TENTATIVE RULING

Calendar:      8

Date:         3/17/2023

Case No:      22 GDCV00731 Trial Date: None Set 

Case Name: Godjabashian v. Smart & Final Stores 

MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSIONS

Moving Party: Defendant Smart & Final Stores LLC   

Responding Party: Plaintiff Vanouhi Godjabashian  

RELIEF REQUESTED:

Order compelling plaintiff to serve verified responses, without objections, to Requests for Admissions, Set One

ANALYSIS:

Procedural

Motion Improper as Responses Served

Plaintiff in opposition argues that the motion is improper because although defendant argues that plaintiff did not respond to defendant’s discovery, the motion itself actually attaches a copy of plaintiff’s responses. 

The motion is curious, as it appears to seek responses to the requests for admissions (and does not seek an order deeming the requests for admissions admitted), and states that, “To date, Ms. Godjabashian’s [sic] has failed to respond to Defendant’s Requests for Admissions, Set One or make any requests for extension.”  [Derflinger Decl., para. 7].  

However, the motion attaches as an exhibit, “Plaintiff’s Response to Admissions to Plaintiff Vanouhi Godjabashian, Set One.”  [Derflinger Decl., para. 4, Ex. C].  Accordingly, responses have been served to the subject discovery, so that any motion to compel should have been brought as a motion to compel further responses and should have been accompanied by a separate statement.  See CRC Rule 3.1345(a) (“Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement.”)

The motion addresses the specific objections made, specifically, that the discovery was not properly served by email transmission, and a motion for further responses should have been made, with an appropriate reservation for a motion to compel further responses to discovery. 

While the copy of the responses attached to the motion does not include a proof of service, defendant clearly received the responses, and states as much in the declaration.  [Derflinger Decl., para. 4].  The responses attached also are not accompanied by a verification, but it appears that the responses consist only of objections, and under CCP section 2033.240(a), “The party to whom the requests for admission are directed shall sign the response under oath, unless the response contains only objections.”        

The motion is denied as moot, as discovery responses have evidently been served, or as an improperly filed and noticed motion to compel responses rather than a motion to compel further responses. 

Service of Discovery

The opposition argues that it would in any case be improper for the court to order plaintiff to respond to the requests for admissions without objections, as the responses were not untimely, because the discovery was never properly served.    

Under CCP § 2033.280 (a), a party who fails to serve a timely response to requests for admissions “waives any objection to the requests, including one based on privilege or on the protection for work product….”

Under CCP § 2033.250, the time to respond is 30 days: “(a) Within 30 days after service of requests for admissions, the party to whom they are directed shall serve the original of the response to them on the requesting party…”    

The moving papers concede that the Requests for Admissions were served by electronic service.  [Derflinger Decl., para. 2, Ex. A].  

Plaintiff responded by objecting that plaintiff had never consented to electronic service.  [Derflinger Decl., para. 4, Ex. C]. 

The moving papers seem to argue that plaintiff accepted the discovery and the service by electronic service of the answer to the complaint and did not indicate that plaintiff was not accepting electronic service.  

As argued in the opposition, the time to respond to discovery does not begin until the discovery is properly served.  Electronic service of the discovery on November 11, 2022 was governed by CCP section 1010.6.  

CCP § 1010.6 provides, in pertinent part:  

“(b)(1) This subdivision applies to mandatory electronic service. The court may order electronic service on a person represented by counsel who has appeared in an action or proceeding.

(2) A person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

(3) Before first serving a represented person electronically, the person effecting service shall confirm the appropriate electronic service address for the counsel being served.”

This situation is not a case where the court has ordered mandatory electronic service, and the moving papers have pointed to no documentation or legal argument which would suggest that this mandatory service applies here.  In addition, as argued in the opposition, defendant has not shown that defendant confirmed the appropriate electronic service address for the counsel being served.   Counsel for plaintiff states in his declaration that, “I first provided consent and a valid email address for service in this case on December 21, 2022.  I also whitelisted Defendant’s counsels’ domain name to prevent their e-mails from being caught in my spam filters.  At no time prior to this did Defendant’s counsel obtain consent or confirm the correct email address to use.”  [Silverstein Decl., paras. 2, 3].  

The motion argues that the failure to object at or around the time the service was made justifies defendant’s counsel in presuming that electronic service was accepted.  There is no legal authority cited for this proposition, or that consent can somehow be waived in this fashion.   The statute’s provisions concerning unrepresented parties limits the means by which consent can be manifested:

“(3) Express consent to electronic service may be given by either of the following:

(i) Serving a notice on all parties and filing the notice with the court.

(ii) Manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.

(4) A person who has provided express consent to accept service electronically may withdraw consent at any time by completing and filing with the court the appropriate Judicial Council form.

CCP section 1010.6(c)(3)

Defendant has failed to show that plaintiff did not timely respond to the subject discovery, as the subject discovery was not properly served. 

The motion to compel accordingly is denied. 

Monetary Sanctions

  Both sides seek monetary sanctions.  Defendant seeks sanctions under CCP section 2031.300 (d)(1), which applies to requests for production of documents, not requests for admissions.  

Defendant also seeks sanctions under CCP § 2023.010, which provides that misuses of the discovery process include:  “(d) Failing to respond or to submit to an authorized method of discovery.” 

As discussed above, defendant has not established that plaintiff has failed to respond to an authorized method of discovery, so is not entitled to sanctions. 

Plaintiff in the opposition seeks monetary sanctions under CCP § 2023.010 (h), which defines misuse of the discovery process to include, “[m]aking…, unsuccessfully and without substantial justification, a motion to compel.”    Where there has been such conduct, under CCP section 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).  

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. 

Here, defendant has unsuccessfully made this motion based on service of discovery which defendant had been informed was defective well before the motion was filed, and the court is within its discretion to order that the cost of opposing this motion be shifted to defendant.  Accordingly, the court awards sanctions to the plaintiff.  The sanctions sought are $1,179.12 (2.5 hours preparing opposition, .5 hours preparing for hearing, 1 hour attending hearing at $279.00 per hour, plus $63.12 filing/courier fees).  These sanctions are reasonable and are awarded.

RULING:

Defendant Smart and Final Stores LLC’s Motion to Compel Plaintiff Vanouhi Godjabashian’s Responses to Requests for Admissions, Set One, is DENIED. 

Monetary sanctions requested by the moving party are DENIED.

Monetary sanctions requested by the responding party are GRANTED.

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 opposing the  pending motion is $1,179.12 (4.0 hours @ $279.00 per hour) [4 hours requested] plus $62.12 filing fee [Amount Requested $1,179.12], which sum is to be awarded in favor of plaintiff Vanouhi Godjabashian and against defendant Smart and Final Stores LLC, payable within 30 days.  CCP sections 2023.010(h) and 2023.030(a). 

 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.