Judge Salvatore Sirna, Case 22PSCV00141 2023-04-05 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV00141, Date: 2023-04-05 Tentative Ruling

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Case Number: 22PSCV00141 Hearing Date: April 5, 2023 Dept: G

Plaintiff Asher Jewelry Company, Inc.’s Motion for Order Compelling Defendant Elba Jewelry Services, LLC to Provide Responses to Interrogatories or in the Alternative, for an Order Striking the Answer to Complaint for Failure to Cooperate and Comply with Discovery Obligations

Respondent: NO OPPOSITION

Plaintiff Asher Jewelry Company, Inc.’s Motion for Order Compelling Defendant Elba Jewelry Services, LLC to Provide Responses to Request for Production of Documents or in the Alternative, for an Order Striking the Answer to Complaint for Failure to Cooperate and Comply with Discovery Obligations

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Asher Jewelry Company, Inc.’s Motion for Order Compelling Defendant Elba Jewelry Services, LLC to Provide Responses to Interrogatories is GRANTED. Defendant is ordered to serve code-complaint responses on Plaintiff without objection within twenty (20) days of the issuance of this order.

Defendant’s Request for an Order Striking Defendant’s Answer is DENIED.

Plaintiff Asher Jewelry Company, Inc.’s Motion for Order Compelling Defendant Elba Jewelry Services, LLC to Provide Responses to Request for Production of Documents is GRANTED. Defendant is ordered to serve code-complaint responses on Plaintiff without objection within twenty (20) days of the issuance of this order.

Defendant’s Request for an Order Striking Defendant’s Answer is DENIED.

BACKGROUND

This is a collections action arising from a breach of a jewelry consignment contract. On October 10, 2018, Plaintiff Asher Jewelry Company, Inc. entered into a written agreement with Defendant Elba Jewelry Services, LLC in which Plaintiff agreed to consign jewelry items to Defendant for sale. Plaintiff alleges Defendant breached the agreement on November 24, 2020 by failing to pay money due and now owes $456,765.74 plus interest.

On February 10, 2022, Plaintiff filed a complaint against Defendant and Does 1-100, alleging breach of contract.

On February 23, 2023, Plaintiff filed the present motions. A hearing on the motions is set for April 5. A final status conference is also set for June 5 with a non-jury trial set for June 16.

ANALYSIS

Plaintiff moves to compel Defendant to provide responses to Plaintiff’s form interrogatories and requests for production. Plaintiff also seeks terminating sanctions in the form of striking Defendant’s answer.

Legal Standard

Code of Civil Procedure section 2031.300, subdivision (b) allows the propounding party to file a motion to compel responses to requests for production if a response has not been received. Similarly, pursuant to Code of Civil Procedure section 2030.290, subdivision (b), the propounding party may file a motion to compel responses to interrogatories if a response has not been received. In both cases, a response must be provided within 30 days of service. (Code Civ. Proc., § 2030.260, subd. (a); § 2031.260, subd. (a).) If responses are untimely, the responding party waives objections. (Code Civ. Proc., §§ 2030.290, subd. (a); 2031.300, subd. (a).) The court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes such orders to compel absent substantial justification or other circumstances that make imposition of sanctions unjust. (Code Civ. Proc., §§ 2030.290, subd. (c); 2031.300, subd. (c).) While the imposition of sanctions is mandatory, the court “has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791 (Cornerstone).)

Discussion

On May 16, 2022, Plaintiff’s counsel propounded discovery requests on Defendant, including the Form Interrogatories, Set One, and Request for Production of Documents, Set One. (Gaba Decl., ¶ 2.) After Plaintiff’s counsel received no responses, Plaintiff’s counsel sent a meet and confer letter to Defendant on August 11 and did not receive any response. (Gaba Decl., ¶ 2-3.) Accordingly, the court GRANTS Plaintiff’s motions to compel.

While Plaintiff does not request monetary sanctions, Plaintiff does request terminating sanctions in the form of striking Defendant’s answer. However, “a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective [Citations].” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) In this case, while Defendant’s discovery responses were due June 2022, Plaintiff waited over seven months to file motions to compel. Because these are Plaintiff’s first motions to compel discovery and no other sanction have yet to be imposed, the court finds terminating sanctions unwarranted. Thus, Plaintiff’s requests for the striking of Defendant’s answer are DENIED.

CONCLUSION

Defendant’s Request in both motions to compel for an Order Striking Defendant’s Answer is DENIED.