Judge Serena R. Murillo, Case 21STCV28444 2023-03-10 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV28444, Date: 2023-03-10 Tentative Ruling

Case Number: 21STCV28444 Hearing Date: March 10, 2023 Dept: 29

TENTATIVE

Defendant Bank of America Corporation’s motions to compel responses to form interrogatories, special interrogatories, and request for production of documents are DENIED as MOOT. Defendant’s request for sanctions is DENIED. Plaintiff Rosa Maria Beltran’s request for sanctions is 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 November 10, 2022, Defendant served Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Production of Documents, Set One, on Plaintiff. (Schaus Decl., Exhs. A-B.) Plaintiff’s responses were due on or before December 12, 2022. (Id., ¶ 2.) Plaintiff’s counsel requested and was granted multiple extensions, making the new deadline January 27, 2023. (Id., ¶ ¶ 4-6.) On January 31, 2023, Plaintiff’s counsel sent an email stating, for the first time, that he had suffered a shoulder injury in December of 2022 for which he had been undergoing physical therapy, and which may later require surgery. (Id., ¶ 8.) To date, Plaintiff has not responded to the discovery. (Id., ¶ 7.)

In opposition, Plaintiff argues that the motion is moot as Plaintiff has now responded with responses to the requests for discovery. Plaintiff’s counsel argues he sustained an injury in December of 2022, there was a flu outbreak in his office, and a few employees were sick with covid. Plaintiff requests sanctions against Defendant because Plaintiff requested that counsel for Defendant withdraw the motions to compel after it provided responses, however, Defendant refused to take the motions off calendar, causing this opposition to be filed. Plaintiff argues it had to oppose this meritless motion. Plaintiff argues Defendant failed to meet and confer in good faith.

In reply, Defendant argues that Plaintiff’s motion is untimely. Second, Defendant argues that Plaintiff has provided responses with objections and has not moved to waive the objections, and thus, an order requiring a response without objections is necessary and the motions are not moot. Further, Defendant contends that after the responses were overdue, Plaintiff continued to ignore the discovery rules or make any effort to rectify the situation. Plaintiff waited weeks to provide the responses, interposed extensive waived objections without filing a motion for relief from waiver, and demanded that Defendant take the motions off- calendar. All the while, continuing to claim that an injury was the reason for the delay when the evidence shows that this was not the reason the discovery responses were not timely served. The injury was never given as a reason or a requested extension, and Plaintiff’s counsel completed at least one trial in January, while the discovery requests were pending. His office is staffed by two other attorneys and a paralegal. Further, although he has yet to undergo surgery, Plaintiff’s counsel was still able to spend two and half hours personally preparing an Opposition to this motion.

“A trial court has broad discretion to overlook late-served papers and to resolve the matter on the merits.” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168 [“(E)ven if the service had been untimely, the trial court was vested with discretion to overlook the defect”]; see also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.”].) The court exercises its discretion and considers the merits of the opposition. Further, Defendant has not argued it was prejudiced by the opposition being late and has filed a reply on the merits, thus waiving the issue.

As Plaintiff has provided verified responses to the request for discovery, the motions to compel those responses are moot. If Defendant seeks further responses without objections, it must move to compel further responses. The propounding party may bring motions to compel further responses to interrogatories or requests for production if it believes (1) the responses received are evasive, or (2) incomplete, or (3) if the objections raised are meritless or too general. (Code Civ. Proc. §§ 2030.300(a), 2031.310(a).)

As to sanctions, Plaintiff has provided substantial justification for her counsel’s failure to respond on time. While Plaintiff’s counsel stated for the first time in January of 2023 that he suffered a shoulder injury, it is undisputed that the parties had agreed to extensions prior to that. As such, Defendant’s request for sanctions is denied.

Plaintiff’s counsel’s request for sanctions is also denied. First, Plaintiff did not request sanctions in the notice. CCP section 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (CCP section 2023.040.) Second, there is no meet and confer requirement prior to filing this motion to compel initial responses, and Defendant was entitled to file this motion seeking responses as Plaintiff had failed to provide any as of the time Defendant filed the motions. A motion to compel initial discovery responses need not show good cause, meeting and conferring, or timely filing, and need not be accompanied by a separate statement. (See Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) The fact that the motions became moot did not cause the request for sanctions to become moot. Thus, Plaintiff’s argument that it had to oppose a meritless motion is unavailing, as Defendant’s motion has merit.

Conclusion

Accordingly, Defendant Bank of America Corporation’s motions to compel responses to form interrogatories, special interrogatories, and request for production of documents are DENIED as MOOT. Defendant’s request for sanctions is DENIED. Plaintiff Rosa Maria Beltran’s request for sanctions is DENIED.

Moving party is ordered to give notice.