Judge Richard Y. Lee, Case 30-2021-01206676 2022-08-25 Tentative Ruling

Judge: Richard Y. Lee, Case: 30-2021-01206676, Date: 2022-08-25 Tentative Ruling

Before the Court are three discovery motions filed by Defendant, City of Huntington Beach (“Defendant”) as follows:

1. Defendant’s Motion to Compel Plaintiff Aaron Malaszewski’s Responses to Defendant’s Second Set of Form and Special Interrogatories;

2. Defendant’s Motion to Compel Plaintiff Aaron Malaszewski’s Responses to Defendant’s Second Set of Requests for Production of Documents; and

3. Defendant’s Motion to Deem Defendant’s Second Set of Requests for Admission Admitted.

Second Set of Form Interrogatories, Special Interrogatories, and Requests for Production

Defendant moves for an order compelling responses, without objections, by Plaintiff Aaron Malaszewski (“Plaintiff”) to Defendant’s Second Set of Form Interrogatories and Special Interrogatories, and awarding Defendant sanctions in the amount of $487.50 against Plaintiff.

Defendant also moves for an order compelling responses, without objections by Plaintiff to Defendant’s Second Set of Requests for Production of Documents, and awarding Defendant sanctions in the amount of $487.50 against Plaintiff.

Defendant contends that Plaintiff’s former counsel filed a Substitution of Attorney indicating that Plaintiff was representing himself, that Defendant served Second Sets of Form Interrogatories, Special Interrogatories, and Requests for Production and that despite two extensions, Defendant has not received responses. Defendant also argues that sanctions are warranted for Plaintiff’s unjustified failure to respond to the discovery at issue pursuant to Code of Civil Procedure sections 2030.290(c) and 2031.300(c).

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).)

Initially, the Court notes that on February 28, 2022, a Substitution of Attorney was filed on behalf of Plaintiff providing that Attorney Timothy J. Ryan, Esq. was substituting out as counsel for Plaintiff, and that Plaintiff was going to represent himself. (ROA 28.)

Defendant submits evidence establishing the following. On March 2, 2022, Defendant served a Second Set of Form Interrogatories and Requests for Production of Documents on Plaintiff by mail and email. (Declaration of Lauren Rose (“Rose Decl.”), ¶ 2; Ex. A; ROA 33, 35.) On March 3, 2022, Defendant served a Second Set of Special Interrogatories on Plaintiff by mail. (Declaration of Lauren Rose (“Rose Decl.”), ¶ 2; Ex. B.)

On April 11, 2022, Defendant mailed Plaintiff a meet and confer letter. (Rose Decl., ¶ 4, Ex. C.) On April 18, 2022, Plaintiff called Defendant’s counsel to discuss the meet and confer letter, and declared that he never received the discovery requests. (Rose Decl., ¶ 5.) On that same day, Defendant granted Plaintiff a two-week extension to May 2, 2022 to provide discovery responses and e-mailed Plaintiff the discovery after being given Plaintiff’s e-mail address. (Ibid.; Ex. D.) On May 2, 2022, Plaintiff emailed Defendant asking for another extension to seek counsel, and Defendant granted Plaintiff another extension until May 16, 2022. (Rose Decl., ¶¶ 6-7, Exs. E and F.) To date, no responses have been received. (Rose Decl., ¶ 3.)

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 Defendant’s Motions to Compel Responses to Second Sets of Form Interrogatories, Special Interrogatories, and Requests for Production from Plaintiff. Verified responses, without objections, are due within 20 days of the notice of ruling.

Monetary Sanctions

Defendant seeks sanctions in the amount of $487.50 against Plaintiff for the motion to compel as it relates to the interrogatories. Defendant’s counsel provides that they spent 2.5 hours preparing the motion, and anticipates spending 4 hours to review any opposition, to draft a reply, and to prepare for/appear at the hearing. (Rose Decl., ¶ 8, ROA 33.)

Defendant seeks additional sanctions in the amount of $487.50 against Plaintiff for the motion to compel as it relates to the requests for production. (Rose Decl., ¶ 8; ROA 35.)

“[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].)

Code of Civil Procedure section 2023.040 also 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, although Defendant argues in the memorandum of points and authorities that Defendant’s counsel has spent a total of 6.5 hours for a total amount of $975 at a rate of $150 per hour, Defendant’s counsel does support the asserted $150 hourly rate by a declaration to support the amount of any monetary sanction sought. Consequently, the Court DENIES the request for monetary sanctions.

Requests for Admission, Set Two

Defendant moves for an order that the truth of all matters in Defendant’s Second Set of Requests for Admission be deemed admitted, and an award of monetary sanctions in an amount of $487.50 against Plaintiff.

Code of Civil Procedure section 2033.280 provides that if a party to whom requests for admission are directed fails to serve a timely response, the party waives any objection to the requests. The requesting party may also move for an order that the genuineness of documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc. § 2033.280(a)-(b).) The court shall deem the matters admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (Code Civ. Proc. § 2033.280(c).)

Here, on March 2, 2022, Defendant served a Second Set of Requests for Admission on Plaintiff by mail. (Rose Decl., ¶ 2; Ex. A; ROA 34.) Plaintiff and Defendant’s counsel met and conferred with Defendant granting two extensions for responses, but to date, no responses have been received. (Rose Decl., ¶¶ 3-7; Exs. B to E.)

As a result of Plaintiff’s failure to serve responses to the requests, Plaintiff has “waive[d] any objection to the requests, including one based on privilege or on the protection for work product . . . .” (Code Civ. Proc. § 2033.280(a).) Thus, unless Plaintiff serves responses that are in substantial compliance with Code of Civil Procedure section 2033.220 prior to the hearing, the Second Set of Requests for Admission, are deemed admitted. (See Code Civ. Proc. §2033.280(c).)

Therefore, the Court GRANTS Defendant’s Motion for an Order Deeming Defendant’s Second Set of Requests for Admission admitted.

Monetary Sanctions

Pursuant to Code of Civil Procedure section 2033.280(c), “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated [the] motion.” (Code Civ. Proc. § 2033.280(c).)

Here, Plaintiff’s failure to serve timely responses to Plaintiffs’ Requests for Admissions, Set One, necessitated the filing of the instant motion. However, the request for monetary sanctions sought in the notice of motion is not accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. As a result, the Court DENIES the monetary sanctions.

Defendant shall give notice.