Judge: Nathan Vu, Case: 30-2021-01225093, Date: 2022-11-07 Tentative Ruling

Please Note: The hearing on this matter has been scheduled for 8:30 A.M.

Motions to Compel

Plaintiff Elizabeth Lockett’s motions to compel further responses to form interrogatories (set one), special interrogatories (set one), requests for production (set one), and requests for admission (set one) from Defendant Anthony Molinar are CONTINUED to 12/05/2022 at 8:30 a.m. in Department N15.

The court ORDERS Defendants Anthony Molinar and Earthwise Property Services, LLC to personally serve on counsel for Plaintiff Elizabeth Lockett all opposition papers in response to all the motions to compel set for 12/05/2022.

The court ORDERS Defendants Anthony Molinar and Earthwise Property Services, LLC to file with the court and personally serve all of the above-mentioned opposition papers on or before 4:30 p.m. on 11/18/2022.

Plaintiff Elizabeth Lockett moves to compel further responses to form interrogatories (set one), special interrogatories (set one), requests for production (set one), and requests for admission (set one) propounded on Defendant Anthony Molinar.

Defendant Molinar did not file an opposition to the motions to compel until 11/04/2022, the court day immediately preceding the hearing on the motions to compel.

Further, the opposition does not present any arguments on the merits and instead requests a continuance. Counsel for Defendant Molinar asserts that they believed the motions to compel had been continued to 12/05/2022 based on notices sent by the court.

In this case, Plaintiff filed four motions to compel against Defendant Molinar that were set to be heard on 11/07/2022 at 10:30 am and four motions to compel against Defendant Earthwise Property Services, LLC that were set to be heard on 12/05/2022 at 10:30 am. The court changed the hearing time (but not the date) for all the motions to compel and sent out a notice for each of the eight motions to compel.

Therefore, while it is true that the Defendants received four notices stating that the motions to compel were set for 12/05/2022, the notices made clear that only the hour was being changed: “The hour of the Motion to Compel Further Responses . . . in the above entitled action has been rescheduled to 12/05/2022 at 08:30 AM in N15 of the above named court.”

Defendants also received four notices stating that the “The hour of the Motion to Compel Further Responses . . . in the above entitled action has been rescheduled to 11/07/2022 at 08:30 AM in N15 of the above named court.” The wording of the notices and the fact that Defendants received notices for all four motions to compel on 11/07/2022 and all four motions to compel on 12/05/2022 made it clear that only the hour of the hearings was being changed.

Plaintiff received the same notices and understood that a hearing was still set for 11/07/2022. Plaintiff filed a Notice of Non-Opposition based on Defendants failure to serve timely opposition nine court days before the hearing and served it on Defendants by electronic mail on 10/31/2022. Defendants chose to ignore the notice because they assumed Plaintiff was in error rather than simply checking to see if they had made a mistake.

Finally, Defendants claim that an unnamed court clerk informed them that there were no hearings set for 11/07/2022. This appears unlikely as, for the last 4 weeks, there have been and continue to be no less than 10 hearings (including the hearing in this case) set for 11/07/2022 at 8:30 am. The only way that Defendants’ story can be true is if 1) the unspecified court clerk lied to Defendants for no apparent reason, 2) the unspecified court clerk gave an answer without checking the court’s computer system (which would have taken about 10 seconds), or 3) Defendants called the wrong courtroom.

Notwithstanding Defendant Molinar’s unreasonable belief that the hearing had been continued and his failure to file a timely opposition, the court will exercise its discretion to continue the hearing to allow Defendant Molinar an opportunity to file an opposition. The court should allow for motions to be decided on the merits wherever possible, particularly if the prejudice of continuing the hearing does not outweigh the prejudice of moving forward without an opposition.

However, the court will consider Defendant Molinar’s unreasonable conduct in ruling on the issue of sanctions on the motions to compel. The court also encourages the parties to further meet and confer to resolve their discovery disputes informally, to conserve party and judicial resources.

In order to assure that there is no further confusion or delay, the court will order that Defendants Molinar and Earthwise Property Services, LLC file and personally serve their opposition papers for all the motions to compel set for 12/05/2022 on or before 11/18/2022 at 4:30 pm. Defendants have been given a date certain by which they must file and serve their opposition papers regardless of the date they think the hearing is set, and Plaintiff will know when to expect the opposition papers and whether Defendants oppose the motions to compel. (fn.1.)

(fn.1) The court notes that the proofs of service attached to the motions to compel are not code compliant as they do not contain the electronic service address of the person making the electronic service. (See Code Civ. Proc. § 1013b, subd. (b) [party serving by electronic service must include in proof of service “[t]he electronic service address . . . of the person making the electronic service”].) This does not appear to have caused any actual prejudice as Defendant Molinar does not claim that he was not able to contact the person making the electronic service. However, Plaintiff should change the form of the proofs of service in the future to ensure that they are code compliant.

Plaintiff shall give notice of this ruling.