Judge: Steven A. Ellis, Case: 20STCV29319, Date: 2023-08-17 Tentative Ruling
Case Number: 20STCV29319 Hearing Date: August 17, 2023 Dept: 29
TENTATIVE
The Court DENIES
Defendant’s motions to compel discovery as moot.
The Court DENIES Defendant’s
request for monetary sanctions.
Background
On
August 4, 2020, Plaintiff Ron A. Rosen Janfaza (“Plaintiff”) filed a complaint
against Defendant Katelynn Tilley (“Defendant”) and Doe Defendants for motor
vehicle and general negligence arising from a motor vehicle incident on August
5, 2018. Defendant filed her answer on
July 29, 2022.
The
same day that she filed her answer, Defendant propounded form interrogatories,
special interrogatories, requests for production, and requests for
admission. (Clark Decls., ¶ 2.) The responses were initially due on or about
August 31, 2022. (Ibid.) After numerous extensions were requested and
granted, Plaintiff’s responses were due on February 16, 2023. (Id., ¶¶ 3-10.)
What
happened next, or did not happen next, is subject to dispute. According to Defendant, Plaintiff did not request
a further extension and did not send any discovery responses on February 16 or at
any time prior to the time of filing of the instant motions. (Id., ¶¶ 11-12.) According to Plaintiff, and more particularly
according to the declaration of a registered process server hired by Plaintiff,
responses to all of the discovery requests were served by mail on February 16,
2023. (Baird Decl., ¶¶ 2-3 & Exhs.
1-4 [responses with signed proofs of service].)
On
April 19, 2023, Defendant, not having received any response (or at least that to
be the case), filed motions to compel initial responses to form interrogatories,
special interrogatories, and requests for production and to deem true the
matters specified in requests for admission.
Defendant also requested sanctions.
The matters were set for hearing in March 2024. On May 10, 2023, the Court denied Defendant’s
ex parte application to advance the hearing dates on these motions. Plaintiff never notified Defendant that he
contended that responses had been served.
On
July 21, 2023, Defendant filed essentially the same four motions: to compel
initial responses to form interrogatories, special interrogatories, and requests
for production and to deem true the matters specified in requests for
admission. Defendant also requested
sanctions. The matters were set for
hearing on August 17, 2023.
Plaintiff
filed his opposition on August 4. For
the first time, Plaintiff now informed Defendant (in the opposition) that he contended
that he had timely served the responses.
Copies of the responses were attached to the opposition.
Defendant
filed her reply on August 10.
Discussion
Requests
for Orders to Compel Responses/Deem Admitted
There is no
dispute that Defendant has now received responses to the four sets of discovery
requests. Accordingly, the requests for
orders to compel Plaintiff to provide initial responses are DENIED as moot. Similarly, the request to deem admitted the
matters specified in the requests for admission is DENIED. (Code Civ. Proc., § 2033.280, subd. (c).)
If Defendant
contends that the initial responses are inadequate, Defendant may (after meeting
and conferring) file motions to compel further responses. Defendants must also schedule an Informal
Discovery Conference (“IDC”). (IDCs are
not required for motions to compel initial responses but they are required for
motions to compel further responses.)
Sanctions
The filing of discovery responses while a motion to compel is
pending does not moot or otherwise divest the court of jurisdiction to award
sanctions under the Civil Discovery Act. “The court may award sanctions under the Discovery Act
in favor of a party who files a motion to compel discovery, even though no
opposition to the motion was filed, or opposition to the motion was withdrawn,
or the requested discovery was provided to the moving party after the motion
was filed.” (Cal. Rules of Court, rule 3.1348(a); see also Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 408-409.)
Defendant
seeks sanctions on the ground that Plaintiff did not timely serve discovery
responses. Plaintiff opposes on the ground
that he did serve timely responses.
Accordingly, the Court must resolve this factual dispute.
It
seems to the Court that one of two things is likely to be true. First, it may be that Plaintiff’s counsel and
the process server are making false statements under oath about service. Or, second, perhaps Plaintiff’s counsel and
the process server are telling the truth, and Defendant’s counsel either did
not receive the mail, or received the mail but misplaced the responses, or for
any other reason did not realize that the responses had been received.
On
this record, the Court finds that it is more likely than not that Plaintiff’s
counsel and the process server are telling the truth and that the responses
were mailed to Defendant on February 16, 2023.
The Court will not lightly conclude that a registered process server and
a member of the bar would lie to the Court, and potentially risk severe adverse
professional consequences, just so that Plaintiff and his counsel could avoid a
few thousand dollars in monetary sanctions.
Having
said that, the conduct here raises significant questions about the
professionalism and overall conduct of Plaintiff’s counsel. When served with the motions in April, why
not send an email or pick up the phone and say to Defendant’s counsel, in
effect, “Why are you filing this motion?
We sent you responses in February.”
Why stay silent? Similarly, why
stay silent when Defendant gives notice of not one but two separate ex parte
applications regarding the scheduling of the hearings on the motions? And then, when served with the new motions in
July, why stay silent until filing the opposition?
At
best, it appears that the failure of Plaintiff’s counsel to engage in normal,
professional communication with Defendant’s counsel caused entirely unnecessary
work not only for the Defendant but also for the Court. Because of the silence of Plaintiff’s counsel,
the Court heard two ex parte applications and prepared for these four motions –
none of which would have been necessary had Plaintiff’s counsel simply communicated
with Defendant’s counsel. Moreover, four
hearing slots were unnecessarily occupied by these motions – hearing slots that
should have been available to the parties in one of the approximately 5,000
other cases on this department’s personal injury docket.
Nonetheless,
what is before the Court today are Defendant’s requests for sanctions under the
Civil Discovery Act. Those requests are all
based on the factual premise that Plaintiff did not serve timely responses to
the discovery requests. As the Court has
found that timely responses were in fact served, the Court DENIES Defendant’s requests
for sanctions.
Conclusion
The Court DENIES
Defendant’s motions to compel discovery as moot.
The Court DENIES Defendant’s
request for monetary sanctions.
Plaintiff's counsel is ordered to give notice.