Judge: Ronald F. Frank, Case: 21TRCV00073, Date: 2022-10-26 Tentative Ruling
Case Number: 21TRCV00073 Hearing Date: October 26, 2022 Dept: 8
TENTATIVE RULINGS
HEARING DATE: Wed. October 26, 2022 JUDGE /DEPT: Frank/8
CASE NAME: Iman Peykar,
an individual v.
BMW
of North America, LLC, et al. COMP. FILED: 02/02/21
CASE NUMBER: 21TRCV00073
TRIAL DATE: 5/24/23
PROCEEDINGS: 1. MOTION TO COMPEL (MTC) RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE; DEEM OBJECTIONS WAIVED; REQUEST FOR SANCTIONS
2. MTC RESPONSES TO FORM ROGS,
DEEM OBJECTIONS WAIVED AND REQUEST FOR SANCTIONS
3. MTC RESPONSES TO DFPS, DEEM OBJECTIONS
WAIVED, AND REQUEST FOR SANCTIONS
4. MOTION TO DEEM RFAS ADMITTED, DEEM OBJECTIONS
WAIVED, AND REQUEST FOR SANCTIONS
5. DEFENDANT’S MOTION FOR RELIEF FROM DEEMED
ADMISSIONS AND FROM DEEMED WAIVER OF OBJECTIONS
MOVING PARTY: Plaintiff, Iman Peykar (except as to Motion for Relief)
RESP. PARTY: Defendant, BMW of North America, LLC (same exception)
TENTATIVE RULINGS:
2.
Plaintiff’s Motion
to Compel (MTC) Responses to Form Interrogatories, Set One (FRogs) is DENIED. The concomitant and included motion to determine
that Defendant has waived its right to object to the FRogs is also denied, the Court
finding good cause to relieve Defendant from its counsel’s mistake and
excusable neglect.
3.
Plaintiff’s Motion to Compel (MTC) Responses to Demand
for Production of Documents, Set One (DFP) is DENIED. The concomitant and included motion to determine
that Defendant has waived its right to object to the DFP is also denied, the Court
finding good cause to relieve Defendant from its counsel’s mistake and
excusable neglect.
4.
Plaintiff’s Motion to have Request for
Admission, Set One (RFAs) deemed admitted is DENIED. The concomitant and included motion to determine
that Defendant has waived its right to object to the RFAs is also denied, the Court
finding good cause to relieve Defendant from its counsel’s mistake and
excusable neglect.
5.
The Court denies the Defendant’s motion for relief from
deemed admissions, which is mooted by the Court’s ruling as to the RFA motion, which
was filed prematurely, and which motion was filed without compliance with the requirements
for ex parte applications.
7.
Although not requested by any of the Plaintiff’s
discovery motions, as a condition of its granting essentially CCP section
473(b) relief from the failure to have timely served any discovery responses, the
Court further orders Defendant to provide substantive, verified responses to
all four sets of discovery that are the subject of these motions, and to
produce responsive documents identified in those responses, no later than
November 28, 2022.
ANALYSIS:
I. Background
Plaintiff
Iman Peykar (“Plaintiff”) filed this “Lemon Law” action against Defendant BMW
of North America, LLC (“Defendant”) on February 2, 2021, concerning a 2018
model year 5-series sedan. Defendant filed an Answer on March 29, 2021. The progress of this action was arguably
delayed by two months while Defendant’s motion to compel arbitration was
pending; it was not denied until January of 2022. But apparently no written discovery was
requested or responded to during the first year of this lawsuit’s pendency. Accordingly, the urgency claimed by Plaintiff
in his argument of the prejudicial impact of Defendant’s discovery shortcomings
must be taken with a grain of salt.
On April 17, 2022,
Plaintiff’s counsel propounded and served Defendant’s counsel a set of Form
Interrogatories, Special Interrogatories, Requests for Admissions, and Requests
for Production of Documents. This discovery is very typical in a Lemon Law case
and is typically the first round of the plaintiff’s request for information
from the defendant. Because written
discovery requests were served electronically, responses were due no later than
May 19, 2022. (Code Civ. Proc. §§ 2030.260, 1010.6.) Plaintiff’s counsel did
not receive any responses on May 19, 2022.
Approximately two weeks later, on June 4, 2022, Plaintiff’s counsel sent
a letter via electronic mail to Defendant’s counsel informing them that all
four of the responses to Plaintiff’s discovery requests were overdue.
Plaintiff’s letter requested a response within 3 days and requested that
Defendant’s provide complete, verified responses, without objections to
Plaintiff’s written request for Request for Admission, form and special
interrogatories, and document demands, by June 10, 2022. Defendant’s current handline attorney, Ms. Chun,
stated that the previous handling attorney (who she never identifies by name
but could be Ms. Harutounian) had not seen the discovery requests because the
discovery requests were placed in that attorney’s spam folder, and was not sent
to the proper email at her firm for opposing counsel to transmit and serve
digital documents such as discovery requests served by email. (Chun Decl., ¶ 5.) Due to this, discovery
responses were not calendared at all, and Defendant missed the deadline. (Ibid.)
There is no declaration from the “prior handling attorney,” presumably because
he or she is on an extended leave of absence.
On June
10, 2022, the very short deadline required by Plaintiff to provide the verified
responses to the now tardy RFAs, Frogs, SRogs, and RFPs, Defendant served its unverified
responses. (Chun Decl., ¶ 6; Exhibits F,
G, H, I.) Plaintiff claims that upon review of Defendant’s responses,
Plaintiff’s counsel observed that Defendant’s responses were “riddled with
boilerplate objections and no verification to the responses was provided.
(Ahoubim Decl., ¶ 9.) Generally, an unverified discovery response is often
treated as akin to no response at all, as Plaintiff points out in his
Opposition to the ex parte motion for relief.
(See Appleton v Superior Court (1988) 206 Cal.App.3d 632, 636). The 45-day deadline in which to file a motion
to compel does not run until a verification for a discovery response is
provided.
Plaintiff
filed a Motion for an order that the truth of the requests for admission be
deemed admitted, and Request for monetary Sanctions on September 12, 2022. Plaintiff
also filed motions to compel response to the other three discovery sets, i.e.,
the FRogs, SRogs, and DFPs, also seeking a ruling that the boilerplate objections
had been waived and seeking approximately $2,400 in monetary sanctions in each
of the other discovery motions. Defendant
filed oppositions to all four discovery motions on October 12, 2022, and on
Friday, October 21, 2022 Defendant also filed an ex parte application for
relief from waiver of objections and relief from the RFAs being deemed
admitted, setting a hearing set one court day later, Monday, October 24,
2022. The Court heard the ex parte
application and ordered that the hearing on the Motion for Relief be held two
days later, on October 26, 2022, consolidating the hearings on the four
discovery motions so that all five motions could be heard on the same day. This was because they all raise the same
issues of waiver of the right to object, Defendant’s asserted mistake / good
faith basis for the failure to respond in time, and propriety of monetary
sanctions.
II. Legal Standard
A party must respond to
interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260,
subd. (a).) If a party to whom interrogatories are directed does not provide
timely responses, the requesting party may move for an order compelling responses
to the discovery. (Code Civ. Proc., § 2030.290, subd. (b).) The party also
waives the right to make any objections, including one based on privilege or
work-product protection. (Code Civ. Proc., § 2030.290, subd. (a).) There is no
time limit for a motion to compel responses to interrogatories other than the
cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., §
2024.020, subd. (a); Code Civ. Proc., 2030.290.) No meet and confer efforts are
required before filing a motion to compel a lack of any response to the
discovery. (Code Civ. Proc., § 2030.290; Sinaiko Healthcare Consulting, Inc.
v. Pacific Healthcare Consultants (2007)
148 Cal.App.4th 390, 411.)
Code of Civil Procedure section
2023.030, subdivision (a) provides, in pertinent part, that the court may
impose a monetary sanction on a party engaging in the misuse of the discovery
process to pay the reasonable expenses, including attorney’s fees, incurred by
anyone as a result of that conduct. A misuse of the discovery process includes failing
to respond or submit to an authorized method of discovery. (Code Civ. Proc., §
2023.010, subd. (d).)
Similar rules apply to the DFP; with
respect to RFAs, instead of compelling a response the law authorizes the
requesting party to make motion to order the Requests to be deemed
admitted. RFAs are a different form of
discovery, in that they are often used like a stipulation to avoid the need for
proof of a fact. In a case like this where
the requesting party propounds RFAs covering each element of the plaintiff’s
case in chief and covering typical affirmative defenses, an order deeming all RFAs
to be admitted would be tantamount to entering a default judgment in plaintiff’s
favor.
III. Analysis
Deem Objections Waived
Plaintiff
asserts that Defendant’s objections to the SRogs, FRogs, DFP and RFAs must be
deemed waived. Where a party fails to serve timely responses to
discovery requests, the court may make an order compelling responses. (Code
Civ. Proc., §§ 2030.290, 2031.300.) When a party has waived its objections due
to an untimely response, the Court may relieve one from that waiver under the
circumstances set forth in the Code of Civil Procedure. (Zellerino v. Brown
(1991) 235 Cal.App.3d 1097, 1107.) Specifically, the Court, on Motion, may
relieve the moving party from waiver if the party has satisfied two conditions.
(Id.) The two conditions that must be satisfied are: (1) the party has
subsequently served a response that is in substantial compliance with Code of
Civil Procedure sections 2031.210, 2031.220, 2031.230, 2031.240 and 2031.280;
and (2) the party’s failure to serve a timely response was the result of
mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2031.300,
subd. (a)(1)-(2).) Defendant satisfies both conditions here.
According to Defendant’s opposition,
Defendant’s counsel did not serve timely responses to the Special
Interrogatories due to a clerical error when the discovery requests were
accidently sent to one of the handling attorney’s spam inbox. (Chun Dec., ¶ 5.)
Courts recognize the need to grant relief where the requesting party shows
reasonable efforts to resolve the error and a reasonable basis for the error. (Mannino
v. Super (1983) 142 Cal.App.3d 776) Courts have defined “inadvertence” as
the “lack of heedfulness, or attentiveness, inattention, fault from
negligence.” (Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276; Baratti
v. Baratti (1952) 109 Cal.App.2d 917, 921). “Excusable neglect” is defined
as “neglect which might have been an act of a reasonably prudent person under
the same circumstances.” (Id.) Here, Defendant’s clerical error falls
within the scope of “mistake, inadvertence, or excusable neglect.” Defendant
served responses to all of the untimely responses less than a week from
becoming aware of the issue. (Chun Dec., ¶ 6.)
Defendant claims its responses are in substantial
compliance with the Code of Civil Procedure. (Chun Dec., ¶ 5.) The substantial
compliance doctrine is “commonly understood to mean ‘compliance with the substantial
or essential requirements of something (as a statute or contract) that
satisfies its purpose or objective even though its formal requirements are not
complied with.’” (In Re A.V. (2017) 11 Cal.App.5th 697, 709.) After
review of Defendant’s responses, the Court finds that Defendant’s responses to
Plaintiff’s SRogs, Frogs, DFP, and RFAs are in substantial compliance with Code
of Civil Procedure, at least to the extent that had those responses been served
by May 19 there would not have been a need for Plaintiff to have to file any of
the four subject discovery motions. That
is not to say that the responses are even close to adequate. A cursory review of the unverified responses
reveals that they provide no substantive information, no names of witnesses, no
documents are identified or produced, and essentially they are useless to the propounding
party. The Court would have expected Defendant
to have served detailed, substantive, and verified responses in the intervening
months before these four discovery motions came on for hearing as a way to moot
the motions to compel and to blunt the request for monetary sanctions. That was not done here, which the Court will
further address below.
The Court finds good cause to relieve Defendant
from its counsel’s mistake and excusable neglect. As a condition of its granting what is
essentially CCP section 473(b) relief from counsel’s mistaken failure to have
timely provided discovery responses, the Court further orders Defendant to
provide substantive, verified responses and to produce responsive documents
identified in those responses no later than November 18, 2022. Diligently doing so will enable Defendant to avoid
another round of motions to compel, i.e., motions for further responses, and
will ensure that this litigation is placed back on track for both sides to be
prepared for ADR, trial preparation, and trial.
Discovery Sanctions
Plaintiff has
requested that the Court impose monetary sanctions against Defendant and its
counsel. Code of Civil Procedure
section 2023.030, subdivision (a) provides, in pertinent part, that the court
may impose a monetary sanction on a party engaging in the misuse of the
discovery process to pay the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct. A misuse of the discovery
process includes failing to respond or submit to an authorized method of
discovery. (Code Civ. Proc., § 2023.010, subd.(d).) Sanctions are mandatory
for a party making or opposing a motion, except when the party making or
opposing the motion is determined by the Court to have been acting with
substantial justification, or that other circumstances would render the
imposition of sanctions unjust. (Code Civ. Proc., § 2031.300, subd. (c).) Under
the Civil Discovery Act, the Court is only entitled to impose monetary sanctions in the amount
of “reasonable expenses, including attorney’s fees, incurred by anyone as a
result of” the misuse of discovery. (Code Civ. Proc., § 2023.030, subd. (a).) The
purpose of discovery sanctions is “not to provide a weapon for
punishment, forfeiture and the avoidance of a trial on the merits, but to
prevent abuse of the discovery process and correct the problem presented.” (Parker
v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.)
Consequently, “[t]he trial court cannot impose sanctions for misuse of
the discovery process as a punishment.” (Doppes v. Bentley
Motors, Inc. (2009) 174
Cal. App. 4th 967, 992.)
Here,
Plaintiff requests sanctions against Defendant and Defendant’s counsel in the
sum of $2,468.91 for the SRogs motion and approximately $2400 for each of the other
three discovery motions. Plaintiff asserts that this amount is comprised of
counsel’s time filing the motion, review of contentions in opposition, and
appearing at the hearing for the motion. Plaintiff’s counsels’ hourly rate is claimed
to be $400 an hour, which Plaintiff contends is appropriate for two attorneys
licensed in California and Nevada specializing in Lemon Law in both states. In total, Plaintiff’s counsel is requesting
sanctions for the total of six hours with respect to each motion and the
related reply briefing motions and court appearances to follow. Plaintiff also
requests $61.50 for fees associated with reserving a hearing for each Motion,
and $7.26 for each filing fee. The Court
is intimately familiar with the amount of time it takes or should take to
prepare discovery motions and discovery response in Lemon Law cases both from
its experience in over 30 years of private civil practice as a lawyer (two
decades of which included handling Lemon Law cases brought against motor vehicle
and motorcycle manufacturers and their dealers through trial and appeal), and from
over 7 years on the bench.
The Court awards monetary discovery
sanctions to Plaintiff and against the Defendant’s law firm in the amount of
$2,000 per discovery motion for a total of $8,000. The amount is payable no
later than November 28, 2022 unless stayed by further order of this Court or
the Court of Appeal. The sanctions are
warranted for the reasons outlined in the declarations of Plaintiff’s counsel
in support of each of the four discovery motions, plus the absence of any
evidence that even as to today any verified responses or supplemental substantive
responses have been served. Lawyers who
intend to have incoming e-served documents such as discovery requests delivered
to a dedicated address must give written notice to opposing counsel of such an
address if they intend to rely on service to such an address. Lawfirms with attorneys who are reassigned to
other matters or who go on leaves of absence must make provisions for
monitoring or re-directing incoming emails so that deadlines are not missed,
client or opposing counsel communications are timely responded to, and to
ensure proper client representation. The
monetary sanctions here are imposed to compensate Plaintiff’s counsel for the
time and effort reasonably incurred in bringing these motions, to prevent discovery misuse, and to correct the problems
presented here.
IV.Conclusion & Order
Plaintiff’s three discovery motions to
compel, the fourth motion to have the RFAs deemed admitted, and to determine
that Defendant has waived its right to object to the SRogs, Frogs, DFP, and
RFAs are denied, the Court finding good cause to relieve Defendant from its
counsel’s mistake and excusable neglect.
The Court denies the Defendant’s motion for relief from deemed
admissions.
Monetary
discovery sanctions are awarded to Plaintiff and against the Defendant’s law
firm in the amount of $2,000 per discovery motion for a total of $8,000,
payable no later than November 28, 2022.
As a condition of its granting essentially CCP section
473(b) relief from the failure to have timely served any discovery responses,
the Court further orders Defendant to provide substantive, verified responses
to all four sets of discovery that are the subject of these motions, and to
produce responsive documents identified in those responses, no later than
November 28, 2022.
Moving party is ordered to give
notice.