Judge Peter A. Hernandez, Case 21PSCV00313 2022-08-24 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

2. Defendant Ward’s Motions to Compel Plaintiff to Respond to Ward’s First Set of Interrogatory Requests is DENIED.

Plaintiff Isabel M. Coats, individually and through Isabelle Coats Newman, as successor trustee of the inter vivos trust titled Isabel M. Coats Survivor’s Trust Created Under the Terms of the Isabel and Walter Coats Trust Restated January 26, 1994 (“Plaintiff”) alleges as follows:

Gregory Ward (“Ward”) is Plaintiff’s son. Ward filed a lawsuit against Plaintiff (i.e., styled Ward v. Coats, Case No. KC069975 [“Cabin Case”]). On July 15, 2020, the court granted Plaintiff’s motion for summary judgment in the Cabin Case.

On April 21, 2021, Plaintiff filed a complaint, asserting causes of action against Ward and Does 1-10 for:

1. Plaintiff’s Motion to Compel Re: Requests for Admission and Form/Special Interrogatories

Plaintiff moves the court for orders compelling Ward’s verified responses, without objections, to Plaintiff’s Requests for Admissions, Set No. One (i.e., Nos. 2, 4-7, 13, 14, 18-20 and 22-25), Plaintiff’s Form Interrogatories, Set No. Two No. 17.1 (i.e., as to Requests for Admissions Nos. 1, 2 and 4-28) and Plaintiff’s Special Interrogatories, Set No. One. Plaintiff seeks sanctions of $4,611.65.

At the outset, the court notes that Plaintiff’s motion improperly combines three separate motions into one. Plaintiff has only paid one filing fee and reserved a hearing for one motion This is improper. Plaintiff is ordered to pay an additional $120.00 in filing fees at or before the time of the hearing (i.e., $60.00 filing fee/motion, multiplied by 3, minus 1 filing fee already paid). Counsel for Plaintiff is admonished to adhere to court filing and reservation guidelines in any future filings and to file (and pay for) separate motions for each discovery vehicle at issue in the future. Failure to do so may result in the motions being placed off calendar, in the court’s discretion.

On December 22, 2021, Plaintiff served Special Interrogatories, Set One (“SROGs”) on Ward. (Woodward Decl., ¶ 7, Exh. 7.) On January 11, 2022, Plaintiff served Requests for Admission, Set One (“RFAs”) and Form Interrogatories, Set Two (“FROGs”) on Ward. (Id., ¶¶ 2 and 6, Exhs. 1 and 6.) Ward subsequently provided responses to the RFAs and SROGs, both of which contained a typed date of February 16, 2022 on the top left-hand corner and a handwritten date of March 2, 2022; said responses did not include proper verifications and were not accompanied by proofs of service. (Id., ¶ 3, Exhs. 2 and 8.) On March 22, 2022, Plaintiff’s counsel Ai Woodward (“Woodward”) sent Defendant a meet and confer letter, advising of the lack of a proof of service accompanying the SROGs and of the improper verification. (Id., ¶ 9, Exh. 9.) Woodward advised Ward of Code of Civil Procedure § 2015.5. (Id.) On March 24, 2022, Woodward sent Defendant a meet and confer letter, advising of the lack of a proof of service accompanying the RFAs and of the improper verification. (Id., ¶ 4, Exh. 3.) This letter also reminded Ward that he had not responded to the FROGs. (Id.) Woodward again advised Ward therein of Code of Civil Procedure § 2015.5. (Id.) To date, Plaintiff has not received proper verifications to the RFAs and SROGs. Plaintiff has also not received responses to the FROGs.

Although the motion is styled, at least in part, as one compelling further responses (replete with separate statements for the RFAs and SROGs), the court construes the motion, based upon the above record, as a straightforward motion to compel responses to Plaintiff’s Form Interrogatories, Set Two and Special Interrogatories, Set One and Requests for Admission, Set One, inasmuch as “[u]nsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635; See Code Civ. Proc., §§ 2030.290, subd. (b); 2033.280.) Here, the purported verifications provided with the RFAs and SROGs do not comply with Code of Civil Procedure § 2015.5.[1] Plaintiff has not sought an order deeming the RFAs admitted.

The motion is granted. Ward is to provide responses, without objections, with verifications compliant with Code of Civil Procedure § 2015.5 and accompanied by valid proofs of service, to Plaintiff’s Form Interrogatories, Set Two, Special Interrogatories, Set One and Requests for Admission, Set One, within 20 days from the date Plaintiff serves a “Notice of Ruling.”

Plaintiff seeks sanctions against Ward in the amount of $4,611.65 [calculated as follows: 11 hours preparing motion, plus 2 hours preparing for and attending hearing at $350.00/hour, plus $61.65 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $631.65 (i.e., 1.5 hours at $300.00/hour, plus $181.85 total filing fees [see above]). Sanctions are payable within 30 days from the date Plaintiff serves a “Notice of Ruling.”

“[T]he propounding party may move for an order compelling a further response if the propounding party deems that . . . (1) An answer to a particular interrogatory is evasive or incomplete[,] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[, and/or] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b)(1).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2030.300, subd. (b)(2).)

Notice of the motion must be provided “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. . .” (Code Civ. Proc., § 2030.300, subd. (c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

“The court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further 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.” (Code Civ. Proc., § 2030.300, subd. (d).)

Ward appears to seek Plaintiff’s further responses to special interrogatories.

Ward’s motion is unclear, inasmuch as he has not provided the court with a notice of motion or memorandum of points and authorities, as per California Rules of Court (“CRC”) rules 3.1112 (i.e., “(a) Motions required papers Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion. . .

(d) Motion—required elements A motion must: (1) Identify the party or parties bringing the motion; (2) Name the parties to whom it is addressed; (3) Briefly state the basis for the motion and the relief sought. . .”), 3.1110 (i.e., “(a) Notice of motion A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”) and 3.1113 (i.e., “(a) Memorandum in support of motion A party filing a motion . . . must serve and file a supporting memorandum. . . (b) Contents of memorandum The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced”).

Additionally, Ward has failed to provide a separate statement, as per CRC rule 3.1345. Ward has failed to provide a declaration setting forth his efforts to meet and confer. Ward has also failed to provide the court with a copy of the subject discovery.

Ward’s moving papers appear to confirm that he sent two different sets of 46 interrogatories, the second of which was “almost identical to the original.” Ward does not state that he provided the declaration required by Code of Civil Procedure § 2030.050 to justify serving more than 35 specially drafted interrogatories. Plaintiff, in her opposition, confirms that this was not done. Per Code of Civil Procedure § 2030.030, “[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.”

[1] Code of Civil Procedure § 2015.5 provides as follows: “Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. The certification or declaration may be in substantially the following form:

(a) If executed within this state:

‘I certify (or declare) under penalty of perjury that the foregoing is true and correct’:

____________________________ __________________________

(Date and Place) (Signature)

(b) If executed at any place, within or without this state:

‘I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct’:

____________________________ __________________________”

(Date and Place) (Signature)


		(Signature)

[2] Motion #2 was filed and set for hearing on August 24, 2022; it does not appear to be accompanied by a proof of service. Plaintiff, however, has opposed the motion. “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.)