Judge Ronald F. Frank, Case Number: 24TRCV01851, Date: 2025-01-23 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV01851, Date: 2025-01-23 Tentative Ruling

Case Number: 24TRCV01851 Hearing Date: January 23, 2025 Dept: 8

Tentative Ruling

HEARING DATE: January 23, 2024¿

CASE NUMBER: 24TRCV01851

CASE NAME: John Nazarian v. FCA US LLC, et al.

MOVING PARTY: (1) Plaintiff, John Nazarian

RESPONDING PARTY: (1) Defendants, FCA US LLC

TRIAL DATE: May 27, 2025

MOTION:

(1) Motion to Compel Defendant, LAX Auto Center LLC to Respond, without Objections, to Requests for Production of Documents, Set One.

(2) Request for Sanctions

(3) Motion to Compel Defendant, FCA US LLC to Respond, without Objections, to Requests for Production of Documents, Set One.

(4) Request for Sanctions

Tentative Rulings: (1) Motion to Compel Defendant, LAX Auto Center LLC to Respond, without Objections, to Requests for Production of Documents, Set One is GRANTED.

(2) Request for Sanctions is GRANTED in the amount of $1,250.

(3) Motion to Compel Defendant, FCA US LLC to Respond, without Objections, to Requests for Production of Documents, Set One is GRANTED.

(4) Request for Sanctions is GRANTED in the amount of an additional $1,250.

I. BACKGROUND

A. Factual

On May 31, 2024, Plaintiff, John Nazarian (“Plaintiff”) filed a complaint against Defendants, LAX Auto Center, LLC, FCA US LLC, Great American Insurance Company, and DOES 1 through 100. The complaint alleges causes of action for: (1) Intentional Misrepresentation; (2) Negligent Misrepresentation; (3) Breach of Written Contract; (4) Violation of Business and Professions Code § 17200; (5) Bond Claim; (6) Violation of the Consumer Legal Remedies Act.

On July 22, 2024, Plaintiff served his first set of Requests for Production of Documents on both Defendant, LAX Auto Center, LLC and FCA US, LLC. Plaintiff states responses were due August 21, 2024, but both Defendants failed to respond. Plaintiff maintains his counsel reached out to Defendants’ counsel requesting their responses well after they were due. Plaintiff

asserts that when Defendants’ counsel responded, they stated that the responses had already been served, but failed – after several requests – to provide either a copy of the responses or a proof of service.

Plaintiff’s moving papers indicate that on November 6, 2024, months after responses were due, Defendants served responses, some containing objections, but without verifications. Thereafter, Plaintiff states that his counsel sent another meet and confer letter setting a deadline of November 15, 2024 for Defendants to respond further and without objection, but again, LAX did not respond. As such, Plaintiff states it has brought this Motion to Compel Defendants to provide verified responses, without objection.

B. Procedural

On November 20, 2024, Plaintiff filed his two separate Motions for order compelling Defendants’ verified responses to Request for Production of Documents, Set One without objection. On January 13, 2025, both Defendants filed opposition briefs. To date, reply briefs have not been filed.

II. ANALYSIS

A. Legal Standard

“Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand . . . .” (Code Civ. Proc., § 2031.260.) The written response is required to be verified i.e., signed under oath by the party, unless the written response contains only objections. (Id. section 20131.250(a).

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(b).) Similarly with respect to interrogatories, “Under section 2030.290, . . .once a party has failed to serve timely interrogatory responses, the trial court has the authority to hear a propounding party's motion to compel responses under section 2030.290, subdivision (b), regardless of whether a party serves an untimely response.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408.)

Failure to timely respond waives all objections, including privilege and work product. (Id. section 2031.300(a).) 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 an initial response where nothing was timely served. Likewise, for failure to respond in timely fashion, 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.

B. Discussion

Defendant, LAX Auto Center, LLC’s opposition states that its responses were served on November 6, 2024, and that “production materials” were sent December 12, 2024. Even though

the Court acknowledges that LAX Auto Center and FCA ultimately responded prior to Plaintiff’s bringing of this Motion to Compel Initial Responses, the belated responses were not verified. Because the belated responses contained no verification, those responses do not moot the motion to compel initial responses because there still has been no substantially Code-compliant written response even now, some five months late.

The belated service of unverified hybrid responses with objections 3 months late is nearly as troubling as the cavalier opposition that argues that the Court should simply validate the untimely objections “under the circumstances.” Without Defendants seeking and obtaining relief from the statutory waiver of the right to object, the Court finds that objections are waived. The written responses attached as exhibits to the Opposition brief and Spolsky declarations do not contain any verifications. Accordingly, the written responses were not substantially Code-compliant even if they had been timely. Section 2031.300(a) states that a party who fails to serve a timely written response to a demand for production of documents waives the right to object to the demand. An unsworn statement or unverified discovery responses is “tantamount to no response at all.” (Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914.) “Objections must be interposed in a timely fashion, and, absent good cause for relief from default, a court will not consider belated objections or additional objections.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 785.) “The burden of establishing excusable neglect is upon the party seeking relief who must prove it by a preponderance of the evidence.” (Iott v. Franklin (1988) 206 Cal.App.3d 521, 528.) The Spolsky declaration does not carry that burden, with or without a motion, and thus the Court finds that the unverified responses attached to his declaration are tantamount to no responses at all.

Section 2031.300(a) (1) and (2) provide a mechanism to relieve a party from waiver on written motion. A written motion is a distinct mechanism from making an argument in opposition to a motion to compel. The motion for relief from waiver may be granted in the Court’s discretion upon determination that two conditions are satisfied: (1) a subsequent written response that complies with Code in all material respects, including the verification requirement, and (2) that the failure to have served a timely response was the result of mistake, surprise, excusable neglect, or inadvertence. Defendants have not yet availed themselves of that mechanism.

In the circumstance (not here) of a timely-served hybrid response containing objections and substantive responses, “there is no need to verify that portion of the response containing the objections. Thus, if the response is served within the statutory time period, that portion of the response must be considered timely notwithstanding the lack of verification.” (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657.) But that did not happen here. Defendants here served no response at all within the statutory time period. Thus, absent further order of the Court on written motion, the right to object is waived per the literal language of the statute. The Court recommends that the parties meet and confer regarding a potential Motion for Relief from Waiver of Objections on behalf of Defendant, LAX Auto Center, LLC and Defendant FCA.

Accordingly, the motion to compel responses from both defendants, without objections, are both GRANTED. The verified written responses and production of documents shall be served on or before February 14, 2025.

C. Sanctions

Plaintiff also seeks sanctions against both Defendant, LAX Auto Center, LLC and Defendant FCA in the amounts of $3,650 each.

This amount is based on Plaintiff’s counsel stating that he spent approximately 2 hours on the meet and confer attempts with Defense Counsel, spent 2.5 hours drafting this motion, anticipates spending 0.5 hours or more on a reply brief, as well as 0.5 hours appearing for a hearing on the motion with an hourly rate of $650, the $60 filing fee, and approximately $10-15 for electronic filing. The Court finds that the total time anticipated filing this motion, as well as an hourly rate are excessive for a generic discovery motion. No reply briefs were filed. As such, the Court does grant monetary sanctions, payable by defendants and/or their counsel, to Plaintiff’s counsel in the amount of $1,250 per motion for a total of $2,500, on or before February 21, 2025.

Plaintiff is ordered to give notice.