Judge Theresa M. Traber, Case 19STCV26512 2022-08-15 Tentative Ruling

Judge: Theresa M. Traber, Case: 19STCV26512, Date: 2022-08-15 Tentative Ruling

Case Number: 19STCV26512 Hearing Date: August 15, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 15, 2022 TRIAL DATE: January 9, 2023

CASE: Frontline Medical Associates, Inc. v. Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow P.C. et al.

CASE NO.: 19STCV26512

MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSION, SUPPLEMENTAL REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; REQUEST FOR SANCTIONS

MOVING PARTY: Defendant Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C.

RESPONDING PARTY(S): Plaintiff Frontline Medical Associates, Inc.

CASE HISTORY:

07/30/19: Complaint filed.
12/16/21: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that the lawyer Defendants made misrepresentations to induce Plaintiff to pay them $600,000 to provide services to another of their clients, Paul Turley.

Defendant Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow P.C. moves to compel responses to requests for admission, supplemental requests for production, special interrogatories (set two) and form interrogatories (set two) and requests sanctions in the amount of $10,855.

TENTATIVE RULING:

Defendant’s Motion to Compel Responses to Requests for Admissions (Set Two) is DENIED.

Defendant’s Motions to Compel Responses to Supplemental Requests for Production, Special Interrogatories (Set Two), and Form Interrogatories (Set Two) are GRANTED. Plaintiff is to provide code-compliant responses without objections by August 29, 2022. This ruling is conditioned on Defendant’s payment of an additional $180 in filing fees for three additional motions to compel responses.

Defendant’s request for sanctions is DENIED.

DISCUSSION:

Plaintiff’s Untimely Opposition

Defendant objects to Plaintiff’s opposition to the motion on the grounds that it is untimely.

Code of Civil Procedure section 1005(b) requires that any opposition to a motion be served and filed nine court days before the date the motion is scheduled to be heard, with any subsequent reply to be served and filed five court days before the hearing. Here, the motion was served and filed on July 15, 2022 for an August 15, 2022 hearing date. Plaintiff’s “opposition,” consisting only of a declaration by Plaintiff’s counsel with no attached notice of opposition or memorandum of points and authorities, was filed on August 3, 2022, with no proof of service attached. Defendant contends that the opposition was served on August 3, 2022 as well.

In the Court’s July 26, 2022 ruling on Defendant’s motion for sanctions, the Court stated that its patience with Plaintiff and Plaintiff’s counsel’s adamant refusal to comply with the Code of Civil Procedure, the California Rules of Court, and with this Court’s binding orders was exhausted, and refused to consider Plaintiff’s untimely opposition. Within a week of the Court’s order granting sanctions and refusing to consider Plaintiff’s late opposition, Plaintiff’s counsel has filed yet another late opposition, in violation of the Code of Civil Procedure. Plaintiff’s opposing declaration is untimely, and the Court will not consider it.

Motion to Compel Responses to Defendant’s Requests for Admission (Set Two)

Defendant moves to compel responses from Plaintiff to Defendant’s Requests for Admissions (Set Two). Defendant brings this motion under Code of Civil Procedure section 2033.280. Subdivision (b) of this section authorizes a motion to deem requests admitted for failure to timely respond to propounded requests for admission. (Code Civ. Proc. § 2033.280(b).) Nowhere in this section is there any provision for a motion to compel initial responses to a request for admission, and Defendant cites no other provision that might provide a basis for the requested relief. Further, Defendant’s moving papers make no reference to a motion to deem requests admitted, such that the Court would have any basis to construe this filing in that light.

Accordingly, Defendant’s Motion to Compel Responses to Defendant’s Requests for Admission (Set Two) is DENIED.

Motion to Compel Responses to Defendant’s Supplemental Request for Production

Defendant moves to compel responses from Plaintiff to Defendant’s Supplemental Requests for Production.

Four Motions in One

Multiple motions should not be combined into a single filing.¿(See¿Govt. Code,¿§ 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing];¿see¿also¿Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011)¿[“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”].)

Here, Defendant improperly combined three motions to compel responses to Defendant’s Supplemental Request for Production, Special Interrogatories (Set Two) and Form Interrogatories (Set Two) as well as a “motion to compel responses” to Requests for Admission (Set Two) into one filing. Accordingly, Defendant is ordered to pay an additional $180.00 in filing fees within 10 days of the date of this order as a condition of having the additional motions heard. The Court’s rulings on the additional motions are conditioned upon Defendant’s payment of these filing fees.

Analysis

When a party to whom an inspection demand is directed fails to respond under Code Civ. Proc. § 2031.300(b), a party making the demand may move for an order compelling a response to the inspection demand. A party who fails to provide timely responses waives any objection, including one based on privilege or work product. (Code Civ. Proc. § 2031.300(a).) For a motion to compel initial responses, no meet and confer is required. All that must be shown is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response has been served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.)

Defendant has demonstrated that the supplemental requests for production were properly served on Plaintiff and its attorney of record. (Declaration of Hillary Potashner ISO Mot. ¶ 5, Exh. 4.) Defendant’s counsel did not receive Plaintiff’s responses to the written discovery by the statutory deadline of June 20, 2022. (Id. ¶ 6.) After meeting and conferring with Plaintiff’s counsel, the parties agreed that Plaintiff would respond to substantially all of the written discovery by no later than June 24, 2022. (Id.) Defendant has received no responses from Plaintiff. (Id. ¶ 7.) Based on this showing, Defendant’s Motion to Compel Responses to Supplemental Requests for Production is GRANTED. Plaintiff is to provide code-complaint responses to Defendant’s requests for production, without objections, by August 29, 2022.

Motion to Compel Responses to Defendant’s Special Interrogatories (Set Two)

Defendant moves to compel responses from Plaintiff to Defendant’s Special Interrogatories (Set Two).

When a party to whom interrogatories are directed fails to respond, a party propounding the interrogatories may move for an order compelling a response. (Code Civ. Proc. § 2030.290(b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Code Civ. Proc. § 2030.290(a).) For a motion to compel initial responses, no meet and confer is required. All that must be shown is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response has been served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.)

Defendant has demonstrated that the second set of special interrogatories was properly served on Plaintiff and its attorney of record. (Declaration of Hillary Potashner ISO Mot. ¶ 3, Exh. 2.) Defendant’s counsel did not receive Plaintiff’s responses to the written discovery by the statutory deadline of June 20, 2022. (Id. ¶ 6.) After meeting and conferring with Plaintiff’s counsel, the parties agreed that Plaintiff would respond to substantially all of the written discovery by no later than June 24, 2022. (Id.) Defendant has received no responses from Plaintiff. (Id. ¶ 7.) Based on this showing, Defendant’s Motion to Compel Responses to Special Interrogatories (Set Two) is GRANTED. Plaintiff is to provide code-complaint responses to Defendant’s special interrogatories, without objections, by August 29, 2022.

Motion to Compel Responses to Defendant’s Form Interrogatories (Set Two)

Defendant moves to compel responses from Plaintiff to Defendant’s Form Interrogatories (Set Two).

Defendant has demonstrated that the second set of form interrogatories was properly served on Plaintiff and its attorney of record. (Declaration of Hillary Potashner ISO Mot. ¶ 4, Exh. 3.) Defendant’s counsel did not receive Plaintiff’s responses to the written discovery by the statutory deadline of June 20, 2022. (Id. ¶ 6.) After meeting and conferring with Plaintiff’s counsel, the parties agreed that Plaintiff would respond to substantially all of the written discovery by no later than June 24, 2022. (Id.) Defendant has received no responses from Plaintiff. (Id. ¶ 7.) Based on this showing, Defendant’s Motion to Compel Responses to Form Interrogatories (Set Two) is GRANTED. Plaintiff is to provide code-complaint responses to Defendant’s form interrogatories, without objections, by August 29, 2022.

Request for Sanctions

Defendant requests sanctions against Defendant and its counsel amounting to $10,855 in connection with the four improperly combined motions.

Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010.) Under California Code of Civil Procedure section 2023.030, subd. (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.”

California Rules of Court, rule 3.1348, subdivision (a) states: “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.”

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. (Code Civ. Proc. §§ 2030.290, subd. (c), 2030.300, subd. (d), 2031.300, subd. (c), and 2031.310, subd. (h).) However, sanctions are not mandatory if 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.” (Ibid.) A fee request that appears unreasonably inflated is a special circumstance permitting the court to reduce the award or deny one altogether. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990-91.)

Defendant’s request for $10,855 is based on 2.5 expected hours of attorney time at a rate of $975 per hour, 5.5 hours of attorney time at a rate of $595 per hour, and 9 hours of attorney time at a rate of $575 per hour. (Potashner Decl. ¶¶ 9-11.) Seventeen hours of attorney time for four motions to compel initial responses based on a failure to respond to discovery is an unreasonably inflated request on its face. Furthermore, Defendant improperly filed four motions in one, including an invalid motion to compel responses to requests for admissions, which is not authorized by statute. The Court therefore finds that the circumstances in this matter make the imposition of sanctions against Plaintiff entirely unjust, notwithstanding Plaintiff’s failure to timely respond to discovery.

Defendant’s request for sanctions is DENIED.

CONCLUSION:

Accordingly, Defendant’s Motion to Compel Responses to Requests for Admissions (Set Two) is DENIED.

Defendant’s request for sanctions is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 15, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.