Judge: Richard Y. Lee, Case: 30-2020-01136052, Date: 2022-09-01 Tentative Ruling
Defendant, J.A.O Construction Inc. moves for an order compelling Plaintiff Mark Chanove to respond, without objections and within 14 days, to Defendant’s Special Interrogatories, Set One pursuant to Code of Civil Procedure section 2030.290. JAO also moves for an order compelling Plaintiff Mark Chanove to respond, without objections and within 14 days, to Defendant’s Request for Production of Documents, Set One, pursuant to Code of Civil Procedure section 2031.300.
For both motions, JAO moves for an order for monetary sanctions in the amount of $1,930 against Plaintiff, Mark Chanove, for reasonable costs and fees associated with bringing this motion under Code of Civil Procedure sections 2030.290 and 2031.300.
JAO contends that it served its Special Interrogatories, Set One and Requests for Production of Documents, Set One, on Plaintiff Mark Chanove (“Plaintiff”) on August 3, 2021, by electronic mail to his counsel of record; that responses were due on September 6, 2021; that Plaintiff failed to serve responses to said discovery by September 6, 2021; that JAO has attempted to meet and confer with Plaintiff’s counsel by e-mail and by telephone concerning responses to said discovery from March 3, 2022, through May 31, 2022, to no avail; and that, to date, JAO has not received responses to the aforementioned written discovery.
If a party to whom interrogatories or requests for production of documents were directed fails to serve a timely response, the propounding party may move for an order compelling responses, and for monetary sanctions. (Code Civ. Proc. §§ 2030.290(b); 2031.300(b).) By operation of law, if a party fails to serve a timely response to interrogatories, all objections that could have been asserted are waived, including any right to exercise the option to produce writings under Section 2030.230, as well as one based on privilege or on the protection for work product. (Code Civ. Proc. § 2030.290(a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408; Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906.) Similarly, if a party fails to serve a timely response to requests for production, all objections are waived. (Code Civ. Proc. § 2031.300(a).)
Here, JAO submits evidence establishing the following. On August 3, 2021, JAO served its Special Interrogatories, Set One and Requests for Production of Documents, Set One, on Plaintiff, by electronic mail; and as of the filing of the motions on June 6, 2022, 10 months after said discovery was served, JAO has not received responses to the foregoing discovery from Plaintiff despite attempts to meet and confer with Plaintiff’s counsel, granting extensions for Plaintiff to respond, and Plaintiff’s counsel’s representation that he would produce discovery responses. (Declaration of Ali R. Kazempour, ¶¶ 3-14; Exs. A through I.)
As Plaintiff has failed to timely serve responses to the discovery at issue, all objections are waived. (Code Civ. Proc. §§ 2030.290(a); 2031.300(a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408; Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906.)
Based on the foregoing, the Court GRANTS JAO’s Motions to Compel Answers to Special Interrogatories, Set One, and Request for Production of Documents, Set One from Plaintiff. Verified responses, without objections, are due within 20 days of the notice of ruling.
Monetary Sanctions
“[T]he 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 [or a demand for inspection], 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(c) [interrogatories]; 2031.300(c) [inspection demands].)
The Court may also impose a monetary sanction against any party or attorney, or both, who has engaged in a misuse of the discovery process, unless it finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2023.030(a).)
Code of Civil Procedure section 2023.040 provides: “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 notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”
Here, JAO seeks sanctions in the amount of $1,930 against Plaintiff. This amount consists of 1.5 hours drafting meet and confer correspondence and making telephone calls regarding the same; 3 hours drafting the instant motion; 2.5 hours reviewing any opposition and drafting a reply; and 1.5 hours appearing at the hearing at an hourly rate of $220, plus costs in the amount of $60 for filing fees. (Declaration of Ali R. Kazempour, ¶¶ 15-17.)
The motions are unopposed and the Court does not find an award for fees to meet and confer to be reasonable. The Court finds that 3 hours for drafting the instant motions, and 1.5 hours for appearing at the hearing at an hourly rate of $220 plus $60 for the filing fee, for a total sum of $1,050, to be reasonable.
The Court notes that the Declaration of Ali R. Kazempour requests attorney’s fees and costs against Plaintiff, Mark Chanove, and his counsel of record, Dan Hogue. (Declaration of Ali R. Kazempour, ¶ 17.) However, the notice of motion and memorandum of points and authorities do not request such fees and costs against counsel.
Where counsel is not placed on notice of the possible sanctions, the court does not have the power to impose sanctions against a party’s counsel. (Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320 [annulling award of sanctions against a party’s counsel because due process rights were violated where counsel was not given notice of possible sanctions against him].)
Thus, the Court AWARDS monetary sanctions in the amount of $1,050 against Plaintiff, Mark Chanove, to be paid within 20 days of the notice of ruling.
JAO to give notice.