Judge: Nathan Vu, Case: 30-2022-01290978, Date: 2023-07-31 Tentative Ruling
Motions to Compel Discovery
Plaintiff Lisset Lopez’s Motions for An Order Compelling Responses to Form Interrogatories – Employment Law, Set One; Special Interrogatories, Set One; and Request for Production of Documents, Set One are taken OFF CALENDAR as moot.
Plaintiff Lisset Lopez’s Motion to Compel Further Responses to Her First Set of Request for Admissions is GRANTED.
Defendant Dot-Line Transportation, Inc. is ORDERED to serve full, complete, and verified responses to Requests for Admission, Set One, Numbers 10, 11, 14, and 15 within 21 days of service of the notice of ruling.
The court ORDERS that Defendant Dot-Line Transportation, Inc. pay to Plaintiff Lisset Lopez sanctions in the amount of $1,800 (3 hours x $600 per hour in reasonable attorney’s fees for the Motions to Compel Responses within 21 days of service of the notice of ruling.
The court ORDERS that Defendant Dot-Line Transportation, Inc. pay to Plaintiff Lisset Lopez sanctions in the amount of $1,500 (2.5 hours x $600 per hour in reasonable attorney’s fees) for the Motion to Compel Further Responses within 21 days of service of the notice of ruling.
Plaintiff Lisset Lopez moves to compel verified responses without objection to Form Interrogatories – Employment Law, Set One; Special Interrogatories, Set One; and Request for Production of Documents, Set One propounded on Defendant Dot-Line Transportation, Inc. Plaintiff also moves to compel further responses to Request for Admission, Set One, Numbers 10, 11, 14, and 15.
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 responding party fails to serve responses to discovery requests altogether, 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).)
It appears that on July 14, 2023, Defendant served responses to Plaintiff’s Form Interrogatories – Employment Law, Set One; Special Interrogatories, Set One; and Request for Production of Documents, Set One. This does not necessarily moot the Motions to Compel, however.
Plaintiff argues that by failing to serve timely responses, Defendant has waived all objections. Plaintiff is correct on this point. (See Code Civ. Proc., § 2030.290, subd. (a); Code Civ. Proc., § 2031.300, subd. (a).)
However, the court may relieve Defendant of this waiver if 1) Defendant subsequently served a response that is in substantial compliance and 2) Defendant’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (See ibid.)
In this case, Defendant’s counsel states that the discovery was served just before Defendant’s counsel had surgery that left him partially incapacitated and then had serious complications arise thereafter that required emergency medical treatment from January 2023 to March 2023. (Decl. of Robert W. Lofton (Lofton Decl., ¶¶ 3-7.) Defendant’s counsel also had “countless in-office procedures and visits from March through June 2023” and additional surgery on June 22, 2023. (Id., ¶ 17.)
For the reasons explained below, the court does not believe that this explanation reasonably explains Defendant’s failure to serve timely (or at least earlier responses) or creates substantial justification for Defendant’s opposition to the Motions to Compel. However, it does constitute “mistake” or “inadvertence” such that a detriment should not be placed on Defendant because of its counsel’s actions. The court therefore will relieve Defendant of the waiver of its objections.
Standard to Compel Further Responses to Requests for Admission
The Civil Discovery Act requires that responses to requests for admission be “as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220, subd. (a).)
In addition, each response must:
(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.
(2) Deny so much of the matter involved in the request as is untrue.
(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.
(Code Civ. Proc., § 2033.220, subd. (b).)
A party may move for an order compelling further responses to requests for admissions on the grounds that: (1) an answer to a particular request is evasive or incomplete or (2) an objection to a particular request is without merit or too general. (Code Civ. Proc., § 2033.290, subd. (a).)
Here, Defendant’s responses to Requests for Admission Numbers 10, 11, 14, and 15 are evasive and do not comply with Defendant’s obligations under the Code to “[a]dmit so much of the matter involved in the request as is true, [and] “[d]eny so much of the matter involved in the request as is untrue.” The responses to each of these requests for admission states “Deny in part.” but does not specify which portion of the requests for admission Defendant denies.
Sanctions
The Civil Discovery Act 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).)
The Civil Discovery Act also requires the court to impose monetary sanctions against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses, “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., § 2033.290 subd. (d).)
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).
As explained above, Defendant’s counsel stated that he had serious medical issues that required surgery and emergency procedures and impaired his ability to review and respond to the discovery requests. While the court is sympathetic to Defendant’s counsel’s medical issues, these explanations do not provide substantial justification for Defendant’s failure to serve timely and complete responses, or at least to serve earlier and complete responses.
While Defendant’s counsel states that he did not receive the discovery requests when they were first served, he does admit that he received an e-mail from Plaintiff’s counsel on January 19, 2023, regarding the discovery requests and that on January 23, 2023, he requested an additional 30 days to respond. (Lofton Decl., ¶ 9.) Further, Defendant’s counsel does not explain why he did not request additional time from Plaintiff’s counsel or have his co-counsel of record, John L. Barber, (or another attorney at his law firm) handle the discovery requests.
Taking either course of action could have avoided forcing Plaintiff to file the instant Motions to Compel – as it stood, Plaintiff waited more than 60 days after January 23, 2023, to file the Motions to Compel.
Nor does Defendant’s counsel explain why the discovery responses were served little more than 2 weeks before the hearing on the instant motions. It took nearly 6 months after January 23, 2023, and more than 3 months after Defendant’s counsel’s last emergency medical treatment to serve the discovery responses. While Defendant’s Counsel claims that only he was served with the motions, the proofs of service for the motions show that they were served on John L. Barber as well. (Lofton Decl., ¶ 16; ROA #26, 33, 37, 41.)
Again, serving discovery responses shortly after the Motions to Compel were filed would have avoided requiring Plaintiff’s counsel to undertake more work such as preparing replies and attending the hearing on these motions.
However, the court will reduce the sanctions to account for the fact that some of the problems were caused by issues beyond the Defendant’s control. (See Mattco Valley Forge v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437 [court has discretion to reduce or apportion sanctions in equitable manner].) In addition, some of the attorney’s fees were duplicative, such as including 0.5 hours for each motion in order for counsel to attend the hearing.
Plaintiff shall give notice of this ruling.