Judge: Richard Y. Lee, Case: 30-2022-01242035, Date: 2022-09-22 Tentative Ruling
DISCOVERY MOTIONS
Defendant, Eric Zamucen (“Defendant”) has filed four discovery motions seeking the following:
• An order compelling Plaintiff, I.S. Investments, LLC (“Plaintiff”) to provide verified answers to Defendant’s First Set of Special and Form Interrogatories, and awarding monetary sanctions against Plaintiff in the sum of $1,108.50.
• An order compelling Plaintiff to provide verified responses and production of documents in response to Defendant’s First Set of Inspection Demands, and awarding monetary sanctions against Plaintiff in the amount of $1,108.50.
• An order deeming the truth of all matters specified in Request for Admissions, Set One, served on Plaintiff, admitted, and awarding monetary sanctions against Plaintiff in the amount of $1,108.50.
Subsequent to the filing of the discovery motions, Plaintiff served responses to Defendant’s First Set of Form and Special Interrogatories; Inspection Demands; and Requests for Admission on April 4, 2022. (Declaration of Phillip B Greer (“Greer Decl.”), 1:8-14; Exs. A to D.)
The following facts are not in dispute:
• On February 9, 2022, Defendant, Eric Zamucen served his First Set of Form and Special Interrogatories; Inspection Demands; and Requests for Admission on February 9, 2022, by mail. (Declarations of Anthony Ditty, ¶ 2; Ex. A.)
• Responses to this discovery were due on March 16, 2022. No extensions were requested or granted. To date, no responses have been provided. No documents have been produced. (Declarations of Anthony Ditty, ¶ 3.)
• The instant discovery motions were filed on March 28, 2022.
• Responses to the discovery were served on April 4, 2022. (Declaration of Phillip B. Greer (“Greer Decl.”), at 1:8-14; 2:6; Exs. A through D.)
• In addition, on May 24, 2022, during the deposition of Ian Waddell, Plaintiff’s counsel served Defendant’s counsel with a “third binder containing several hundred additional pages of documents which were . . . . responsive to the initial discovery requests.” (Greer Decl. at 1:15-19.)
Form and Special Interrogatories
Responses to interrogatories must be signed under oath by the party to whom the interrogatories are directed. (CCP § 2030.250(a).) An unverified response is ineffective and is equivalent to no response at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636; Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914.)
The trial court retains the authority to hear the motion even if a party provides an untimely response that does not contain objections and that sets forth legally valid responses to each interrogatory. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.)
Here, as noted above, responses to Defendant’s First Set of Form Interrogatories and Special Interrogatories were served on April 4, 2022. To the extent that Defendant claims that the responses to the Form Interrogatories are evasive or not code-compliant, and the verification is defective, these are issues for a motion to compel further responses. There is no indication that Defendant attempted to meet and confer as to the claimed deficiencies. Thus, the Court DENIES as MOOT the motion to compel answers to Defendant’s First Set of Form Interrogatories.
However, as Defendant notes, there is no verification to the responses to Special Interrogatories. (See Ex. C to Greer Decl.) Thus, the Court GRANTS the motion to compel answers to the First Set of Special Interrogatories. Plaintiff is to provide a verification within 10 days of the notice of ruling.
Inspection Demands
As set forth above, Plaintiff’s responses to Defendant’s First Set of Inspection Demands was served on April 4, 2022.
Plaintiff’s arguments that the responses are not code-complaint, that the verification is inadequate; that the response or production is deficient; that Plaintiff’s withholding of documents on the basis of attorney-client privilege is improper as Plaintiff waived the privilege due the failure to timely serve responses; and that good cause exists for the production of documents sought are matters for a meet and confer for deficient responses and a motion to compel further responses.
Thus, the Court DENIES as MOOT the motion to compel responses to Defendant’s First Set of Inspection Demands.
Requests for Admission
As noted above, Plaintiff served responses to Defendant’s First Set of Requests for Admission on April 4, 2022.
That the responses are not code-compliant, or that the verification is inadequate, is a matter for a motion to compel further responses.
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. (CCP § 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. (CCP § 2033.280(c).)
Here, Plaintiff’s responses are in substantial compliance with CCP § 2033.220. They consist solely of denials. (Ex. A to Greer Decl.) Thus, the Court DENIES as MOOT the motion to deem Defendant’s First Set of Requests for Admission Admitted.
Defendant’s Requests for Sanctions
Defendant correctly argues in reply that the motion is not moot as to sanctions.
“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).)
“[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].) For a motion to deem requests for admission admitted, it is mandatory for the court to impose a monetary sanction on the party or attorney, or both, who failed to serve timely responses to the requests for admission, and thus necessitated the motion. (Code Civ. Proc. § 2033.280(c).)
Here, there is no showing that Plaintiff acted with substantial justification in failing to provide timely responses, or that other circumstances make the imposition of the sanction unjust. In addition, Plaintiff’s failure to timely serve responses to the requests for admission necessitated this motion such that monetary sanctions are mandatory for that motion.
Defendant’s counsel provides that he has expended approximately 7 hours in preparing all of the motions and that he has allocated that time between the motions equally. (Declaration of Anthony T. Ditty ISO Motion to Compel Answers to FROG and SPROG, ¶ 20; Declaration of Anthony T. Ditty ISO Motion to Compel Responses to Inspection Demands, ¶ 18; Declaration of Anthony T. Ditty ISO Motion to Deem RFAs Admitted, ¶ 19.) He also provides that his hourly rate is $450 per hour, and that there is a filing fee of $60 for each motion. (Declaration of Anthony T. Ditty ISO Motion to Compel Answers to FROG and SPROG, ¶ 21; Declaration of Anthony T. Ditty ISO Motion to Compel Responses to Inspection Demands, ¶ 19; Declaration of Anthony T. Ditty ISO Motion to Deem RFAs Admitted, ¶ 20.)
In the reply, Defendant seeks additional attorney’s fees and costs for the reply and to appear at the hearing. Specifically, Defendant’s counsel provides that he has expended approximately 4.5 hours preparing the reply for the motion to compel answers to form and special interrogatories, and requests $37.50 for the costs of filing and service by way of One Legal. (Reply Ditty Decl. ISO Motion to Compel Answers to FROG and SPROG, ¶¶ 11-12.)
Defendant’s counsel also provides that he expended approximately 4 hours reviewing the opposition and drafting the reply for the motion to compel responses to inspection demands, as well as incurred $36.50 in filing and service fees for the motion and reply through One Legal. (Reply Ditty Decl. ISO Motion to Compel Responses to Inspection Demands, ¶ 9.)
Further, Defendant’s counsel provides that he spent 1 hour reviewing the opposition and drafting the reply to the motion to deem requests for admission admitted. (Reply Ditty Decl. ISO Motion to Deem RFAs Admitted attached to Reply, 3:13-17.)
These are straightforward motions which are largely duplicative. The Court finds the following reasonable: 2 hours for each of the three filed motions, including drafting moving and reply papers and reviewing the opposition, at an hourly rate of $450 ($2,700), plus costs including $60 filing fees for 3 motions ($180). While it is unclear what portion of the costs in the amounts of $37.50 and $36.50 are made up of filing fees and what portion is made up of service fees, the Court will also allow those costs.
Thus, the Court AWARDS Defendant monetary sanctions in the amount of $2,954 against Plaintiff, to be paid within 30 days of the notice of ruling.
Defendant’s Objections to the Declaration of Phillip B Greer
The Court SUSTAINS all objections, Objection Nos. 1 through 4 to the Declaration of Phillip B Greer.
Defendant to give notice.
MOTION FOR JUDGMENT ON THE PLEADINGS
Defendants, Eric Zamucen and Sheila Zamucen (“Defendants”) move for an order granting judgment on pleadings as to First, Second, Third, Fourth, and Fifth Causes of Action, as to each cause of action individually and, alternatively, as to all causes of action, collectively, pursuant to Code of Civil Procedure section 438 as well as the common law non statutory basis for motions for judgment on the pleadings. (See Notice of Motion, 2:2-4.)
Code of Civil Procedure section 439(a) provides that “[b]efore filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (CCP § 439(a).)
Further, the moving party shall file a declaration with the motion stating either “(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings. (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (CCP § 439(a)(3).)
Here, Defendants have not filed a declaration as required by Code of Civil Procedure section 439(a)(3), and it does not appear to the Court that Defendants met and conferred as required by Code of Civil Procedure section 439(a).
The Court ORDERS the parties to meet and confer in person, by zoom or video remote technology, or over the telephone concerning the issues raised in the motion for judgment on the pleadings as required by Code of Civil Procedure section 439(a). Defendants’ counsel to file and serve a declaration no later than nine (9) court days before the hearing date describing the parties’ meet and confer efforts, and specifying what issues have been resolved, or remain for the Court to resolve. If no declaration is timely filed, the Court will construe this to mean that the issues have been resolved and will take the motion for judgment on the pleadings off-calendar.
Defendants’ motion for judgment on the pleadings is CONTINUED to October 13, 2022 at 1:30 p.m..
Defendants to give notice.