Judge: Serena R. Murillo, Case: 21STCV42303, Date: 2023-03-30 Tentative Ruling

Case Number: 21STCV42303    Hearing Date: March 30, 2023    Dept: 29

TENTATIVE

Defendant’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’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.) 

Request for Judicial Notice

Defendant requests judicial notice of the first amended complaint and its answer. The request is granted.

Discussion

On August 16, 2022, Defendant served Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Production of Documents, Set One, on Plaintiff. (Rios Decl., Exhs. 1-3.) Plaintiff’s responses were due on or before September 20, 2022. (Id., Plaintiff’s counsel requested and was granted multiple extensions. (Id., ¶¶ Exhs. 4-5.) To date, Plaintiff has not responded to the discovery. (Id., ¶ 7; Exh. 7.)

In opposition, Plaintiff states that Plaintiff has now responded with responses to the requests for discovery. Plaintiff acknowledges the responses were late despite the extension. However, Plaintiff Rivera-Rivera lives in an assisted living facility and was only able to communicate with his counsel through his sister’s phone when she was visiting with him. As such, counsel could only communicate with Plaintiff at the discretion of his sister when she would go visit him. As such, extensions were requested to complete the discovery and the fragile condition of Plaintiff, and his assisting living situation was disclosed to defense counsel. Plaintiff requests sanctions against Defendant under Code of Civil Procedure sections 2030.300(d) and 2031.310(h), in connection with motions to compel further, and under Code of Civil Procedure section 2023.030(a), for the alleged misuse of discovery.

In reply, Defendant argues that Plaintiff has provided untimely responses with objections, which responses are also evasive and insufficient. As the responses are untimely, Defendant argues that objections were waived, and thus a further response is required.

As Plaintiff has provided 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 his counsel’s failure to respond on time. As such, Defendant’s request for sanctions is denied.

Plaintiff’s counsel’s request for sanctions is also denied for several reasons. 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, as this is not a motion to compel further, Code of Civil Procedure sections 2030.300(d) and 2031.310(h), are of no help here. Lastly, Plaintiff’s request for sanctions pursuant to CCP section 2023.030 for the alleged misuse of discovery cannot be granted. In a recent case, City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5^th 466, 504, the Court of appeal concluded that: "sections 2023.010 and 2023.030 do not independently authorize the trial court to impose monetary sanctions for misuse of discovery.” (Id.)

Conclusion

Accordingly, Defendant’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’s request for sanctions is DENIED.

Moving party is ordered to give notice.