Judge: Nathan Vu, Case: 30-2021-01227299, Date: 2022-10-24 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Motion to Compel
Plaintiff Janine Lucero’s Motion to Compel Answers to Form Interrogatories is GRANTED.
Defendant MB Right, LLC is ordered to serve verified responses without objections to Plaintiff Janine Lucero’s form interrogatories (set one) within 15 days of receiving notice of this ruling.
Defendant MB Right, LLC is ORDERED to pay Plaintiff Janine Lucero sanctions in the amount of $1,050 within 15 days of receiving notice of this ruling.
Plaintiff Janine Lucero moves to compel Defendant MB Right, LLC to respond without objection to form interrogatories (set one).
When a party properly serves interrogatories and the other fails to respond, “[t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Civil Proc. Code, § 2030.290, subd. (b).)
Further, “[t]he party to whom the interrogatories are directed waives 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).)
In this case, Plaintiff served Defendant MB Right, LLC with form interrogatories (set one) on 05/11/2022. (Hobbs Decl., ¶ 3.) Despite being granted 3 or 4 extensions of time, Defendant MB Right still have nor provided any responses whatsoever. (Id., ¶¶ 4-7.)
On 10/21/2022, one court day before the hearing on this matter, Defendant MB Right, LLC filed and served an opposition to the motion. Defendant claimed that: “(1) the reasons for the delay in producing the responses is reasonable; (2) PLAINTIFF’s refusal to grant DEFENDANT’s request for a written discovery extension was unreasonable as the extension would not prejudice PLAINTIFF; and (3) a calendaring error led to DEFENDANT’s failure to file responses to preserve objections.” (Opp’n at p. 2:4-8, emphasis original.)
The only explanation given for the untimely filing of the opposition was that the prior attorney handling the case had left the law firm on 06/27/2022 and that new counsel Shaun Lampel was unaware of the motions to compel and that the motions to compel were not served on Counsel Lampel.
This argument is without merit. From Defendant MB Right’s first appearance in this case (which predates the service of the form interrogatories), counsel Morgan H. Stiefel has been listed as the lead attorney representing Defendant MB Right. Counsel Stiefel is still listed as the lead attorney representing Defendant MB Right, even on the opposition filed one court day prior to the hearing.
The motion to compel was served on Counsel Stiefel. In fact, while Counsel Lampel complains that the motion to compel was not served on him specifically, he concedes that he received the motion to compel on 08/24/2022 and discussed it with Plaintiff’s counsel at that time, two months prior to the hearing date. (Compare Opp’n at p. 3:18-20 with Opp’n at p. 4:11-14.)
Given that the opposition’s untimely filing and service makes it impossible for Plaintiff to file a reply and no good cause was given for the untimely filing, it is within the court’s discretion to ignore the opposition.
However, even if the court considered Defendant MB Right’s opposition, the court would grant the motion to compel as the arguments made in the opposition are unfounded.
Even if one of Defendant MB Right’s counsel left the law firm, Counsel Stiefel has been Defendant MB Right’s lead counsel throughout the entire relevant time period. The delay in serving responses was not reasonable and the calendaring error cannot provide a full explanation for the delay.
Further, Plaintiff has already granted 3 or 4 prior extensions of time lasting 6 weeks. Defendant MB Right then requested another extension after the filing of this motion to compel. Granting a further extension risked undermining Plaintiff’s argument (which had already been made) that objections had been waived and sanctions were merited, or risked mooting the entire motion to compel. It was not unreasonable for Plaintiff to decline to grant a 4th or 5th extension.
Although Defendant MB Right asserts that it has now served responses, those responses included objections. Because Defendant MB Right did not timely respond, objections to the discovery requests are waived. (See Civil Proc. Code, § 2030.290., subd. (a).) Defendant MB Right’s delayed responses are therefore not proper.
Sanctions
The Civil Procedure Code requires the court to impose monetary sanctions against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel “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).)
For the reasons stated above, Defendant MB Right did not act with substantial justification and there are no other circumstances that would make the imposition of the sanction unjust.
Plaintiff shall give notice of this ruling.