Judge: Richard Y. Lee, Case: 30-2020-01161064, Date: 2022-09-15 Tentative Ruling

Plaintiff and Cross-Defendant Mary Van Domelen (“Plaintiff”) moves for an order compelling Defendant and Cross-Complainant, Darrell Burns (“Burns”) to serve further responses to Form Interrogatories, Set One, Nos. 6.4-6.7, 8.3, 8.5, 8.6, 9.1, 9.2, 12.1, 12.4, 15.1, 17.1, 50.1, 50.2, and awarding $3,567 in monetary sanctions against Burns.

Plaintiff also moves for an order compelling Defendant Yolanda Molina (“Molina”) to serve further responses to Form Interrogatories, Set One, Nos. 15.1 and 17.1, and awarding $1,355 in monetary sanctions against Molina.

Plaintiff contends Burns served written responses on January 31, 2022, asserting objections to each interrogatory but Burns failed to verify his response to any of the Form Interrogatories, and served meritless boilerplate objections to the Form Interrogatories at issue. Plaintiff also contends that Plaintiff agreed to extensions of time to respond up to June 14, 2022, but that Burns has failed to provide further responses as he indicated he would, and that the delay is prejudicial to Plaintiff as trial in this matter is set for early October 2022, and Plaintiff cannot properly take depositions or issue follow-up demands until it has received responses to the first round of discovery. Burns has acted in bad faith. Plaintiff requests monetary sanctions in the amount of $ 3,567 under Code of Civil Procedure sections 2023.030(a), and 2023.010(d), (g), and (h), as well as 2030.300(d).

Burns and Molina contend that they have never refused to provide supplemental responses to this discovery and that the motions are moot as verifications have been provided to the original responses, and verified supplemental responses to the discovery at issue have been served on August 31, 2022. Burns and Molina also contend that Plaintiff did not meet and confer in good faith before filing the motion, that Plaintiff is not entitled to sanctions as Burns and Molina acted with substantial justification and/or circumstances make the imposition of sanctions unjust, and that the amount of sanctions claimed is excessive for short, simple, duplicative discovery motions. Burns and Molina each requests monetary sanctions in the amount of $885 against Plaintiff for bringing this unnecessary motion and the abuse of the discovery practice and good faith duty to meet and confer in good faith under Code of Civil Procedure sections 2023.030(a) and 2023.010(h) and (i).

In reply, Plaintiff argues that Plaintiff is entitled to sanctions even though verifications and supplemental responses were finally served because the failure to participate in legitimate discovery necessitated this motion, that Plaintiff requests an additional $600 in sanctions to be added to her original request to prepare this reply and a minimum of one hour to attend the hearing; and that there is no basis to award sanctions against Plaintiff for bringing this motion as Plaintiff did not fail to meet and confer in good faith.

Here, Burns and Molina provide that the original discovery responses have been verified, that said verifications have been served on Plaintiff’s counsel; and that on August 31, 2022, Burns and Molina served verified supplemental responses to the discovery at issue  (Declaration of Jay F. Stocker, ¶¶ 6, 31; Exs. O, P; ROA 185, 189, 197, 215.)

Based on the foregoing, the motions are MOOT and the Court DENIES the motions as MOOT.

Plaintiff’s Request for Monetary Sanctions Against Burns and Molina

“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.” (California Rules of Court, Rule 3.1348(a).)

Code of Civil Procedure section 2030.300(d) provides: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further 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.”

Additionally, the court may impose a monetary sanction ordering that one engaging in conduct that is a misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, included attorney’s fees incurred as a result of that conduct. (Code Civ. Proc. § 2023.030(a).) The court shall impose a monetary sanction 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. (Ibid.)

As relevant here, misuses of the discovery process includes “[f]ailing to respond or to submit to an authorized method of discovery,” disobeying a court order to provide discovery, opposition a motion to compel discovery unsuccessfully and without substantial justification and “[f]ailing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” (Code Civ. Proc. §§ 2023.010(d), (g), (h) and (i).)

Here, counsel for the parties agreed that Burns and Molina would provide further responses by June 14, 2022, and that any motion to compel would be extended to July 5, 2022. (Declaration of Charles R. Patterson, ¶ 24; Declaration of Jay F. Stocker, ¶ 19; Ex. G; ROA 185, 187, 195, 215.)

The declaration of Burns’ and Molina’s counsel (“Defendants’ counsel”) provide that on June 21, 2022, Plaintiff’s counsel inquired about supplemental responses; that on June 22, 2022, Plaintiff’s counsel indicated that if he did not receive the supplemental responses he would have to start on the discovery motion; that on June 22, 2022, Defendants’ counsel emailed a response to Plaintiff’s counsel indicating that he had been diagnosed with pneumonia and had been out of the office; that on June 24, 2022, Defendant’s counsel e-mailed Plaintiff’s counsel requesting a call back to discuss discovery status; and that on June 30, 2022, Defendants’ counsel contacted Plaintiff’s counsel indicating that he was just getting back from pneumonia and had an upcoming binding arbitration, informing Plaintiff’s counsel that he was still working on the supplemental responses and that discovery motions would not be necessary, requesting an extension for discovery responses, and agreeing to a trial continuance, but that the next he heard from Plaintiff’s counsel was an e-mail with eight (8) discovery motions on the 4th of July holiday. (Declaration of Jay F. Stocker, ¶¶ 21-26; Exs. A, B, I-K.)

Based on the foregoing, other circumstances make the imposition of sanctions unjust. Thus, the Court DENIES Plaintiff’s counsel’s requests for monetary sanctions.

Burns’ and Molina’s Request for Monetary Sanctions

Burns and Molina each requests monetary sanctions in the amount of $885 against Plaintiff for bringing this unnecessary motion and the abuse of the discovery practice and good faith duty to meet and confer in good faith under CCP section 2023.030(a) and 2023.010(h) and (i). (Declaration of Jay F. Stocker, ¶ 36, ROA 185, 215.)

Here, the declaration of Plaintiff’s counsel provides that the parties agreed to various extensions of time for Burns and Molina to respond to the Form Interrogatories at issue, up to and including June 14, 2022, but that as of the date of the motion (July 4, 2022), Burns and Molina have failed to supplement or verify any of their written responses to Plaintiff’s discovery. (Declaration of Charles R. Patterson, ¶¶ 22-25.) While Plaintiff’s counsel provides no evidence concerning any meet and confer between June 14, 2022, when supplemental responses were due and July 4, 2022, when the instant motions were filed, Defendants’ counsel provides emails, as set forth above, showing that Plaintiff’s counsel reached out to Defendants’ counsel on June 21, 2022, and that Defendants’ counsel responded and explained the delay, and attempted to meet and confer about the status of discovery before the deadline to file the instant motions on July 5, 2022, but that Plaintiff’s counsel did not respond. Consequently, the evidence indicates that Plaintiff’s counsel failed to meet and confer between June 14, 2022, and the filing of the instant motions on July 4, 2022.

In reply, Plaintiff does not address the failure to respond to Defendants’ counsel’s emails concerning the failure to provide further responses by June 14, 2022.

Thus, the Court GRANTS Burns’ and Molina’s request for monetary sanctions in the total amount of $885 against Plaintiff as the oppositions appear substantially identical. Plaintiff to pay sanctions within 30 days of the notice of ruling.

The Court notes that the reply includes new evidence in the form of the Reply Declaration of Charles R. Patterson which is not directly responsive to the arguments raised in opposition. Supporting evidence must be filed with a party’s moving papers. Evidence presented for the first time in reply papers may be disregarded. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1536.) The new evidence presented in reply and arguments which rely on such evidence are disregarded.

Defendants’ counsel to give notice.