Judge Serena R. Murillo, Case 21STCV31462 2023-01-24 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV31462, Date: 2023-01-24 Tentative Ruling

Case Number: 21STCV31462 Hearing Date: January 24, 2023 Dept: 29

TENTATIVE

Plaintiff Mahan Monjezi’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 DENIED as moot.

Plaintiff’s request for sanctions
is GRANTED. Defendant Costco Wholesale and attorney of record Jeffrey H.
Baraban are ordered to pay monetary sanctions in the amount of $980, jointly
and severally, within 30 days of this order.

Plaintiff is ordered to pay $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 December 20, 2021, Plaintiff
propounded Form Interrogatories, Set One; Special Interrogatories, Set One;
Request for Production of Documents, Set One; and Request for Admissions, Set
One on Defendant. (Green
Decl.,
¶ 3; Exh. A.) Defendant has not provided responses,
despite two extensions being granted and a meet and confer letter. (Id., ¶ 7.)

In opposition, Defendant states that
responses were provided. (Baraban Decl.)

As such, as responses were provided before
the hearing on these motions, the motions are moot.

However, Plaintiff’s request for sanctions
is granted as sanctions are mandatory in connection with a motion to deem
matters admitted and there is no exception for substantial justification. Not only
that, but Defendant has not provided any justification for failing to timely
respond to the discovery at issue. However, the Court will reduce the amount
requested due to the simplicity of the motions and the nature of the concurrent
facts. Thus, the Court imposes sanctions against Defendant Costco and attorney
of record Jeffrey H. Baraban in the amount of $980 ($400 an hour for 2 hours,
plus $180 in filing fees), jointly and severally, to be paid within 30 days of
this order.

However, the Court also orders Plaintiff’s
counsel to pay $60 in filing fees as only one motion to compel interrogatories
was filed for two sets of discovery (special interrogatories and form
interrogatories).

Conclusion

Accordingly,
Plaintiff’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 DENIED as moot.

Plaintiff is ordered to pay $60 in
filing fees.

Moving party is ordered to give notice.