responses to request numbers 6 and 7, Defendants affirmed that they would comply with the requests in full. (Id., ¶ 4 & Exh. 2.) Defendants also averred that they would comply with request numbers 8 and 9 in part. (Ibid.)
To date, Defendants have only produced a single document entitled “Agreement for Settlement of Dispute”. (Lakin Decl., ¶ 6.) Defendants have not responded to Plaintiff’s query whether this document constitutes Defendants’ entire document production or if additional documents remain to be produced.
Code of Civil Procedure section 2031.320 allows a propounding party to bring a motion to compel a responding party to produce documents “in accordance with that party’s statement of compliance. . . .” (Civil Proc. Code, § 2031.320, subd. (a).)
Thus, Defendants may be compelled to produce all responsive, nonprivileged documents in accordance with their responses to requests for production of documents (set one) requests numbers 6, 7, 8, and 9. In addition, Defendants are required to affirmatively state under oath that they have fulfilled the statement of compliance in their responses to requests for production. (See Civil Proc. Code, § 2031.220.)
Motions to Compel Responses to Form Interrogatories, Special Interrogatories, and Requests for the Production
On 05/09/2022, Plaintiff served on Defendants form interrogatories (set two), special interrogatories (set two), and requests for production of documents (set two). (Lakin Decl., ¶¶ 7-9.) Defendants failed to serve responses by the deadline of 06/13/2022 and failed to respond to Plaintiff’s counsel’s letter extending the deadline to 06/21/2022. (Id., ¶¶ 12-14.) To date, no responses have been received by Plaintiff. (Id., ¶ 15.)
When a party fails serve responses to interrogatories or requests for the production of documents, the propounding party may move this court for an order compelling such responses. (See Civil Proc. Code, §§ 2030.290 & 2031.300.)
Further, by Defendants’ failure to serve timely responses to Plaintiff’s form interrogatories and special interrogatories, Defendants have “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . .” (Civil Proc. Code, § 2030.290, subd. (a).)
And due to Defendants’ failure to serve timely responses to Plaintiff’s requests for documents, Defendants have “waive[d] any objection to the demand, including one based on privilege or on the protection for work product . . . .” (Civil Proc. Code, § 2031.300, subd. (a).)
Motion to Deem as Admitted
On 05/09/2022, Plaintiff served on Defendants requests for admissions (set two). (Lakin Decl., ¶ 10.) Defendants failed to serve responses by the deadline of 06/13/2022 and failed to respond Plaintiff’s counsel’s letter extending the deadline to 06/21/2022. (Id., ¶¶ 12-14.) To date, no responses have been received by Plaintiff. (Id., ¶ 15.)
When a party fails to serve responses to requests for admissions, the propounding party may move this court for “an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.” (Civil Proc. Code, § 2033.280, subd. (b).)
Defendants’ failure to serve responses to the requests for admission results in their “waive[r of] any objection to the requests, including one based on privilege or on the protection for work product . . . .” (Civil Proc. Code, § 2033.280, subd. (a).)
However, the court may relieve a party of the waiver if 1) the party subsequently serves a response that is in substantial compliance with Civil Procedure Code sections 2033.210, 2033.220, and 2033.230, and 2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Ibid.)
Defendants filed oppositions to the motions to compel on 09/14/2022, only 3 court days before the hearing date set for the motions. The oppositions should have been filed no later than 9 court days before the hearing date. (Civil Proc. Code, § 1005, subd. (b).) Defendants failed to give any reason for their tardy oppositions.
The court has the discretion to not consider late-filed papers. (See Rules of Ct. R. 3.1300, subd. (d).) However, the court will consider the Defendant’s oppositions. Nonetheless, Defendants are informed that the court is unlikely to consider untimely filed papers in the future.
The oppositions assert that prior to the hearing on this motion, Defendants “answered the subject discovery request in full” and attached the responses to the requests for admission (set two). The oppositions refer to the provisions of Section 2033.280, which allow the court to relieve a party of the waiver.
However, the oppositions do not assert or explain that the Defendants’ failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect, as required by Section 2033.280(a). Nor do they contain any declarations to that effect. Thus, the court is without authority to relieve Defendants of the waiver.
Sanctions
Civil Procedure Code section 2030.290(c) requires the court to “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 interrogatories, 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.” (Civil Proc. Code, § 2030.290, subd. (c).)
Civil Procedure section 2031.310(h) imposes the same requirements with respect to motions to compel responses to requests for the production of documents. Here, Defendants have provided no substantial justification or other circumstances that make the imposition of sanctions unjust.
Further, Civil Procedure Code section 2033.280(c) states that, “[i]t 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” the motion. (Civil Proc. Code, § 2033.280, subd. (c).)
The court therefore must impose sanctions, although it will not include anticipated attorney’s fees for preparing a reply since none was filed.
Plaintiff Dawn View Homeowners’ Association shall give notice of this ruling.