Judge Ronald F. Frank, Case 21TRCV00455 2022-12-07 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00455, Date: 2022-12-07 Tentative Ruling

Case Number: 21TRCV00455 Hearing Date: December 7, 2022 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: December 7, 2022¿¿

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CASE NUMBER: 21TRCV00455

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CASE NAME: Dyck-O’Neal Inc. V. Eric Dunn, et al

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MOVING PARTY: Plaintiff, Dyck-O’Neal Inc

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RESPONDING PARTY: None

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TRIAL DATE: None Set.¿

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MOTION:¿ (1) Motion to Compel Defendant to Respond to Set One of Special Interrogatories, Form Interrogatories, and Requests for Admission

(2) Motion to Deem Requests for Admission Admitted

(2) Request for Sanctions

Tentative Rulings: (1) Plaintiff’s Motions to Compel responses are GRANTED.

(2) Plaintiff’s Motion to Deem Requests for Admissions as Admitted is GRANTED.

(3) Plaintiff’s Request for Sanctions is GRANTED in the amount of $1,500.

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I. BACKGROUND¿¿¿

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A. Factual¿¿¿

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On June 21, 2021, Plaintiff, Dyck-O’Neal, Inc. (“Plaintiff”) brought this action against Defendant, Eric Dunn (“Defendant”), and DOES 1 through 10 alleging causes of action for: (1) Breach of Contract; (2) Breach of Guaranty on the Lake Henson Loan; and (3) Breach of Guaranty on the Marseilles Loan.

On October 4, 2021, Plaintiff served Defendant via first-class mail with Set One of its Special Interrogatories, Form Interrogatories, and Requests for Admission. The original deadline to serve responses to Plaintiff’s discovery requests was November 15, 2021. (Declaration of Kelsey L. Thwaits (“Thwaits Decl.”), ¶ 4.) Defendant did not serve responses. (Thwaits Decl., ¶ 4.) Plaintiff claims that on December 6, 2021, Plaintiff overnighted a letter to Defendant requesting he provide discovery responses no later than December 20, 2021. (Thwaits Decl., ¶ 5, Exhibit B.) On December 17, 2021, Plaintiff claims that, through counsel, conferred with Defendant, and granted an extension to respond to discovery by January 19, 2022. (Thwaits Decl., ¶ 6.) On February 9, 2022, Plaintiff sent a second letter to Defendant to request responses no later than February 18, 2022. (Thwaits Decl., ¶ 7, Exhibit C.) Plaintiff claims that as of the date this motion was filed, August 4, 2022, Defendant has failed to respond to Plaintiff’s discovery requests. (Thwaits Decl., ¶ 8.)

B. Procedural¿¿¿

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On August 4, 2022, Plaintiff filed these motions to compel and deem admitted Requests for Admission. No opposition has been filed as of the day before the hearing, 4 months after the motions were filed.

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¿II. MEET AND CONFER ¿¿¿

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Plaintiff has met its meet and confer requirements on multiple occasions. Exhibit B indicates that on December 6, 2021, Plaintiff sent a letter to Defendant attempting to resolve the aforementioned deficiencies without judicial involvement and granting Defendant an extension to serve their responses. Additionally, Exhibit C indicates that on February 9, 2022, Plaintiff sent another meet and confer letter – again, granting Defendant an extension to serve their responses. A still further meet and confer declaration was field on August 4, 2022.

¿III. ANALYSIS¿¿

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A. Motions to Compel Responses

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 responses to the discovery. (Code Civ. Proc., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)¿ ¿

If a party to whom request for admissions are served fails to provide a timely response, the party to whom the request was directed waives any objections, including based on privilege or the work product doctrine. CCP § 2033.280(a). The requesting party can move for an order that the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for monetary sanctions. CCP § 2033.280(b). The court shall issue this order unless the party to whom the request was made serves a response in substantial compliance prior to the hearing on the motion. (Code Civ. Proc., § 2033.280(c).)

Here, Defendant has filed to respond to any of Plaintiff’s discovery requests despite numerous extensions. As such, the Court GRANTS Plaintiff’s motion to compel responses to its discovery requests and orders Defendant to provide verified answers, without objections, no later than January 6, 2023.

B. Request to Deem Requests for Admission Admitted

Under Code of Civil Procedure § 2033.280(c), the court shall make the order deeming the truth of the matters admitted unless the responding party serves before the hearing a proposed response to the requests for admission that is in substantial compliance with Code Civ. Proc § 2033.220. Code of Civil Procedure § 2033.220 requires that each answer either admits, denies or specifies that the responding party lacks sufficient information or knowledge. As stated in Demyer v. Costa Mesa Mobile Home Estates, the moving party is not required to meet and confer before bringing this action. (Demyer v. Costa Mesa Mobile Home Estates, 36 Cal.App.4th 393, 395.)¿¿

Here, Defendant has completely failed to respond to Plaintiff’s Requests for Admission despite numerous attempts to meet and confer and the granting of extensions. Plaintiff filed these motions on August 4, 2022 and has had almost four (4) months to file a response or objection prior to the hearing. Because Defendant has not filed a response or opposition, this Court GRANTS Plaintiff’s Motion to Deem Requests for Admission Admitted.

C. Sanctions

Plaintiff has requested that this 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(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.)

Plaintiff’s assert that as a result of Defendant’s failure to respond to Plaintiff’s discovery requests, Plaintiff has incurred the expense of filing its Motion to Compel, in the amount of $2,253.30, which is comprised of $2,130.00 in reasonable attorneys’ fees and $123.30 in costs incurred. (Thwaits Decl., ¶ 9.) Plaintiff has attached a Fee and Cost Ledger as Exhibit 4 outlining that her hourly rate is $300 per hour. Because Defendant has failed to respond to any of Plaintiff’s discovery requests despite numerous extensions, and multiple meet and confer attempts, this Court GRANTS Plaintiff’s request for sanctions in the amount of $1,500, payable on or before January 6, 2023.¿¿¿¿

Moving party is ordered to give notice.¿¿¿¿¿

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