Judge Theresa M. Traber, Case 21STCV29373 2023-02-15 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV29373, Date: 2023-02-15 Tentative Ruling

Case Number: 21STCV29373 Hearing Date: February 15, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 15, 2023 TRIAL DATE: June 27, 2023

CASE: Sterile Pros, LLC v. Ocean Properties Inc., et al.

CASE NO.: 21STCV29373

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS

MOVING PARTY: Defendant/Cross-Complainant Ocean Properties Inc.

RESPONDING PARTY(S): Plaintiff/Cross-Defendant Sterile Pros, LLC.

CASE HISTORY:

· 08/20/21: Complaint filed.

· 10/25/21: Cross-Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for breach of contract. Plaintiff alleges that Defendants have refused to pay Plaintiff money owed on a contract for remediation of biohazardous material.

Defendant/Cross-Complainant Ocean Properties, Inc. moves for an order compelling Plaintiff/Cross-Defendant Sterile Pros LLC to provide further responses to Requests for Production.

TENTATIVE RULING:

Defendant’s Motion to Compel Further Responses is DENIED AS MOOT.

Defendant’s Request for Sanctions is GRANTED in the amount of $1,860 as to Plaintiff only. Payment is to be made within 10 days of this order.

DISCUSSION:

Defendant/Cross-Complainant Ocean Properties, Inc. moves for an order compelling Plaintiff/Cross-Defendant Sterile Pros LLC to provide further responses to Requests for Production.

Legal Standard

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) These facts must also be set forth in a separate statement filed by the moving party. (Cal. Rules of Court Rule 3.1345(c).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Timeliness

A motion to compel further responses to requests for production must be served “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Code Civ. Proc. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

Plaintiff served initial responses to this discovery request on February 4, 2022. (Declaration of Garabet O. Khajadourian ISO Mot. ¶ 3.) In subsequent meet and confer efforts, Plaintiff agreed to extend the time for this motion to be field to May 31, 2022. (Id. ¶ 6, Exh. E.) This motion was filed on May 27, 2022. This motion is therefore timely pursuant to a written stipulation by the parties.

Meet and Confer

A party making a motion to compel further responses must also include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).)

The Declaration of Garabet O. Khajadourian states that the parties met and conferred electronically between March 16, 2022 and April 28, 2022 in an effort to formally resolve this matter, but were unsuccessful. (Khajadourian Decl. ¶¶ 4-6, Exhs. D-E.) The Court therefore finds that Defendant has complied with the statutory meet and confer obligations.

Plaintiff’s Evidentiary Objections

Plaintiff’s evidentiary objections to the Declaration of Garabet O. Khajadourian are OVERRULED as going to weight, not admissibility.

Good Cause

Defendant moves to compel further responses to Requests for Production Nos. 33 and 34. Requests for Production No. 33 seeks the original and copies of any and all Documents mentioning, referring to, or pertaining to all contracts Plaintiff entered into to perform any biohazardous services from January 1, 2019 to the present. (Defendant’s Exh. A. No. 33.) Request No. 34 seeks the original or copies of any and all documents mentioning, referring to, or pertaining to all biohazardous services performed from January 1, 2019 to the present day. (Id. No. 34.) Defendant contends that these document requests relate to the Unfair Competition cause of action in the Cross-Complaint. The Cross-Complaint alleges that Plaintiffs/Cross-Defendants hold themselves out as government-associated entities when they are not. (Cross-Complaint ¶ 11.) In light of the strong presumption in favor of discovery, the Court finds that Defendant has shown good cause for these requests.

Plaintiff’s Responses

Defendant served Requests for Production, Set One, on Plaintiff on December 20, 2021. (Khajadourian Decl. ¶ 2, Exh. A.) Plaintiff’s responses were therefore due on January 24, 2022. (Id.) Plaintiff served late responses on February 4, 2022. (Id. ¶ 3.) Plaintiff’s initial responses to the requests at issue consisted only of objections. (See generally Separate Statement.) These objections were improper, as objections not timely made in response to a discovery request are waived. (Code Civ. Proc. § 2031.260.) Plaintiff contends that the motion is moot because supplemental responses have since been served without objections. In reply, Defendant states that the responses are nevertheless insufficient. However, neither party has provided the supplemental responses for the Court to evaluate their sufficiency. As Defendant is the moving party, Defendant bears the burden of demonstrating that responses are not code-compliant. Thus, the Court is left with no alternative but to find that the motion to compel further responses is moot. The only remaining issue is the propriety of sanctions.

Sanctions

Defendant requests sanctions against Plaintiff in the amount of $5,053.75.

Code of Civil Procedure section 2023.030 authorizes the Court to impose monetary sanctions on any attorney engaging in the misuse of the discovery process by requiring that attorney to pay the reasonable expenses incurred by anyone as a result of that conduct. Code of Civil Procedure section 2031.310(h) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel further response, 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.

Plaintiff objects to the request for sanctions as improperly noticed. A request for sanctions must, in the notice of motion, identify every person, party, and attorney against whom sanctions are sought and specify the type of sanctions sought. (Code Civ. Proc. § 2023.040.) Here, although Defendant does not use the word “sanction,” Defendant has requested an award of fees and costs to Defendant and against Plaintiff for this motion. The motion also states the authority for the sanctions sought and includes a declaration supporting the amount of monetary sanctions requested. The Court does not find that the motion is deficient in this respect.

Plaintiff also contends that it acted with substantial justification and that sanctions should not be imposed. The Court disagrees. Plaintiff served non-compliant initial responses that were not supplemented for more than six months after the deadline. Further, Plaintiff’s contention that Defendant failed to adequately meet and confer after the motion was filed is not well taken. Defendant is under a statutory obligation to meet and confer before moving to compel further responses. That obligation was satisfied.

As to the requested award, Defendant requests sanctions in the amount of $5,053.75 against Plaintiff, accounting for 7.25 hours of attorney time at a rate of $450 actually billed in connection with this motion, plus 4.5 additional anticipated hours, plus a $60 filing fee. (Khajadourian Decl. ¶¶ 7-8.) The Court finds this request to be excessive. First, it should not have taken Mr. Khajadourian, an attorney of ten years experience, more than seven hours to prepare a relatively straightforward motion to compel further responses to requests for production. (Id. ¶ 7.) Second, Defendant provides no authority for an award of sanctions for anticipated hours, rather than the hours actually billed. The Court therefore will reduce the fee award to $1,860, reflecting 4 hours of attorney time at $450 per hour, plus a $60 filing fee.

CONCLUSION:

Accordingly, Defendant’s Motion to Compel Further Responses is DENIED AS MOOT.

Defendant’s Request for Sanctions is GRANTED in the amount of $1,860 as to Plaintiff only. Payment is to be made within 10 days of this order.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: February 15, 2023 ___________________________________

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.