Judge: Richard Y. Lee, Case: 30-2021-01211704, Date: 2022-07-28 Tentative Ruling

Plaintiff Jennifer Apalategui ex rel. Carol Cooper’s (“Plaintiff”) filed essentially the following four motions:  (1) Motion to Compel Answers to Form Interrogatories; (2) Motion to Compel Answers to Special Interrogatories, ROA # 33; (3) Motion to Compel Production, ROA #39; and (4) Motion to Deem Facts Admitted, ROA #44.  Plaintiff has improperly combined the motion to compel answers to both form and special interrogatories into one motion.

Plaintiff did not provide a Proof of Service

Plaintiff failed to file any proof of service with her motions at issue.  Pursuant to Code of Civil Procedure sections 1013a and 1013b, documents served and filed must be accompanied by a proof of service establishing the means by which the documents were served.  (See Code Civ. Proc., §§ 1011, 1013, 1013a, 1013b; see also Cal. Rules of Court, rules 1.21, 2.251.)

Pursuant to California Rules of Court, rule 3.1300(c), “[p]roof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”  (Cal. Rules of Court, rule 3.1300, subd. (c).) 

Here, Plaintiff failed to file any proofs of service relating to the motion.  The court notes that Plaintiff provided a proof of service relating to her Supplemental Declaration, ROA # 53.

Although Plaintiff’s failure to file these proofs of service give cause to deny the motions, the motions are deemed moot because Defendant served responses to the discovery at issue on July 12, 2022.

Motions to Compel

Plaintiff moves to compel answers to form and special interrogatories and requests for production pursuant to Code of Civil Procedure sections 2030.290 and 2031.300. 

On July 12, 2022, Defendant Albertsons, LLC (“Defendant”) provided responses to the discovery at issue.  (ROA # 49, Declaration of Jonathan Termechi (“Termechi Decl.”), ¶ 8; ROA # 50, Termechi Decl., ¶ 8; ROA # 51, Termechi Decl., ¶ 8.)  Whether Defendant’s supplemental responses are sufficient is not an issue before the court as they were served following the filing of this motion. 

As such, the motions to compel are deemed MOOT.

Motion to Deem Facts Admitted

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.  (Code Civ. Proc., § 2033.280.)

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).)

Defendant provided responses to the requests for admission at issue on July 12, 2022.  As such, this motion is also MOOT.

Sanctions

Plaintiff seeks $1,400 in sanctions for each of her three motions pursuant to Code of Civil Procedure sections 2030.290(c), 2031.300(c), and 2033.280(c). 

Typically, monetary sanctions are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories or requests for production, 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) and 2031.300, subd. (c).)

Moreover “[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 this motion.”  (Code Civ. Proc., § 2033.280, subd. (c).)

Here, however, Plaintiff failed to file proofs of service with her motions and requests for sanctions.  On this ground, the requests for sanctions are DENIED.  Moreover, since defendants have now served their responses, discovery is proceeding and the imposition of sanctions appears unwarranted. (See Code Civ. Proc., §§ 1011, 1013, 1013a, 1013b; see also Cal. Rules of Court, rules 1.21, 2.251, and 3.1300, subd. (c).) 

Defendant Albertsons, LLC to provide notice.