Judge: Upinder S. Kalra, Case: 21STCV32326, Date: 2022-09-01 Tentative Ruling

Case Number: 21STCV32326    Hearing Date: September 1, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   September 1, 2022                                         

CASE NAME:            Narciso Aparicio, et al. v. Carol Holloway, et al.

CASE NO.:                21STCV32326

PLAINTIFF’S MOTION TO COMPEL RESPONSES FROM DEFENDANT PAUL HOLLOWAY

MOVING PARTY: Plaintiff

RESPONDING PARTY(S): None as of August 29, 2022

REQUESTED RELIEF:

1.      An order compelling Defendant Paul Hollowayto provide responses to the Form Interrogatories, and Production of Documents.

TENTATIVE RULING:

1.      Motions to Compel Responses to Form Interrogatories and Production of Documents are GRANTED.

2.      Request for Sanctions is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On August 31, 2021, Plaintiffs Narciso Aparicio, Librada Barca, Luis Enrique Aparicio, Wilber Aparicio, Erick Aparicio, Govani Aparicio, Magiber Aparicio, and Ashley Aparicio (“Plaintiffs”) filed a complaint against Defendants Carol Holloway and Paul Holloway (“Defendants”.) The complaint alleged two causes of action (1) Negligence, and (2) Tortious Breach of Implied Warranty of Habitability. The complaint alleges that Plaintiffs were tenants of the Subject Property. Defendants represented themselves to be property manager and landlord. The property was infested with vermin and rats, and had water leaks. As a result, Plaintiffs have suffered physical injuries, emotional distress and damage to their personal property.

LEGAL STANDARD

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.) 

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.) 

ANALYSIS:

Plaintiffs move the Court to compel Defendant to provide responses to discovery. The Plaintiffs served a Form Interrogatories and Requests for Production of Documents. While Plaintiffs filed two separate motions, the motions are similar and will be analyzed in one motion.

            Plaintiffs propounded discovery on Defendant Paul Holloway on December 15, 2021, via electronic service. (Dec. Brinton, Ex. A.) Defendant was given an extension to provide responses by March 4, 2022. (Dec. Brinton, Ex. B). However, Defendant did not provide any responses. Even though a motion to compel responses does not require a party to resolve the matter informally, Plaintiff attempted to communicate with defense counsel.

            Defendant’s responses were not provided in a timely fashion. This discovery is relevant, and responses are required. Plaintiff’s Motion to Compel both Form Interrogatories and Requests for Production of Documents is GRANTED.

Sanctions:

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) Furthermore, a Court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response…” (Code Civ. Proc., §§ Code Civ. Proc., § 2030.290, 2031.300.)

Plaintiffs request $1,050 in attorneys’ fees. This is based on an hourly rate of $350, with 2 hours of work for the current motion, plus an anticipatory 1 hour for reviewing and preparing the reply. As there was no opposition, the Court awards sanctions in the amount of $700 total for both motions. 

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to Compel Responses as to Form Interrogatories and Request for Production of Documents is GRANTED. Defendant is to file verified responses without objections, within 30 days of service of this order.

            Request for Sanctions is GRANTED in the amount of $700 payable within 30 days of service of this order.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             September 1, 2022                  _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court