TENTATIVE RULING

Calendar:    4

Date:         1/6/23

Case No:    21 STCV28645 Trial Date: None Set 

Case Name: Wilson v. New Smiles Studio, et al.

DISCOVERY MOTIONS (3 Motions)

Moving Party: Defendants Melanie Marshall, D.D.S., Inc. dba New Smiles Studio and Melanie Marshall, D.D.S.    

Responding Party: Plaintiff Edward Wilson (No Opposition)  

RELIEF REQUESTED:

Responses to Form Interrogatories, Set Two  

Responses to Request for Production of Documents, Set Two    

Order Deeming Requests for Admissions, Set One, Admitted 

CHRONOLOGY

Date Discovery served:    May 10, 2022  

Extensions of time to respond until:   July 1, 2022, without objections 

Date Responses served: NO RESPONSES SERVED 

 

Date Motion served:  November 14, 2022    Timely 

OPPOSITION:  

No opposition.   

ANALYSIS:

Interrogatories and Documents

Under CCP § 2030.290, “If a party to whom interrogatories are directed fails to serve a timely response,” that party “waives any legal right to exercise the option to produce writings...as well as any objection to the interrogatories, including one based on privilege or on the protection for work product...”  Under subdivision (b), “The party propounding the interrogatories may move for an order compelling response to the interrogatories.”  CCP §2031.300 contains similar provisions with respect to requests to produce documents.

In this case, interrogatories and document production demands have been directed to responding party and responding party has failed to serve timely responses. 

The court notes that the motions are brought by defendants Melanie Marshall, D.D.S., Inc. dba New Smiles Studio and Melanie Marshall, D.D.S., designated as “Defendant.”  The discovery at issue was propounded by defendant Melanie Marshall, D.D.S. only, and the orders to compel will be made only as to the propounding party.  

Propounding party has appropriately moved for orders to compel.  Accordingly, responding party has waived the option to produce writings, as well as all objections, and is ordered to respond.  

Requests for Admissions

Under CCP § 2033.280, a party who fails to serve a timely response to requests for admissions “waives any objection to the requests….”   In addition, the requesting party may move for an order that “the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction....”   CCP § 2033.280(b).  The Code specifies that “The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Section 2033.220.”  CCP § 2033.280(c).   

In this case, requests for admissions were served on responding party on May 10, 2022.  Moving party extended an extension of time to respond to July 1, 2022.   Plaintiff failed to serve timely responses and has therefore waived all objections.  Defendant has filed a noticed motion requesting an order that the requests be deemed admitted as truth.  Unless responses in substantial compliance with Section 2033.220 are served before the hearing, the court must grant the motion.

Sanctions

With respect to Requests for Admissions, CCP § 2033.280(c) provides:

 

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

With respect to interrogatories, under CCP § 2030.290(c), “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a 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.”  A similar provision applies to document demands.  See CCP § 2031.300(c).

CCP § 2023.010 provides that misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.”  Where there has been such conduct, under CCP § 2023.030(a), “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct....If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP § 2023.030(a).  

Under CRC Rule 3.1348(a): “The 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.”

The burden is on the party subject to sanctions to show substantial justification or injustice.  Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.  

In this case, responding party has failed to respond to authorized methods of discovery and propounding party has submitted evidence that propounding parties have incurred expenses as a result of the conduct. Since the motions are unopposed, there is no evidence that the imposition of sanctions would be unjust.  

Ordinarily, the court would grant the request for monetary sanctions.  However, a problem with the sanctions requests here is that the notices of motion fail to specify against whom the sanction is sought.  

CCP § 2023.040 clearly requires that

“A request for a sanction shall, in the notice of motion, identify every person, party and attorney against whom the sanction is sought and specify the type of sanction sought. “

(Emphasis added). 

The notices in connection with the motions for responses to interrogatories and requests for production of documents state, “Defendant will also seek an award of monetary sanctions of $920 based upon the necessity of bringing this motion.”  There is no mention made of any person, party or attorney against whom the sanctions are sought.

 

The notice in support of the motion to deem requests for admissions admitted states, “Defendant also seeks the imposition of monetary sanctions in the amount of $920.00 based upon Plaintiff’s failure to respond to the subject requests or to engage in good faith discovery and the necessity of bringing this motion.”  This notice may support an inference that sanctions are sought against plaintiff, and there is only one plaintiff in this action, but the notice still does not appear to comply strictly with the statute, and it could well be the intent that sanctions are being sought against counsel for plaintiff.    

The requests for sanctions are denied for failure to make the appropriate identification in the notices of motion. 

RULING:

[No opposition]

UNOPPOSED Motion to Compel Responses to Form Interrogatories is GRANTED. 

Plaintiff Edward Wilson is ordered to serve verified responses to Form Interrogatories, Set No. Two, propounded by Defendant Melanie Marshall, D.D.S., without objection, within 10 days.

Monetary sanctions requested by moving party are DENIED.  The moving papers fail to comply with CCP § 2023.040, as the notice of motion fails to identify every person, party and attorney against whom the sanction is sought.

UNOPPOSED Motion to Compel Responses to Request for Production of Documents is GRANTED. 

Plaintiff Edward Wilson is ordered to serve verified responses to Defendant Melanie Marshall, D.D.S.’s Request for Identification and Production of Documents and Other Things to Plaintiff Edward Wilson Set No. 2, without objection, and to permit inspection and copying, within 10 days.

Monetary sanctions requested by moving party are DENIED.  The moving papers fail to comply with CCP § 2023.040, as the notice of motion fails to identify every person, party and attorney against whom the sanction is sought.

UNOPPOSED Motion to Have Matters Deemed Admitted is GRANTED. 

Plaintiff Edward Wilson has failed to serve timely responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion.  The Court therefore orders that all matters specified in Defendant Melanie Marshall, D.D.S.’s Request for Admissions to Plaintiff Edward Wilson, Set No. 1 are deemed admitted as true, pursuant to CCP § 2033.280(c).

Monetary sanctions requested by moving party are DENIED.  The moving papers fail to comply with CCP § 2023.040, as the notice of motion fails to identify every person, party and attorney against whom the sanction is sought.

  

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