Judge Serena R. Murillo, Case 20STCV27656 2022-09-02 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV27656, Date: 2022-09-02 Tentative Ruling

Case Number: 20STCV27656 Hearing Date: September 2, 2022 Dept: 29

TENTATIVE

Defendant’s motions to compel verified responses to form interrogatories, special interrogatories, request for production, and to have matters in requests for admissions deemed admitted are GRANTED. Defendant Giuseppe Losavio is ordered to provide verified responses to the discovery at issue within 30 days of this order. The Court deems the matters within Defendant’s Request for Admissions (Set One) as true against Defendant Giuseppe Losavio.

Defendant’s requests for sanctions are GRANTED. Defendant Giuseppe Losavio and attorney of record Maryam Danishwar are ordered to pay monetary sanctions in the amount of $560, jointly and severally, within 30 days of this order.

CH Realty is required to pay an additional $60 in filing fees.

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.)

Deem RFAs Admitted

“If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted…. The Court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230. (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect…. (c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.

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 a motion to deem matters specified in a request for admissions as true and 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), 2033.280(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 September 21, 2021, Defendant CH Realty propounded discovery on Defendant Losavio, which included Form Interrogatories, Special Interrogatories, Requests for Admissions and Demand for Production of Documents. (Mulvihill Decl., ¶ 2; Exh. A.) Responses to all the discovery were due on October 25, 2021. On October 25, 2021, Defendant Losavio served his unverified objections to the discovery at issue. (Id., ¶ 3.) To date, Defendant CH Realty has not received verified responses from Defendant Losavio, making this motion necessary. (Id., ¶ 4.)

In opposition, Defendant Losavio argues, without submitting any evidence, that verified responses have been provided as of the date of the opposition, rendering these motions moot.

However, in reply, Defendant CH Realty argues that verifications were not in fact provided, and only unverified further responses were provided. (Reply, Mulvihill Decl., 3-5; Exhs. 1-3.)

As Defendant CH Realty properly served discovery requests and Defendant Losavio failed to serve verified responses, the Court finds Defendant CH Realty is entitled to a court order directing Defendant Losavio to provide verified responses to the discovery requests served on Defendant Losavio. The Court also finds Defendant CH Realty is entitled to an order establishing the truth of the matters in the request for admissions served on Defendant Losavio. Therefore, the motions are granted.

As the motions are granted, the request for sanctions is also granted as Defendant Losavio has not provided substantial justification in failing to send verifications. Further, the Court notes that sanctions are mandatory in connection with a motion to deem admissions admitted, and there is no exception for providing substantial justification. Nevertheless, sanctions will be reduced due to the simplicity of the motions and the concurrent facts. Thus, sanctions are imposed against Defendant Losavio and attorney of record Maryam Danishwar, jointly and severally, in the amount of $560 (which includes filing fees), to be paid within 30 days of this order. However, CH Realty improperly combined four separate motions into three motions, thus has failed to pay the filing fees required for one motion. CH Realty is therefore required to pay an additional $60 in filing fees.

Lastly, Defendant Losavio argues, without citing the statute he relies on, that upon receipt of objection only responses to request for admission, a party has 45 days to file a motion to compel or deem requests admitted. Thus, he argues that this motion is timely as it was not filed within 45 days.

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).)

However, this argument is unavailing as Defendant CH Realty is not moving to compel a further response, but is moving to compel initial responses to the discovery because the responses were unverified. Unverified discovery responses are tantamount to no response at all, and are subject to a motion to compel responses (rather than a motion to compel further responses). (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 635-36.)

Conclusion

Accordingly, Defendant’s motions to compel verified responses to form interrogatories, special interrogatories, request for production, and to have matters in requests for admissions deemed admitted are GRANTED. Defendant Giuseppe Losavio is ordered to provide verified responses to the discovery at issue within 30 days of this order. The Court deems the matters within Defendant’s Request for Admissions (Set One) as true against Defendant Giuseppe Losavio.

CH Realty is required to pay an additional $60 in filing fees.

Moving party is ordered to give notice.