Judge: Theodore R. Howard, Case: 21-1232544, Date: 2022-09-29 Tentative Ruling
Before the Court at present are three motions, all filed on 4/27/22 by Defendant County of Orange (here “County”), to compel verified responses, without objection, from Plaintiff Jane Doe 3 (“Plaintiff”) on: (1) County’s Form Interrogatories – Employment, Set One (here, “Motion 1”), (2) County’s Form Interrogatories – General, Set One (here, “Motion 2”), and (3) County’s Requests for Production, Set One (here “Motion 3”), and for monetary sanctions on all three motions.
Motion 1 is GRANTED IN PART. The Motion demonstrates that County’s Form Interrogatories – Employment, Set One (here “Empl FROGs”) was served on Plaintiff’s counsel on 12/14/21. (Yu Decl. ¶ 2, Ex. A.) Plaintiff concedes that no responses were provided, and instead asserts that the Empl FROGs were never served. (Opp p. 4.) But the general assertion that counsel in reviewing the file “does not see” that such discovery was served is insufficient to support that assertion. Nor does that claim comport with subsequent emails exchanged about this discovery, which specifically referred to the outstanding Empl FROGs in granting various extensions. (Id. at Exs. B – E.) The Opposition also fails to address why, if Plaintiff’s counsel had not received this discovery as claimed, he failed to so state when repeatedly contacted by County’s counsel to confer about the claimed failure to timely respond thereto. (Id. at Exs. F – H at pp. 35, 46, 48 and 51.) Nor does it explain counsel’s apparent silence on the subject even after receiving this Motion, until the filing of the Opposition more than four months later.
Under the circumstances here, as the Opposition fails to present any evidence sufficient to defeat the Motion, Motion 1 is GRANTED. Plaintiff is to provide verified responses, without objection, within 15 days after service of notice of this ruling.
Motion 2 is GRANTED IN PART. For this Motion, Plaintiff concedes that service occurred, but claims that verified responses were timely provided, and then twice supplemented. (See Murphy Decl. at ¶¶ 4, 6.) However, Plaintiff has failed to present evidence to show that this is so, while County reasserts on Reply that no response to this discovery was ever received. In addition to the absence of what would presumably have been readily available supporting evidence for the Opposition, Plaintiff has also failed to reconcile that assertion with the evidence presented with the Motion as to the communications between counsel thereafter, which do not show any such claim to have been made prior to the filing of this Motion, or at any time prior to the filing of the Opposition. (Yu Decl. ¶¶ 7-15, and Exs. F-H at pp. 35, 46, 48, 51.) Therefore, absent an attorney declaration filed by the time of the hearing which attaches all of the alleged responses Plaintiff claims to have served, along with the referenced verifications and proofs of service demonstrating that responses were timely served as claimed, Motion 2 is GRANTED. Plaintiff is to provide verified responses, without objection, within 15 days after service of notice of this ruling. And in either event, in light of counsel’s failure to act to avoid the need for this Motion, the request for sanctions will be GRANTED in the sum discussed below.
Motion 3 is GRANTED IN PART. For this Motion, Plaintiff again concedes that service occurred, and again claims in the Opposition that verified responses were timely provided. (See ROA 149 at p. 3 [“Plaintiff requested a 30-day extension which was granted and served verified responses to Form Interrogatories, Set One, Request for Admissions, Special Interrogatories, and Request for Production of Documents on February 28, 2022.”).) But Plaintiff has failed to provide any evidence whatsoever to support that assertion, but for the vague assertion in the Murphy Decl. at ¶ 9 that “Defendant's Motions to Compel should be moot given the fact that Plaintiff provided responses to all served Discovery.” Plaintiff has thus failed to present evidence to show that this is so, while County reasserts on Reply that no response to this discovery was ever received. Plaintiff has also again failed to reconcile her assertions with the evidence presented as to the communications between counsel thereafter, which do not show any such claim to have been made prior to the filing of this Motion or at any time prior to the filing of the Opposition. (Yu Decl. ¶¶ 7-15, and Exs. F-H at pp. 35, 46, 48, 51.) Motion 3 is therefore GRANTED. Plaintiff is to provide verified responses, without objection, within 15 days after service of notice of this ruling, and produce all responsive documents concurrently therewith. However, the Court has concluded that reduced sanctions should be imposed on the Motion, as discussed below.
For the discovery at issue on Motions 1-3 County has shown that sanctions on each of the motions are warranted. However, the Court has concluded that in light of the duplication in the three motions, reduced sanctions should be imposed in the amount of $2,000 per motion. As the Motions request sanctions only “against Plaintiff,” they are imposed on Plaintiff alone, and not also on her counsel of record. (See C.C.P. § 2023.040 [a request for sanctions shall, in the notice of motion, identify every party, person or attorney against whom it is sought and specify the type of sanction sought].)
Counsel for moving party is to give notice of these rulings.