TENTATIVE RULINGS 

Calendar:    4

Date:         12/13/2024

Case No:    24 NNCV00781 Trial Date: 08/17/2026 

Case Name: McShea, et al. v. Horton, et al.

MOTIONS TO COMPEL RESPONSES TO INTERROGATORIES (2)

Moving Party: Plaintiff Brian McShea     

Responding Party: Defendant Derek Horton 

RELIEF REQUESTED:

Responses to Special Interrogatories, Set One from each Defendant 

CHRONOLOGY

Date Discovery served :    August 25, 2024 

Extension to Respond to: October 17, 2024 (Ex. 3)

Date Responses served: NO RESPONSES SERVED

 

Date Motion served:  October 28, 2024    Timely 

ANALYSIS:

Under CCP § 2030.290, “If a party to whom interrogatories are directed fails to serve a timely response,” that party “waives any 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.”  

In this case, interrogatories have been directed to defendants and defendants failed to serve timely responses.  

Defendants in the opposition indicate that they served verified responses to the subject discovery on November 18, 2024, after the filing of these motions on October 28, 2024.  [Rabago Decl., para. 8].  While copies of those responses are not submitted with the oppositions, there are proofs of service submitted, and copies of verifications of the subject discovery responses.  The motions accordingly are moot. 

Sanctions

This leaves the issue of sanctions, which are sought by moving party.  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.”  

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, defendants have failed to timely respond to an authorized method of discovery and made the motions necessary.  Plaintiff has submitted evidence showing that plaintiff has incurred expenses as a result of the conduct. 

The oppositions argue that the sanctions requested should be denied because the notices are procedurally flawed, as they do not include the total amount of sanctions requested.  CCP section 2023.040 provides, in pertinent part:

“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.”

The oppositions argue that there is no mention of sanctions in the notice of motion and no designation of the amount sought.  This assertion is not true, because the notices state that plaintiff “will further move this court for an order requiring Defendant and/or Defendant’s counsel…to pay monetary sanctions to Plaintiff.”  [Motions, p. 2].  This notice sufficiently specifies the type of sanction sought, which is “monetary.”  There is no statutory requirement that the sum being sought be identified in the notice.  The statute requires that a request for sanctions be “accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  CCP section 2023.040.  This task was done here.  [See Liebrech Decl., para. 10].  Sanctions are not denied based on this procedural argument.

The oppositions also argue that sanctions should be denied because plaintiff failed to meet and confer in good faith.  The motions are for responses to discovery, for which there is no requirement to meet and confer at all.  Defendants have pointed to no statutory authority requiring a meet and confer in such a circumstance.  Also, the argument repeatedly concedes that defendants were aware of deadlines, but failed to meet them.The defendants also failed to seek court intervention or a protective order if such was necessary due to the volume of the discovery or reassignment to a new attorney within the same firm.   Sanctions are not denied for failure to meet and confer. 

The oppositions argue that defendants substantially were justified in responding to the requests. The defendant immediately after realizing the responses were past, they explained the need for additional time. Shortly thereafter, they actually served responses after the motions were filed.   Again, the solution for defendants’ dilemma should have been for defendants to incur the expense to seek court intervention.  The sanctions are awarded to shift the expense of preparing the motions which defendants’ conduct made necessary. 

Defendants also argue that the sanctions should be denied because they are unreasonable in amount.  The court does not find this a valid argument for denying sanctions altogether in this case, but will consider the argument in determining what reasonable amount should be awarded. The sanctions requested are $1,810.00 for the motion as to Audrey Nichols Horton and $1,830.00 for the motion as to Derek Horton.  As pointed out in the opposition, these appear high for motions of this nature, particularly at the $500 per hour billing rate.  The motions are quite brief, are largely cut and pasted from each other. Also, plaintiff requests one hour of time to attend the hearing in connection with each motion, when the motions will be heard together.  One hour is also sought in each motion for reviewing opposition and preparing a reply, but since the oppositions indicate the motions are substantively moot, any time to prepare replies should be minimal.  The fees awarded will be adjusted accordingly as follows: ½ hours reviewing opposition and preparing reply and one hour only to attend the hearing remotely for both hearings at $500.00 per hour with attorney fees of $1,500.00 at $1,000 awarded respectively for each motion.    

RULING:

Plaintiff Brian McShea’s Motion to Compel Responses to Requests for Special Interrogatories, Set One is MOOT in light of the service of verified responses to the subject discovery by defendant Derek Horton on November 18, 2024.  

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 $ 1,500.00 ( 3 hours @ $500/hour) (3.5 hours requested) plus filing fees of $80.00 [Amount Requested $1,830.00], which sum is to be awarded in favor of plaintiff Brian McShea, and against defendant Derek Horton, and defendant’s attorney of record, jointly and severally, payable within 30 days.  CCP sections 2030.290(c), 2023.010(d), 2023.030(a) and CRC Rule 3.1348(a).

Counsel for moving party is ordered to prepare an order for sanctions and submit it on eCourt by noon today in accordance with this order. 

Plaintiff Brian McShea’s Motion to Compel Responses to Requests for Special Interrogatories, Set One is MOOT in light of the service of verified responses to the subject discovery, Special Interrogatories to Audrey Nichols Horton as Trustee, Set One (1), on November 18, 2024.    

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 $1,000.00 ( 2 hours @ $500/hour) (3.5 hours requested) plus filing fees of $60.00 [Amount Requested $1,810.00], which sum is to be awarded in favor of plaintiff Brian McShea, and against defendant Audrey Nichols Horton as trustee, and defendant’s attorney of record, jointly and severally, payable within 30 days.  CCP sections 2030.290(c), 2023.010(d), 2023.030(a) and CRC Rule 3.1348(a).

Counsel for moving party is ordered to prepare an order for sanctions and submit it on eCourt by noon today in accordance with this order. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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