Judge Upinder S. Kalra, Case 20STCV28277 2022-09-27 Tentative Ruling

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CASE NAME: State Farm Mutual Automobile Insurance Company v. Marina Chaliyan, et al.

2. An order compelling Defendants to provide responses to Special Interrogatories, Set Two, Form Interrogatories, Set Two, Request for Production, Set Two.

2. Motion to Compel as to the Form Interrogatories, Special Interrogatories, Request for Production is GRANTED.

3. Motion to Deem Admitted the Requests for Admissions is DENIED. However, Defendants are to provide proper responses to RFAs No. 34 and 35.

On July 27, 2020, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed a complaint against Defendants Marina Chaliyan, Yuriy S. Chaliyan, Jacqueline Chaliyan, Madlen Chaliyan, Svetlana Yakimidi (“Defendants”) for declaratory relief. The complaint alleges that the Defendants, who had a policy with Plaintiff, filed a claim for property damages to the vehicle as well as bodily injuries and medical treatment. Plaintiff investigated Defendants’ claims and alleges that there are indications of fraud.

On June 23, 2022, Plaintiff filed five Motions to Compel. Defendants filed an Opposition on September 1, 2022. Plaintiff’s reply was filed on September 8, 2022.

Plaintiff argues that the Opposition was untimely as it was not served on Plaintiff until September 6, 2022. (Dec. Flores, Ex. 5.) While this may be untimely, the Defendants had a chance to address the merits of the matter and thus Court will contemplate the Opposition.

When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days. In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.

Further, “Defendant” also includes “Cross-Defendant.” (CCP § 425.11(a)(3).)

A court is permitted to intervene if a party fails to timely serve responses to discovery requests. (Code Civ. Proc., §§ 2030.290; 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve a timely response to the discovery request waives any objection to the request, including one based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290(a), 2031.300(a); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 404.) The propounding party may move the court for orders compelling responses to interrogatories and demands for inspection. (Code Civ. Proc., §§ 2030.290(b), 2031.300(b); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 404.) Furthermore, if a party to whom requests for admission have been directed fails to serve a timely response, the requesting party may move for an order that the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanctions. (Code Civ. Proc., §§ 2023.010, 2033.280.)

Unverified discovery responses are tantamount to no response at all, and are subject to a motion to compel responses (rather than a motion to compel further responses). Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 635-36.

If a propounding party moves for and obtains a court order compelling a response, the court shall impose monetary sanctions against the party failing to timely respond to interrogatories and demands for inspection unless that party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., §§ 2030.290(c), 2031.300(c); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 404.)

Plaintiff/Cross-Defendant moves to compel Defendants/Cross-Complainants to provide a statement of damages as well as responses to Special Interrogatories, Set Two, Form Interrogatories, Set Two, Request for Production, Set Two and to Deem Requests for Admissions Admitted, Set Two.

Plaintiff served discovery and a request for a statement of damages on March 24, 2022. The deadline to respond to the request for a statement of damages was April 12, 2022. Responses to the other four discovery requests were due on April 26, 2022. (Dec. San ¶ 3-4.) When no responses were filed, Plaintiff contacted Defendants’ counsel whereby counsel informed that the office had been shut down due to Covid-19 cases and requested Plaintiff “be patient.” (Dec. San ¶ 6.) In early May, Plaintiff’s counsel contacted Defendants’ counsel again to obtain the responses, but as of June 23, 2022, Defendants did not provide a response to either of the requested interrogatories.

Defendants contend that the motion should be denied for two main reasons. One, Plaintiff failed to properly serve Defendants, as the discovery was not sent to the correct and designated service email address. Under CCP § 1010.6, service via email may be done with consent and must be done to the designated address. The proof of service indicates that the email address used was “info@thekrugerlawfirm.com” but the designated service address is “krugerlaw@thekrugerlawfirm.com;” thus, Defendants did not receive notice of this hearing. Second, the matter is moot because on August 26, 2022, Defendants provided responses.

Defendants’ claim that service was improper fails. There is evidence that Plaintiff previously used the designated service address that Defendants assert is incorrect. For example, Plaintiff filed a Motion for Stay of Proceedings on June 21, 2021. The Proof of Service attached indicates that Defendants were served via email to the address “info@thekrugerlawfirm.com.” In their opposition filed on July 28, 2021, Defendants do not raise the issue of improper service. Additionally, in the Declaration of Marlene K. Flores, Exhibit 2 contains an email from Mimecast, a program used to send large number of documents, that indicates: “The recipient Info@thekrugerlawfirm.com (Info@thekrugerlawfirm.com) logged in at Jun 23 2022 15:42 to access the file(s) you have sent.” Moreover, emails provided in Exhibit 3 of the Flores Declaration indicate that Defendants received the motions as they requested Plaintiff’s stipulation to continue the ex parte application, which was served with the discovery motions. (Dec. Flores, Ex. 3.) Thus, this argument for improper service fails.

As for Defendants’ claim that the matter is moot because responses as have been provided, this also fails. Plaintiff is correct that the responses provided are still insufficient. The responses were due in April 2022 and Defendants did not provide a response.

First, Defendants have failed to provide a statement of damages. Under CCP § 425.11 a cross-defendant in a personal injury action to recover damages may request a statement of damages, which are to be served within 15 days. If not, the defendant can petition toe court. Here, Plaintiff/Cross-Defendant successfully requested the court to compel Defendants to provide a response. No such response has been provided.

Also, the responses to Form Interrogatories from Marina Chaliyan have not been provided. (Reply ¶ 6: 2-5.) CCP § 2030.290(b) indicates that if a party does not provide a timely response, the party who requested the discovery can move to compel a response. Because Defendants did not provide a timely response, a motion to compel is warranted. Further, Defendants Yuriy Chaliyan, Madlen Chaliyan, Svetlana Yakimidi and Jacqueline Chaliyan did not provide responses for subparts (c) and (d) of Form Interrogatory No. 17.1, only subparts (a) and (b). Additionally, Plaintiff sent requests for production, which included Nos. 36-41. However, Defendants Madlen Chaliyan, Svetlana Yakimidi and Jacqueline Chaliyan have not provided a response to any of these requests. (Reply 7: 5-12.)

Even though Defendants have since provided a response, which are still lacking, the discovery responses were still untimely and thus Defendants must provide proper responses, without objections. Lastly, the responses to RFAs No. 34 and 35 provided from Marina Chaliyan are improper under CCP § 2033.220.[1] Instead of indicating an admission, denial, or that a reasonable inquiry was made, and the party cannot either admit or deny, the response states, “neither admit or nor deny” and “Vague and Ambiguous.” Because Defendants have responded to the RFAs, the Court will not deem admitted the RFAs. However, the untimely responses are improper, and the Defendants must provide a sufficient response, either indicating an admission, a denial, or an inability to sufficiently admit the matter.

Under the above statutes, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel. However, under CCP 2023.040, the request for sanction must identify the party and the type of sanction sought. Plaintiff’s notice of motion or motion does not indicate any request for sanctions. Thus, without this request, sanctions are not imposed.

1. Motion to Compel Defendants to provide Statement of Damages is GRANTED. Defendants are to provide Statement, within 30 days of this order.

2. Motion to Compel as to the Form Interrogatories, Special Interrogatories, Request for Production is GRANTED. Defendants are to provide responses, without objections, within 30 days of this order.

3. Motion to Deem Admitted the Requests for Admissions is DENIED. However, Defendants are to provide proper responses to RFAs No. 34 and 35 within 30 days.

[1] Plaintiff also argues that the responses to Nos. 32 and 33 from Yuriy Chaliyan, Madlen Chaliyan, Svetlana Yakimidi and Jacqueline Chaliyan were improper as the responses stated, “neither admit nor deny.” However, the Plaintiff attached the responses from Marina Chaliyan twice, as Exhibits 8 and 9.