Judge Randy Rhodes, Case 19TRCV00282 2023-03-21 Tentative Ruling

RESPONDING PARTY: Defendants Jeffrey Kentner and Greenwolf Builders (collectively, “Defendants”)

RELIEF REQUESTED: An order compelling Defendants to serve further responses to Plaintiff’s Form Interrogatories, Set One. Plaintiff further requests that the Court order monetary sanctions against Defendants and their counsel in the amount of $3,375.00.

TENTATIVE RULING: The motion is denied. The Court imposes sanctions against Plaintiff in the amount of $500.00.

This is an action by the owner of a condominium unit against the homeowners’ association (HOA), the HOA’s counsel, and others, including Defendants. Defendant Greenwolf Builders is a contractor hired by the HOA, and defendant Kentner is its principal. The operative Second Amended Complaint, filed on 9/9/20, contains the following causes of action: (1) breach of governing documents, (2) breach of fiduciary duty, (3) breach of written contract, (4) breach of Davis Stirling Act, (5) discrimination in violation of FEHA and Unruh Civil Rights Act, (6) RICO Conspiracy, (7) unfair debt collection practice, (8) fraud, (9) negligence, (10) nuisance, (11) negligent infliction of emotional distress, (12) injunctive relief, (13) declaratory relief, (14) malicious prosecution and (15) accounting.

On 10/10/22[1], Plaintiff served Defendants with his second set of Form Interrogatories and Requests for Admission, to which Defendants responded on 11/9/22.

On 1/30/23, Plaintiff filed the instant motion to compel Defendants’ further responses to Plaintiff’s Form Interrogatories, Set Two. On 2/7/23, Defendants filed their opposition. No reply has been filed to date.

“Unless notice of this motion is given 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, the propounding party waives any right to compel a further response to the interrogatories.” (Code Civ. Proc. § 2030.300, subd. (c).)

Here, Defendants served their responses to Plaintiff’s Form Interrogatories, Set Two by email on 11/9/22. (Ex. D to Pl.’s Mot.) Therefore, without any stipulation between the parties, the deadline for Plaintiff to file the instant motion was 12/29/22 (45 days, plus 2 extra days for electronic service). (Code Civ. Proc. §§ 2031.310, subd. (c); 1010.6, subd. (a)(3)(B).) Plaintiff appears to argue that because he offered Defendants a 30-day extension to amend their discovery responses, the 45-day window for him to file the instant motion was thereby extended. (Pl.’s Mot., 11:7–9.) However, as Defendants note, any extension was not agreed upon between the parties, as evidenced by Plaintiff’s own contention that Defendants did not respond when he “unilaterally allowed 30 additional days” for them to provide further discovery responses. (Id. at 10:23–27; Def.’s Opp. ¶¶ 10–11 “Accordingly, the Plaintiff readily admits that Defense Counsel and Plaintiff have not stipulated or jointly agreed in writing to grant the Plaintiff any additional time to file” the instant motion.)

Even if the Court accepted Plaintiff’s argument that the statutory filing period was extended, Plaintiff filed the instant motion on 1/30/23, 82 days past the deadline set forth under Code of Civil Procedure section 2030.300, subdivision (c). Accordingly, as the Court finds that the motion was untimely filed, the motion is denied on this basis. (See also Standon Co. v Superior Court (1990) 225 Cal.App.3d 898, 902.)

“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.” (Code Civ. Proc. § 2030.290, subd. (c).) Additionally, “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.” (Code Civ. Proc. § 2023.030, subd. (a).)¿

Here, Plaintiff requests monetary sanctions in the total amount of $3,375.00 to be imposed on Defendants and their counsel. This amount accounts for 9 hours of work spent on the instant motion, at an hourly rate of $375.00 per hour. (Pl.’s Mot. 12:21–23.)

In opposition, Defendants request monetary sanctions against Plaintiff in the amount of $1,400.00, which accounts for 4 hours of time spent opposing Plaintiff’s motion, at counsel’s hourly rate of $350.00 per hour. (Decl. of M. Toney Smith, ¶ 3.)

In denying the instant motion, the Court finds it reasonable to award Defendants monetary sanctions against Plaintiff, in pro per, in the amount of $500.00.

The motion is denied. The Court imposes sanctions against Plaintiff in the amount of $500.00.

[1] Plaintiff has attached his Form Interrogatories, Set Two, as Exhibit A to the instant motion. However, the attachment does not include a proof of service for the Court to verify the date/method of service on Defendants.