Judge Ronald F. Frank, Case Number: 23TRCV01111, Date: 2024-01-12 Tentative Ruling

Tentative Rulings: (1), (2), (3) The substantive motions are largely MOOTED by Defendant’s attachment to its Opposition the verified answers to interrogatories and admission or denials of the subject RFAs. The Court orders Defendant to properly serve original, wet-inked, verified responses to the 3 sets of subject discovery by January 26, 2024. The propriety of the responses may well be the subject of a future motion after a meet-and-confer process. The Court DENIES the motion to deem the RFAs admitted since Defendant provided verified admissions and denials prior to the hearing on the motion.

(4) GRANTS Plaintiff’s Request for Sanctions against Defendants and their counsel of record in the amount of $3, 250, payable to Plaintiff’s counsel on or before January 31, 2024

On April 14, 2023, Plaintiff, Commonwealth Plaza, LLC (“Plaintiff”) filed a Complaint against Defendants, Farzin Rousta aka Fred Rousta, individually and dba Money Mortgage, and DOES 1through 25. The Complaint alleges causes of action for: (1) Breach of Contract; and (2) Common Counts.

Plaintiff notes that on June 26, 2023, Plaintiff served Requests for production of Documents, set one and Form Interrogatories, Set One on Defendant, Money Mortgage.

Plaintiff also notes that on June 26, 2023, Plaintiff served Requests for Production of Documents and Form Interrogatories, Set One on Defendant, Rousta.

Lastly, Plaintiff contends that on June 26, 2023, Plaintiff served Requests for Admission, Set One on Defendant Rousta.

Plaintiff notes that responses were due on or before July 28, 2023. After not receiving a response, Plaintiff notes that counsel for Plaintiff requested responses from Defendant by August 11, 2023. However, Plaintiff asserts that as of the filing of the motions, Defendants had not responded to any of the propounded discovery, thus justifying the motions to compel initial responses.

On September 8, 2023, Plaintiff filed these Motions to Compel and Requests to Deem Request for Admission Admitted. On January 2, 2024, Defendants filed oppositions and attached copies of the discovery responses, which were verified and did not contain objections. On January 4, 2024, Plaintiff filed a reply brief asserting that Defendant “has not properly served” its responses to the three discovery sets at issue and did not produce any responsive documents. Normally, lawyers use the phrase “has not properly served” to mean that the discovery response was received but the original responses were not mailed or delivered with the wet ink verifications as required by the Discovery Act.

II. ANALYSIS

Motions to Compel Responses to Form Interrogatories and Requests for Production of Documents, Set one

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

Further, where there has been no timely response to a Code of Civil Procedure § 2031.010 demand, the demanding party must seek an order compelling a response. (CCP § 2031.300.) Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of "good cause" is required.¿

Here, while Plaintiff requests this Court to order Defendants Money Mortgage and Rousta to answer Plaintiff’s Form Interrogatories, Set One, and Requests for Production of Documents, Set One, and to deem the RFAs admitted, the Opposition attaches the verified discovery responses. Supplying verified responses prior to the hearing on the motion to compel an initial response ordinarily moots the substantive motion and begins a 45-day clock on a possible motion to compel further responses. However, service of belated verified responses does not moot the monetary sanctions request. In Plaintiff’s reply brief, Plaintiff notes that despite being attached to the opposition, Defendants have still failed to “properly serve” the written responses and failed to produce any responsive documents. Accordingly, the Court orders Defendants to properly serve original, wet-inked, verified responses to each of Plaintiff’s sets of discovery on or before January 26, 2024. Sanctions will be addressed below.

Motion to Deem Requests for Admission as Admitted

Additionally, Code of Civil Procedure section 2033.290, subdivision (a), provides that “[o]n receipt of a particular response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete[;] (2) An objection to a particular request is without merit or too general.”¿¿Notice of the motion must be given within 45 days of service of the verified response, otherwise the propounding party waives the right to compel a further response. (Code Civ. Proc., § 2033.290, subd. (c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2033.290, subd. (b).)¿¿¿¿

As noted above with respect to the interrogatories, the substantive motion to deem the RFAs admitted compel is mooted, but Defendant is ordered to provide and properly serve original, wet-inked, verified admissions or denials by January 26, 2024.

Sanctions

Here, Plaintiff seeks sanctions against Defendants which the Court is inclined to grant, but the numbers do not add up as the Court reviews the papers filed. In the original motions, Plaintiff sought for $995 for one of the motions and $895 for the other two motions plus $62.50 in costs per motion the three nearly identical motions in the amount of in the amount of $3,775 total. The Court’s arithmetic is different than Plaintiff’s counsel’s addition, as $995 plus $895 plus $895 equals $2,785, not the $3,775 requested. The Reply brief seeks $2,185, including a duplicate of the 1 hour spent on “this Motion” plus 2.5 paralegal hours on “this Motion” plus 2 hours of attorney time on the opposition review and reply preparation plus 1 hour or paralegal time. The Court assumes there are some unintentional glitches in these calculations or in the manner in which the amounts are being requested, but $990 in attorney time plus $200 hours in paralegal time would add up to $1,190 additional being sought for the consolidated reply beyond the $2,785 sought for the original three (not four) motions. The total sought is thus $3,975. Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel.¿¿(CCP. §§ 2030.290(c),¿2030.300(d),¿2031.300(c),¿and 2031.310(h).) However, sanctions are not mandatory if the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿¿(Id.)¿

The Court finds no substantial justification for Defendant’s tardiness in providing verified responses for the first time with its Opposition brief. Sanctions are thus mandatory. Because each of these motions are virtually the same, the hearing on all the motions will be the same, and Defendant did not file a substantive opposition nor did they file numerous oppositions, this Court GRANTS Plaintiff’s Request for Sanctions against Defendants (each of them depending on the motion against them) and their counsel of record in the amount of $3, 250, payable to counsel for Plaintiff by January 31, 2024.