Judge: Serena R. Murillo, Case: 19STCV29063, Date: 2023-02-28 Tentative Ruling

Case Number: 19STCV29063    Hearing Date: February 28, 2023    Dept: 29

TENTATIVE

Defendant’s motions to compel responses to special interrogatories (set two) and request for production of documents (set two) are DENIED, if Plaintiff has provided the verified responses. However, if Plaintiff has not provided verifications, the motions are GRANTED. Sanctions are DENIED.

Legal Standard

Compel Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.  (Code Civ. Proc., § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905–906.)

Compel RPDs 

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response.  (Code Civ. Proc. § 2031.300(b).)  Failure to timely respond waives all objections, including privilege and work product.  (Code Civ. Proc. § 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 responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. 

Sanctions

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 unless 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.”  (Code Civ. Proc. §§ 2030.290(c), 2031.300(c).)  

Under CCP section 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process.  (Code Civ. Proc. § 2023.010.) 

Discussion

On May 27, 2022, Defendant served Special Interrogatories, Set Two, and Requests for Production of Documents, Set Two, on Plaintiff. (Giovacchini Decl., Exhibit A.) After the City served the second set of written discovery, Plaintiff’s counsel sent an e-mail claiming Plaintiff had “already responded to a bunch of written discovery,” Plaintiff was deposed, and the amount of discovery is “quite simply unreasonable.” The City attempted to meet and confer and offered multiple proposed alternative solutions. The City also explained that; a) the number of requests was reasonable when compared to discovery propounded by Plaintiff, b) the second set of written discovery concerned Plaintiff’s alleged loss of future income and earning capacity claims, c) was based on deposition testimony showing additional information existed but had not been produced, and d) the additional written discovery was not unreasonable based on the general damages amount of $20,000,000 identified by Plaintiff in her statement of damages. The City further met and conferred with Plaintiff’s counsel on the phone and offered to reduce the number of interrogatories. Plaintiff did not follow up with any of the City’s offers and did not seek a

protective order from the Court. As of the filing of the motion, no responses have been received. (Id., ¶ 12.)

In opposition, Plaintiff concedes that she has not provided the discovery responses, including objections, to date, but argues it was due to mistake, inadvertence, or excusable neglect due to plaintiff’s counsel’s belief that he had objected to the discovery when he objected to prior supplemental discovery requests. Moreover, there have been staffing changes, which has required new counsel additional time to come up to speed on the issues of this case. When new counsel was brought on, the current motion to compel was not on the office calendar and the Court’s calendar was not showing the hearing date, leading to confusion as to whether Defendant had pulled the motion off calendar. Given counsel for Plaintiff’s oversight in failing to respond/object to the discovery, Plaintiff agrees to respond to the requests even though she believes they are cumulative, burdensome, irrelevant, excessive and harassing. Because of Plaintiff’s mistake and willingness to cooperate with Defendant, albeit late, Plaintiff requests the Court not order sanctions against Plaintiff.

In reply, Defendant argues that Plaintiff has untimely served responses but without verifications.

On January 23, 2023, the matter was continued to allow Plaintiff to respond with verifications as Plaintiff agreed to provide responses to the discovery requests, but Plaintiff had not yet provided verifications to those responses. However, no party has filed any supplemental documents, to inform the Court whether the subject discovery was provided with verifications. As a result, if Plaintiff has responded, the motions are denied. If Plaintiff has not, the Motions are granted.

Sanctions are denied as Plaintiff has acted with substantial justification.

Conclusion

Accordingly, Defendant’s motions to compel responses to special interrogatories (set two) and request for production of documents (set two) are DENIED, if Plaintiff has provided the verified responses. However, if Plaintiff has not provided verifications, the motions are GRANTED. Sanctions are DENIED.

Moving party is ordered to give notice.