Judge: Steven A. Ellis, Case: 22STCV16988, Date: 2023-08-28 Tentative Ruling

Case Number: 22STCV16988    Hearing Date: August 30, 2023    Dept: 29

TENTATIVE

Plaintiff’s motion to compel is granted.

Plaintiff’s request for sanctions is granted in part.

Background

According to the Complaint, Plaintiff Brian Beverly (“Plaintiff”) was injured in an automobile accident with Defendant Dean Styne (“Defendant”) on July 4, 2021 on the I-10 Freeway near Fairfax Avenue in Los Angeles, California.  On May 23, 2022, Plaintiff filed the Complaint against Defendant and Does 1 through 25, alleging causes of action for motor vehicle negligence, general negligence, and negligent infliction of emotional distress (“NIED”).  In addition to physical injuries, and general damages, Plaintiff alleges (among other things) lost earnings and emotional distress from seeing injuries to his minor child, who was riding in the car with him.

On September 29, 2022, Defendant filed his Answer.

On December 9, 2022, Plaintiff served discovery Special Interrogatories (Set Two) and Requests for Production (Set Two) on Defendant.  (Peabody Decls., Exhs. 1.)  On January 13, 2023, Defendant served responses to the discovery that consisted only of objections.  (Id., Exhs. 3.)  The parties met and conferred; Defendant’s counsel explained that counsel was unable to contact Defendant, and Plaintiff agreed to extend the deadline to March 3, 2023 for Defendant to serve amended and verified responses.  (Id., ¶¶ 8-9 & Exhs. 4-6.)  No verified responses were ever provided.  (Id., ¶¶ 10-11.)

On March 17, 2023, Plaintiff filed a total of six discovery motions.  Two are set for hearing on August 30: (1) Motion to Compel Further Responses to Special Interrogatories (Set Two); and (2) Motion to Compel Further Responses to Requests for Production (Set Two).  Two were set for hearing on August 28, and the other two were set for hearing on August 29.  A motion for terminating sanctions is scheduled for hearing on September 19, 2023.

The two motions on calendar for August 30 were initially set for hearing on April 26, 2023.  Defendant filed oppositions on April 13, 2023.  The Court continued the hearings so that the parties could participate in an Informal Discovery Conference (“IDC”).  The Court held an IDC on August 14, 2023.  The issues were not resolved.

On August 15, 2023, Plaintiff filed replies.

Legal Standard

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that … “[a]n answer to a particular interrogatory is evasive or incomplete … [or] [a]n objection to an interrogatory is without merit or too general.”  (Code Civ. Proc., § 2030.300, subd. (a).)

“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 a motion to compel a further response to interrogatories, 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.”  (Id., subd. (d).)

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete.  (2) A representation of inability to comply is inadequate, incomplete, or evasive.  (3) An objection in the response is without merit or too general.”  (Code Civ. Proc., § 2031.310, subd. (a).)

“[T]he 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 a motion to compel further response to a demand, 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.”  (Id., subd. (h).)

Discussion

Generally, discovery responses must be verified.  But where, as here, the responses contain only objections, and not substantive responses, no verification is required.  (Code Civ. Proc., § 2030.250, subd. (a) & § 2031.250, subd. (a).)

Plaintiff argues that Defendant’s objections are nothing more than general boilerplate and should be overruled.  In the opposition, Defendant makes two threshold procedural arguments.

First, Defendant argues that Plaintiff’s notices of motion are deficient.  The Court has reviewed the notices and finds them sufficient to put Defendant adequately on notice as to the orders being sought and the grounds for those orders.

Second, Defendant argues that Plaintiff’s motions are untimely because they were filed more than 45 days after Defendant’s responses were served on January 13, 2023.  (Peabody Decls., Exhs. 3.)  Because these were objections-only responses, they were not required to be verified, and they were not verified.  (Ibid.)  Under the applicable statutory provisions, the 45-day time period does not begin to run until there is “service of the verified response.”  (Code Civ. Proc. § 2030,300, subd. (c) & § 2031.310, subd. (c).)  That never happened here.  Accordingly, Plaintiff’s motions to compel are timely.

(The Court recognizes that this means that there is effectively no time limit, except for the motion cut-off prior to trial, for motions to compel challenging objections-only responses.  The same rule, of course, applies to motions to compel initial responses to discovery requests.  Moreover, to apply a 45-day limit to bring a motion to compel in these circumstances would run directly contrary to the plain language of the applicable statutory provisions.)

Turning now to the merits of the objections, the Court overrules all objections to Special Interrogatories (Set Two).  The Court also overrules all objections to Requests for Production (Set Two), except that the Court sustains the objections in part to Request No. 50 and the following request, which should have been numbered No. 51 but is instead numbered as a second No. 40; as to those two requests, the Court limits the time period for which Defendant must respond to 2016 (approximately five years before the accident at issue) to the present.

Plaintiff’s requests for sanctions are also granted in part.  Plaintiff has prepared multiple parallel motions, and there are certain economies and savings of time associated with doing so.  On this record, the Court awards sanctions in the amount of $561.65 for each motion, calculated as 2.0 hours of time for each motion, multiplied by counsel’s billing rate of $250 per hour, plus the filing fee of $61.65.  (Peabody Decls., ¶¶ 11-14.)

Sanctions are awarded against Defendant but not counsel of record.  Based upon what is in the record, it appears that the fault here lies with Defendant, and not his counsel; Defendant has failed to communicate with counsel, leaving counsel in the difficult position of attempting to defend a lawsuit and protect the client’s interests without any cooperation from the client.  Under these circumstances, the Court finds that it would be unjust to impose sanctions against Defendant’s counsel.

Conclusion

The Court GRANTS Plaintiff’s motions to compel.  Defendant is ORDERED to serve verified, code-compliant responses to Special Interrogatories (Set Two) and Requests for Production (Set Two), without objection, within 30 days of notice of this order.

The Court GRANTS in part Plaintiff’s request for monetary sanctions.  Defendant is ordered to pay monetary sanctions to Plaintiff in the total amount of $1,123.30 ($561.65 for each of two motions) within 30 days of notice of this order.

Moving party to give notice.