Judge: Theresa M. Traber, Case: 22STCV33724, Date: 2023-09-20 Tentative Ruling

Case Number: 22STCV33724    Hearing Date: October 18, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 18, 2023                   TRIAL DATE: April 9, 2024

CASE:                         Nabil Mihoubi v. General Motors, LLC

CASE NO.:                 22STCV33724           

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

MOVING PARTY:               Plaintiff Nabil Mihoubi

RESPONDING PARTY(S): Defendant General Motors, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a lemon law action filed on October 17, 2022. Plaintiff purchased a 2022 Cadillac Escalade which is alleged to be defective.

Plaintiff moves for an order compelling responses to requests for production.

TENTATIVE RULING:

Plaintiff’s Motion to Compel Responses to Requests for Production is GRANTED.

Defendant is ordered to produce verified, code-compliant responses without objections within 30 days of this order.

Plaintiff’s request for sanctions is GRANTED in the amount of $411.65 against Defendant and its counsel, jointly and severally. Payment is to be made within 10 days of this order.

DISCUSSION:

Plaintiff moves for an order compelling responses to requests for production propounded to Defendant.

Legal Standard

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 requests for production 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’s Untimely Opposition

            Defendant served and filed its opposition to this motion on October 6, 2023. Code of Civil Procedure section 1005(b) requires that any opposition to a noticed motion be served and filed a minimum of nine court days before the date of the hearing on the motion. (Code Civ. Proc. § 1005(b).) Nine court days before October 18, 2023 was Thursday, October 5, 2023. Because Defendant’s opposition is untimely, the Court may choose to disregard it entirely.  That said, a review of the opposition does not provide much of a basis for denying the motion.  In the opposition, Defendant complains about Plaintiff’s failure to meet and confer before filing the motion to compel, but that is not required for a motion to compel initial responses.  Defendant also uses its opposition to seek relief from its waiver of objections, but such relief can only be sought by way of a noticed motion.  Finally, Defendant claims to have served a proper response but does not submit it for the Court’s review.  Thus, even if the Court were to consider the opposition, the result would be the same.  

Analysis

            Plaintiff moves to compel initial responses to requests for production propounded to Defendant. Plaintiff served Requests for Production, Set One, on January 31, 2023 by mail. (Declaration of Nadia Yashar ISO Mot. ¶ 2, Exh. 1.) Defendant’s responses were therefore due on March 6, 2023. (Id. ¶ 3.) As of the time the motion was filed, no responses had been received. (Id. ¶ 5.)

            Plaintiff is therefore entitled to an order compelling responses.  If Plaintiff concedes that Defendant served a verified response after the motion was filed, the Court will decline to order an initial response and rule only on the sanctions request.

Sanctions

            Plaintiff requests sanctions for Defendant’s failure to provide timely responses to requests for production.

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.”

            Sanctions are mandatory in connection with motions to compel responses to requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel. (Code Civ. Proc. §§ 2031.300 (c); 2031.310(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.”  (Id.)

Here, Plaintiff requests sanctions against Defendant and its counsel, jointly and severally, in the amount of $1,681.65. This request is based on one hour of attorney time incurred at a rate of $350 per hour, plus $61.65 in filing fees, plus an additional 3.5 hours anticipated attorney time and $45 in anticipated costs. (Yashar Decl.  ¶¶ 7-8.) The Court declines to award fees and costs not actually incurred and will therefore reduce the award of sanctions to $411.65, representing the fees and costs actually incurred.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Compel Responses to Requests for Production is GRANTED.

Defendant is ordered to produce verified, code-compliant responses without objections within 30 days of this order.

Plaintiff’s request for sanctions is GRANTED in the amount of $411.65 against Defendant and its counsel, jointly and severally. Payment is to be made within 10 days of this order.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  October 18, 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.