TENTATIVE RULING

Calendar:    3

Date:         2/10/2023

Case No:    21 STCV28645 Trial Date: None Set 

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

DISCOVERY MOTIONS (5 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 Special Interrogatories, Set No. 2 and Supplemental Interrogatory, Set No. 1

Responses to Request for Production of Documents, Set Two 

Responses to Supplemental Request for Production of Documents and Other Tangible Things, Set No. 1    

Order Deeming Requests for Admissions, Set One, Admitted 

CHRONOLOGY

Date Discovery served:    May 10, 2022, Oct. 29, 2022  

Extensions of time to respond until:   July 1, 2022, December 12 2022, without objections 

Date Responses served: NO RESPONSES SERVED 

 

Date Motion served:  November 14, 2022, December 22, 2022    Timely 

OPPOSITION:  

No opposition.   

ANALYSIS:

Three of these motions, the motions to compel responses to Form Interrogatories, Set Two, Request for Production of Documents, Set Two and for an order deeming Requests for Admissions, Set One, Admitted, were originally heard on January 6, 2023.  The court issued a tentative ruling via posting on LACourt.org website, which was to grant the unopposed motions.  At the hearing, counsel for plaintiff and defendants appeared, the matter was argued, and the court continued the matter to February 10, 2023 “to allow Counsel to file a written opposition.”   

The two other motions, the motions to compel responses to Special Interrogatories, Set No. 2 and Supplemental Interrogatory, Set No. 1, and responses to Supplemental Request for Production of Documents and Other Tangible Things, Set No. 1, were originally noticed to be heard on January 20, 2023, but were evidently continued by the moving party to this date on CRS on January 11, 2023.  The minute order from the January 6, 2023 hearing indicates that the hearing on a Motion to Compel Responses to Supplemental Request for Production of Documents was continued to February 10, 2023, and notice was waived.  There is no notice in the file showing that formal notice was given to plaintiff of the continuance of the motion concerning special interrogatories and supplemental interrogatory.  

There again have been no timely written oppositions filed to these motions.   

 

Interrogatories and Documents

Procedural

Notice of Continued Hearing Date

As noted above, there is no indication that there has been notice given that the noticed hearing date on Defendant Melanie Marshall, D.D.S.’s Motion to Compel Plaintiff Edward Wilson to Respond to Interrogatories (Special and Supplemental), January 20, 2023, has been continued to February 10, 2023.  The court will discuss whether notice of such rescheduling was provided at the January 6, 2023 hearing, when the other motion set to be heard on January 20, 2023 was also continued to this hearing date.  

Combined Motions

One of the motions, the motion to compel responses to interrogatories (special and supplemental) addresses two separate sets of interrogatories, Special Interrogatories Set No. 2 and Supplemental Interrogatory, Set No. 1.  The motion is accordingly two motions, lumped into one motion.  The motion should have been brought as two separate motions, with two separate reservations for motions of this nature, to avoid calendar congestion and jumping ahead of other discovery motions, and with two separate filing fees paid. 

The court will expect that an additional filing fee of $60 be paid for the second interrogatories motion to be considered this date. 

Substantive

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.

Two of the motions concern, in part, supplemental interrogatories and supplemental document demands.  Under CCP section 2030.070, a party “may propound a supplemental interrogatory to elicit any later acquired information bearing on all answers previously made by any party in response to interrogatories.”  Such a supplemental interrogatory may be propounded “twice before the initial setting of a trial date,” and “once after the initial setting of a trial date.”   A similar provision applies to document demands.   CCP section 2031.050.   

The motions here establish that interrogatories, supplemental interrogatories, and supplemental document production demands have been directed to plaintiff, and plaintiff 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 are 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.  

As to two of the motions, the motions originally set for hearing on January 20, 2023, concerning special and supplemental interrogatory and supplemental requests for production of documents, the motions are in order, and the court will award sanctions.  The sanctions sought are $490 for each of two motions.  One hour of time at $215 per hour is sought in each of the motions to attend the hearing on the motions, when the motions will be heard together, and with the other motions, but the court will award $230.00 for each motion.  The sanctions sought are reasonable.

With respect to the remaining three motions, ordinarily the court would also grant the requests for monetary sanctions.  However, a problem with the sanctions requests in connection with those motions 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 January 20, 2023 motions, for example, appropriately seek sanctions, “against plaintiff and his attorneys of record, Bear Republic Law…”  

 

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 as to those three motions 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.

Defendant Melanie Marshall, D.D.S.’s UNOPPOSED Motion to Compel Plaintiff Edward Wilson to Respond to Interrogatories:

The Motion Reservation was for one motion:  a single motion to compel responses to discovery.  Contrary to this reservation, defendant has combined two motions into one (1) a motion to compel responses to Special Interrogatories, Set No. 2, and (2) a motion to compel responses to Supplemental Interrogatory, Set No. 1.  

Two separate hearing dates should have been reserved for these two motions to compel. In the future, defendant is ordered to obtain separate hearing reservations and pay separate filing fees. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect. The Court will proceed to consider both motions this date, as qualified below.

Motion is GRANTED. 

Plaintiff Edward Wilson is ordered to serve verified responses to Defendant Melanie Marshall, D.D.S.’s Special Interrogatories to Plaintiff Edward Wilson, Set No. 2, without objection, within 10 days.

Plaintiff Edward Wilson is ordered to serve verified responses to Defendant Melanie Marshall, D.D.S.’s Supplemental Interrogatory to Plaintiff Edward Wilson, Set No. 1, without objection, within 10 days.

Monetary sanctions requested by moving party:  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 $230.00 (2.0 hours @ $215/hour) (2 hours requested) plus $60 filing fee [Amount Requested $490.00], which sum is to be awarded in favor of defendant Melanie Marshall, D.D.S, and against plaintiff Edward Wilson, and plaintiff’s attorney of record, jointly and severally, payable within 30 days.  CCP sections 2030.290(c), 2023.010(d), 2023.030(a).

The Court notes it has exercised its discretion to hear two motions, but this order will not become effective until moving party pays an additional $60 in filing fees.

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.

Defendant Melanie Marshall, D.D.S.’s UNOPPOSED Motion to Compel Responses to Supplemental Request for Production of Documents is GRANTED. 

Plaintiff Edward Wilson is ordered to serve verified responses to Defendant Melanie Marshall, D.D.S.’s Supplemental Request for Identification and Production of Documents and Other Tangible Things to Plaintiff Edward Wilson Set No. 1, without objection, and to permit inspection and copying, within 10 days.

Monetary sanctions requested by moving party:  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 $230.00 (2.0 hours @ $215/hour) (2 hours requested) plus $60 filing fee [Amount Requested $490.00], which sum is to be awarded in favor of defendant Melanie Marshall, D.D.S, and against plaintiff Edward Wilson, and plaintiff’s attorney of record, jointly and severally, payable within 30 days.  CCP sections 2031.300(c), 2023.010(d), 2023.030(a).

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.

  

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.