Judge: Ronald F. Frank, Case: 23TRCV03434, Date: 2024-05-30 Tentative Ruling
Case Number: 23TRCV03434 Hearing Date: May 30, 2024 Dept: 8
Tentative Ruling
HEARING DATE: May 30, 2024
CASE NUMBER: 23TRCV03434
CASE NAME: Clara M. Ramirez; Jose P. Carrubba v. Christina Carrubba, et al.
MOVING PARTY: (1) Defendants, Christina Carrubba and Manuel Parra
RESPONDING PARTY: (1) Plaintiffs, Clara M. Ramirez and Jose P. Carrubba
TRIAL DATE: Not Set.
MOTION: (1) Defendants’ Motion to Compel Further Responses to Form Interrogatories, Set One against Plaintiff, Clara Ramirez
(2) Defendants’ Motion to Compel Further Responses to Special Interrogatories, Set One against Plaintiff, Clara Ramirez
(3) Defendants’ Motion to Compel Further Responses to Requests for Production of Documents, Set One against Plaintiff, Clara Ramirez
(4) Defendants’ Motion to Compel Responses to Requests that Plaintiff appear and give her Fingerprints against Plaintiff, Clara Ramirez
(5) Motion to Deem Requests for Admission as Admitted against Plaintiff, Clara Ramirez
(6) Requests for Monetary Sanctions
Tentative Rulings: (1)- (5) Discuss. If the requested discovery responses have been provided by the time of the hearing and those responses are verified and otherwise Code-compliant, the substantive motions would be mooted. If not, the Court is inclined to grant the 4 motions to compel and to continue the deemed admissions motion depending on when Plaintiff can provide verified admissions or denials.
(6) Requests for Monetary Sanctions is Continued to a date in early July to allow counsel to negotiate a reasonable figure or let the Court decide once the verified responses are all in hand
I. BACKGROUND
A. Factual
On October 16, 2023, Plaintiffs, Clara M. Ramirez and Jose P. Carrubba (collectively, “Plaintiffs”) filed a Complaint against Defendants, Cristina Carrubba, Manuel Angel Parra, and DOES 1 through 100. The Complaint alleges causes of action for: (1) Quiet Title; (2) Cancellation of Instrument; (3) Breach of Fiduciary Duty; (4) Declaratory Relief; (5) Elder Financial Abuses; and (6) Partition.
Defendant Parra asserts that on February 13, 2024, he propounded a Request for Plaintiff Clara Ramirez to give fingerprints. Further, on February 16, 2024, Parra propounded four sets of written discovery to Plaintiff, Clara Ramirez including: Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Production of Documents, Set One, and Requests for Admissions, Set One.
On March 15, 2024, defense counsel sent a letter reminding Plaintiff’s counsel that her scheduled fingerprinting was set for March 18, 2024, and that written responses to the propounded discovery items were due on March 22, 2024. On March 15, 2024, March 17, 2024, and March 18, 2024, Defendant notes that defense counsel emailed Plaintiff’s counsel asking if Ramirez would be appearing for her fingerprinting.
After Plaintiff failed to appear for her scheduled fingerprinting, and failed to provide any responses to Defendant Parra’s various discovery requests, defense counsel wrote to Plaintiff’s counsel asserting that Plaintiff had waived objections and sought tardy written responses without objection. According to Defense counsel, that same email noted that Defendant still wanted to informally work out a date to take Ramirez’s fingerprints, yet Defendant was not receiving any responses to his prior requests.
On April 12, 2024, Defendant notes defense counsel sent Plaintiff a meet and confer letter on each of the outstanding written discovery items propounded by Defendant in February 2024, as well as Defendant’s request for Plaintiff’s fingerprints.
To date, Defendant contends that Plaintiff Ramirez has not provided any responses to any of Defendant Parra’s discovery requests, did not appear for her scheduled fingerprinting, nor has she provided dates when she would be able to submit to fingerprinting.
B. Procedural
On April 23, 2024, Defendant, Manuel Parra filed these Motions to Compel Responses and Motion to Compel Plaintiff, Ramirez, to submit to fingerprinting. On May 21, 2024, Plaintiff, Ramirez filed opposition papers consisting of a declaration of Plaintiff’s counsel purporting to explain why Plaintiff did not provide timely response and promising verified responses before the hearing, which could moot the substantive motions. Reply briefs were filed on May 28, 2 days before the hearings on these motions. Counsel dispute whether there was effective communication between them prior to the motion being filed; Defendants asserting multiple, dated and quoted communications to Plaintiff’s counsel, and the opposition declaration stating in a single sentence that “I exchanged several emails with opposing counsel informing him that my client was out of the country.”
II. ANALYSIS
A. 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 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.
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).)
B. Discussion
The declarations of John F. Bazan (“Bazan Decl.”) filed in support of Plaintiff’s opposition to these motions concede that Plaintiff has failed to respond to discovery. Counsel for Plaintiff contends that shortly after this case was filed, Plaintiff’s husband, Jose P. Carrubba died. (Bazan Decl., ¶¶ 4-5.) Plaintiff’s counsel states that his client traveled to her homeland of Peru for an extended period of time after her husband’s death and was unavailable. (Bazan Decl., ¶ 6.) No dates of travel were provided so the Court cannot ascertain whether the discovery was already pending before Plaintiff left the country, what access Plaintiff may have had to counsel in Peru, or many other details. Plaintiff’s counsel also notes that Plaintiff was grieving and was unable to assist with the responses to the discovery propounded on Plaintiff. (Bazan Decl., ¶ 7.) Plaintiff’s counsel also notes that he exchanged several emails with opposing counsel informing him that his counsel is out of the country, and that he would be out of office until May 22, 2024 (Bazan Decl., ¶¶ 8-9), but no details are provided such as the date or dates of the emails, or attaching copies of the same. Plaintiff’s counsel promises he would have his client come into his office to prepare full and complete discovery responses, without objections, and that the responses would be in Defendant’s possession before this hearing. (Bazan Decl., ¶ 10.) It is now a half day before the hearing and no updated information has been provided tot eh Court as to whether these discovery motions are mooted or not, i.e., whether the promised Code-compliant responses have been provided before the hearing.
Objections were asserted to Mr. Bazan’s declaration, largely on hearsay and foundation grounds as to matters that Plaintiff herself or others might be the more appropriate witness. Thus, the Court will need more information at the hearing to determine whether these portions of the motions will be moot.
Sanctions
Irrespective of whether Plaintiff has served Code-compliant responses by the date of the hearing, Defendant argues that it nonetheless was required to bring these motions in order for Plaintiff to provide responses. In connection with Defendant’s motions to compel, Defendant has requested the following amount in sanctions: (1) Form Interrogatories - $1,635; (2) Special Interrogatories - $1,810; (3) Requests for Production of Documents - $1,880; (4) Plaintiff Submitting to Fingerprints - $1,845; and (5) Request to Deem Requests for Admission as Admitted - $1,985. These amounts are accounted for by attorney for Defendant, Stephen L. Backus, submitted his declaration. The Backus declaration indicates his hourly rate is $350. Although the Court finds this amount to be reasonable, the Court finds some of the hours spent prior to preparing the moving papers, and the amount of time Backus anticipated spending on reviewing the opposition papers and filing a reply brief to be unreasonable.
Additionally, this Court notes that if Requests for Admission have been served on Defendant by Plaintiff prior to this hearing, thus mooting the Motion, the Code of Civil Procedure provides a section for mandatory sanctions in the event where substantive discovery is mooted. “It 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(c).)
In Bazan’s declaration in opposition of the Request for Sanctions, he has requested this Court defer in ordering any monetary sanctions at this time. (Bazan Decl., ¶ 11.) Bazan declares that the failure to timely respond was not a situation where he and his client are ignoring her responsibility in litigation, but instead, that she was suffering from the grief of losing her husband. (Bazan Decl., ¶¶ 14, 17.) The Court is inclined to continue the hearing as to the sanctions issue to enable counsel to meet and confer to arrive at a negotiated resolution.