Judge: Steven A. Ellis, Case: 22STCV15712, Date: 2024-01-10 Tentative Ruling

Case Number: 22STCV15712    Hearing Date: February 16, 2024    Dept: 29

Motion to Compel Plaintiffs’ Responses to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production (Set One)  and Motion to Deem the Truth of Matters Asserted of Request for Admissions (Set One) filed by Defendants Advanced Publishing Technology, Inc., and David Kraai.

Tentative

The Court will hear from counsel.

Background

This case arises out of an alleged vehicle accident involving a motorized bicycle on May 19, 2020, near the intersection of Virginia Avenue and Angeleno Avenue in Burbank.  On May 11, 2022, Plaintiff Francesca Esker (“Plaintiff”) filed a complaint asserting a cause of action for general negligence against Defendants Brian Ohara McGowan, David Kreamer, Advanced Publishing Technology, and Does 1 through 50.  On July 28, 2022, Plaintiff amended the complaint to name David Kraai as Doe 1.

On October 24, 2022, Defendants Advanced Publishing Technology, Inc., and David Kraai (“Defendants”) filed an answer to the complaint.

Plaintiff was initially represented by Neil Steiner.  On December 9, 2022, the Court granted attorney Steiner’s motion to be relieved as counsel for Plaintiff.  On March 9, 2023, Plaintiff filed a substitution of counsel designating Daniel Setareh as her new attorney.  On June 21, 2023, Plaintiff filed a substitution of counsel stating that Plaintiff was now representing herself.

On December 27, 2022, Defendants served Plaintiff with discovery, including Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production (Set One).  (Garber Decls., ¶¶ 3-4 & Exhs. A-B.)  Defendants electronically served both Plaintiff herself and her former counsel Mr. Steiner.  (Id., Exhs. A-B.)  Defendants followed up with correspondence to Plaintiff, but Plaintiff has never responded to the discovery.  (Id., ¶¶ 4-8 & Exhs. D-E.)

On October 6, 2023, Defendants served Plaintiff with Requests for Admission (Set One).  (Garber Decl., ¶ 3 & Exh. A.)  Defendants electronically served Plaintiff.  (Id., Exh. A.)  Defendants followed up with correspondence to Plaintiff, but Plaintiff has never responded to the discovery.  (Id., ¶¶ 4-6 & Exhs. B-C.)

On September 25, 2023, Defendants filed motions to compel Plaintiff to provide initial responses to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One).  Defendants served Plaintiff by regular mail and by email.

On January 9, 2024, Defendants filed a motion for an order deeming admitted as true the matters specified in Requests for Admission (Set One).  Defendants served Plaintiff by email.

Plaintiff did not file a timely opposition to any of these motions. 

On February 13, 2024, just three days before the hearing, Plaintiff filed a declaration stating that since she lost her second attorney she has “struggled to represent myself” but she did “recently” serve verified responses, without objection, to the interrogatories, requests for production, and requests for admission.  (Esker Decl., ¶¶ 3, 7.)

Also on February 13, Plaintiff filed a notice of limited scope representation (limited to the hearing on February 16). 

Legal Standard

A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd.(a).) If a party to whom interrogatories are directed does not provide a timely response, the propounding party may move for an order compelling response to the interrogatories. (Id., § 2030.290, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).)  In addition, a party who fails to provide a timely response generally waives all objections.  (Code Civ. Proc., § 2030.290, subd. (a).)

When a party moves to compel initial responses to interrogatories, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes [the motion], 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.”  (Code Civ. Proc., § 2030.290, subd. (c).)

A party must respond to requests for production of documents within 30 days after service. (Code Civ. Proc., § 2031.260, subd.(a).) If a party to whom requests for production of documents are directed does not provide timely responses, the requesting party may move for an order compelling response to the demand. (Id., § 2031.300, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).)  In addition, a party who fails to provide a timely response generally waives all objections.  (Code Civ. Proc., § 2031.300, subd. (a).)

When a party moves to compel initial responses to requests for production, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes [the motion], 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.”  (Code Civ. Proc., § 2031.300, subd. (c).)

A party must respond to requests for admission within 30 days after service. (Code Civ. Proc., § 2033.250, subd.(a).) If a party to whom requests for admission are directed does not provide a timely response, the propounding party may move for an order that the truth of the matters specified in the requests be deemed admitted. (Id., § 2033.280, subd. (b).) There is no time limit for such a motion, and no meet and confer efforts are required. (See id., § 2033.280; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).)  In addition, a party who fails to provide a timely response generally waives all objections.  (Code Civ. Proc., § 2033.280, subd. (a).)

The court “shall” make the order that the truth of the matters specified in the request be deemed admitted unless the court “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.”  (Id., § 2033.280, subd. (c); see St. Mary v. Super. Ct. (2014) 223 Cal.App.4th 762, 778-780.)

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion [to deem admitted the matters contained in the requests for admission].”  (Code Civ. Proc., § 2033.280, subd. (c).) 

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.”  Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Code Civ. Proc., § 2023.020, subd. (a).)

“[P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].”  (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 407.)  Even if the untimely response “does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses … the trial court retains the authority to hear the motion.”  (Id. at pp. 408-409.)  This rule gives “an important incentive for parties to respond to discovery in a timely fashion.”  (Id. at p. 408.)  If “the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions,” the trial court may “deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.”  (Id. at p. 409.) “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).)  

Discussion

On December 27, 2022, Defendants served Plaintiff, by email. Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production (Set One).  (Garber Decls., ¶¶ 3-4 & Exhs. A-B.)  On October 6, 2023, Defendants served Plaintiff, by email, with Requests for Admission (Set One).  (Garber Decl., ¶ 3 & Exh. A.) 

As of the date of filing of these motions, Plaintiff had not responded to the discovery.  Plaintiff now contends that she has responded.  (Esker Decl., ¶ 7.)

The Court has questions for counsel, including, but not limited to, the following.

First, does Defendants’ counsel agree that Plaintiff has now served initial responses to the form interrogatories, special interrogatories, requests for production, and requests for admission?

Second, did Plaintiff ever consent to email service?

Third, moving forward, does Plaintiff consent to email service?  Also, what is the correct mailing address for Plaintiff for documents in this case?

Conclusion