Judge Thomas D. Long, Case Number: 23STCV21727, Date: 2024-04-23 Tentative Ruling

On September 11, 2023, Plaintiff Jason Annigian filed this action against Defendant BMW of North America LLC, and on September 25, 2023, he filed a first amended complaint.

Plaintiff propounded discovery on November 20, 2023. (Pascal Decl. ¶ 3.) Defendant did not timely respond by December 20, 2023. (Pascal Decl. ¶ 4.) Plaintiff’s counsel met and conferred with Defendant’s counsel, but Defendant never provided responses. (Pascal Decl. ¶¶ 5-9.)

On January 29, 2024, Plaintiff filed a motion to compel Defendant’s responses to Requests for Production of Documents and a motion to deem Requests for Admissions admitted. Plaintiff also requested sanctions.

When a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., § 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., § 2031.300, subd. (a).) Sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2031.300, subd. (c).)

Defendant did not serve responses to Plaintiff’s discovery and filed no opposition to this motion. Accordingly, the motion to compel is GRANTED, and Defendant is ordered to serve verified responses, without objections, to Plaintiff’s Requests For Production of Documents within ten days of this order.

When a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).) The court shall grant a motion to deem admitted requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280, subd. (c).)

Defendant’s late-filed opposition states that Defendant ultimately served responses on April 17, 2024. (Opposition at p. 2.) Accordingly, the motion is now moot.

The Court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery even where the requested discovery was provided to the moving party after the motion was filed. (California Rules of Court, rule 3.1348(a).)

According to the opposition, which was not accompanied by a declaration, the handling associate is no longer with defense counsel’s office “as of a week ago.” (Opposition at p. 6.) “It was not until the next handling counsel reviewed the case files and discovered that this dispute was still ongoing and that that the discovery motions were on calendar.” (Id. at pp. 6-7.) This does not excuse the failure to timely serve initial responses in December 2023. Defendant’s dilatory behavior and service of responses almost four months late—and only in response to Plaintiff’s motion—warrants sanctions.

The Court awards Plaintiff $1,825.66 (RFPs) and $1,825.66 (RFAs), for a total sanction of $3,651.32. Defendant’s counsel is ordered to pay a total sanction of $3,651.32 to Plaintiff within ten days.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court