Judge: Nathan Vu, Case: 30-2022-01281599, Date: 2023-07-31 Tentative Ruling
Demurrer
Defendant Melina Silvia Gallegos’ Demurrer is OVERRULED.
Plaintiff Dayse Leonor Ordonez-Bass’ request for sanctions pursuant to Civil Procedure Code section 128.5 is DENIED.
Defendant Melina Silvia Gallegos (Defendant Melina) demurs to the Complaint filed by Plaintiff Dayse Leonor Ordonez-Bass.
Timeliness and Waiver
A demurrer must be filed at the same time as the answer or within 30 days after service of the complaint. See Code Civ. Proc., § 430.30, subd. (c) [party is permitted to file a demurrer and answer at the same time]; Code Civ. Proc., § 430.40, subd. (a) [demurrers may only be filed within 30 days after service of complaint].)
Here, counsel for Defendant Melina signed an Acknowledgement of Receipt of the Summons and Complaint on her behalf on October 25, 2022, more than 5 months before filing this demurrer. (See ROA #9, #52.) In addition, Defendant Melina filed her Verified Answer on November 23, 2022, over four months before filing this Demurrer. (See ROA #19, #52.)
Thus, this Demurrer is untimely and Defendant Melina has waived her right to bring a Demurrer to the original Complaint. (See Nevada Irrigation Dist. v. Jones (1945) 69 Cal.App.2d 262, 266, Minehan v. Silveria (1933) 131 Cal.App. 317, 319.)
Meet and Confer
Before filing a demurrer to a complaint, a defendant must meet and confer in person or by telephone with the plaintiff to see whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) This conference must occur at least five days before the date the answer or demurrer is due. (Code Civ. Proc., § 430.41, subd. (a)(2).)
As part of the meet-and-confer process, the defendant “shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (Code Civ. Proc., § 430.41, subd. (a)(2).)
The defendant’s meet-and-confer declaration shall state “the means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer,” or “[t]hat the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 430.41, subd. (a)(3).)
Here, Defendant Melina did not include a meet and confer statement with her demurrer and there is no evidence that Defendant Melina ever attempted to meet and confer with Plaintiff prior to bringing this Demurrer. A conference might have made a difference as Plaintiff contends that she intended to file a First Amended Complaint that would have made the Demurrer irrelevant.
Sanctions
Plaintiff requests $2,970.00 in sanctions against Defendant Melina pursuant to Civil Procedure Code section 128. Plaintiff argues that Defendant Melina was aware that Plaintiff was attempting to file a First Amended Complaint that would have mooted the Demurrer but still moved forward with the Demurrer.
However, Plaintiff was not able to filed her First Amended Complaint. Thus, the Demurrer was not moot. Thus, Defendant Melina’s refusal to take her Demurrer off-calendar was not “made in bad faith,” nor was it “frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 128.5, subds. (a), (b).)
Motions to Compel Discovery
Plaintiff Dayse Leonor Ordonez-Bass’ Motions to Compel Responses to Plaintiff’s First Set of Form Interrogatories – General and Plaintiff’s First Set of Form Interrogatories – Employment Law, Plaintiff’s First Set of Special Interrogatories, and Plaintiff’s First Set of Request for Production of Documents are GRANTED.
Defendant Roberto Francisco Gallegos is ORDERED to serve full, complete, and verified responses to Plaintiff’s First Set of Form Interrogatories – General, Plaintiff’s First Set of Form Interrogatories – Employment Law, Plaintiff’s First Set of Special Interrogatories, and Plaintiff’s First Set of Request for Production of Documents, without objections within 30 days of service of the notice of ruling.
The Court ORDERS Defendant Roberto Francisco Gallegos to pay to Plaintiff Dayse Leonor Ordonez-Bass sanctions in the amount of $3,250 (6.5 hours x $500 per hour in reasonable attorney’s fees) within 30 days of service of the notice of ruling.
Plaintiff Dayse Leonor Ordonez-Bass moves to compel responses from Defendant Roberto Francisco Gallegos (Defendant Roberto) to Plaintiff’s First Set of Form Interrogatories – General, Plaintiff’s First Set of Form Interrogatories – Employment Law, Plaintiff’s First Set of Special Interrogatories, and Plaintiff’s First Set of Request for Production of Documents.
Standard to Compel Responses to Interrogatories and Requests for Production
When a party properly propounds interrogatories and the party receiving the interrogatories fails to respond, “[t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290, subd. (b).)
Similarly, when a party properly propounds requests for production and the party receiving the requests fails to respond, “[t]he party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).)
When the party receiving the discovery requests fails to respond, the propounding party is not required to file a meet and confer declaration prior to filing its motion to compel, and there is no time limit for the propounding party to file its motion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.)
In addition, “[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 . . . .” and “[t]he party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product . . . .” (Code Civ. Proc., § 2030.290, subd. (a); Code Civ. Proc., § 2031.300, subd. (a).)
Plaintiff provided evidence that Defendant Roberto was served with the above-described discovery requests no later than January 4, 2023, and failed to serve verified responses, even after Plaintiff made two meet-and-confer efforts urging Defendant Roberto to serve such responses. (See Declarations of Dolores Y. Leal in Supp. of Mot. to Compel, ¶¶ 4-10; Exhs. A-E.)
Defendant Roberto did not file oppositions to these Motions to Compel or provide evidence that he served responses. Defendant Roberto has waived any arguments and the court must grant the Motions to Compel. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose issue in motion constitutes waiver of that issue]; see also Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 [“it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a . . . motion”].)
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.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)
California Rules of Court rule 3.1348(a) further provides that “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).
Defendant Roberto has provided no substantial justification for his failure to provide responses or presented any circumstances that would make the imposition of sanctions unjust.
However, the court will reduce the hourly rate and the number of hours used to calculate the sanctions in light of the relative simplicity of the motions, their duplicative nature, and the fact that Defendant Roberto filed no oppositions (thus, doing away with the need for reviewing oppositions or preparing replies).
Plaintiff shall give notice of this ruling.