Judge Virginia Keeny, Case 20VECV01128 2022-09-30 Tentative Ruling

Judge: Virginia Keeny, Case: 20VECV01128, Date: 2022-09-30 Tentative Ruling

Case Number: 20VECV01128 Hearing Date: September 30, 2022 Dept: W

PERLA HUDSON V. ELDAV CONSTRUCTION & dEVELOPMENT

MOTION TO COMPEL DISCOVERY RESPONSES

Date of Hearing: September 30, 2022 Trial Date: January 30, 2023

Department: W Case No.: 20VECV01128

Moving Party: Defendant, Eldav Construction & Development

Responding Party: None

BACKGROUND

On October 7, 2020, Perla Hudson (“Plaintiff”) commenced the present action by filing a Complaint against Eldav Construction & Development, Inc. (“Defendant”) and Does 1 through 50. Plaintiff’s operative Complaint alleges Defendant, a contractor hired by Plaintiff, performed a sub-standard and defective remodel of Plaintiff’s residence and, thereafter, abandoned the job. Plaintiff’s Complaint alleges the following causes of action against Defendant: (1) Negligence (Construction Defect); (2) Breach of Contract; and (3) Accounting.

On November 12, 2020, Defendant filed an Answer.

On November 18, 2020, Defendant filed a Cross-Complaint against Plaintiff and various subcontractors involved in the remodel of Plaintiff’s home, including GJ Plumbing, Icon Remodeling, Inc., B.N.S. Marble & Granite, Inc., Vision Mirror and Glass, Inc., and Roes 1 through 100 (collectively, “Cross-Defendants”). On September 2, 2021, Defendant filed amended the Cross-Complaint by substituting Hi-Tech Waterproofing, LLC as Roe 1.

On June 15, 2022, Defendant served Plaintiff with Requests for Admission (Set No. 1), Form Interrogatories – Construction Litigation (Set No. 2), Special Interrogatories (Set No. 3), and Requests for Production (Set No. 3).

On August 31, 2022, Defendant filed the three instant motions to compel Plaintiff to provide responses to the following: (1) Form Interrogatories, (2) Special Interrogatories, and (3) Requests for Production. Defendant additionally requests monetary sanctions as to the motions to compel discovery of the special interrogatories and the requests for production.

Defendant additionally filed a separate motion to deem Requests for Admissions admitted. That motion is scheduled to be heard on September 29, 2022.

As of September 22, 2022, Plaintiff has filed no opposition.

[TENTATIVE] RULING

1. Plaintiff’s Motion to Compel Discovery as to the Form Interrogatories (Set No. 2) is GRANTED.

2. Plaintiff’s Motion to Compel Discovery as to the Special Interrogatories (Set No. 3) is GRANTED.

3. Plaintiff’s request for monetary sanctions as to the Special Interrogatories (Set No. 3) motion is GRANTED in the amount of $1,350.

4. Plaintiff’s Motion to Compel Discovery as to the Requests for Production (Set No. 3) is GRANTED.

5. Plaintiff’s request for monetary sanctions is as to the Requests for Production (Set No. 3) motion is GRANTED in the amount of $1,350.

LEGAL STANDARD

It is well-settled that “unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636; Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914.) Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Cal. Code Civ. Pro. §§ 2030.290, 2033.280; Sinaiko 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. (Cal. Code Civ. Pro. §§ 2030.290(a), 2033.280(a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 404.)

DISCUSSION

Form Interrogatories (Set No. 2)

On June 15, 2022, Defendant served Form Interrogatories – Construction Litigation (Set No. 2) (Motion to Compel Form Interrogatories, Krause-Leemon Decl., Ex. B.,) to Plaintiff by email, along with Requests for Admission. (Id. at Ex. A.) Defendant only checked the box for Form Interrogatory No. 326.1 requesting facts, witnesses, and documents supporting any denials of the concurrently served Requests for Admissions. (Id. at Ex. B.) Defendant requests an order compelling Plaintiff to provide verified responses to Defendant.

The Court finds Defendant is entitled to an Order compelling Plaintiff to provide verified responses to Form Interrogatories (Set No. 2). Defendant demonstrates that, on approximately June 15, 2022, Plaintiff was properly served with Defendant’s Special Interrogatories (Set No. 3) by e-mail. (Id. at ¶ 2.) Pursuant to the relevant provisions of the Code of Civil Procedure, Plaintiff was required to serve a response no later than July 19, 2022. (Code Civ. Proc., §§ 2030.260 subd. (a), 1010.6, subd. (a)(4)(B).) Defendant sufficiently demonstrates that Plaintiff failed to serve a response by the above-identified statutory deadline, or anytime thereafter. (Krause-Leemon Decl., ¶¶ 5, 9.) Accordingly, the Court finds Defendant is entitled to an Order compelling Plaintiff to respond to Form Interrogatories (Set No. 2).

The Court notes that the granting of Plaintiff’s motion to deem Requests for Admission admitted at the September 29, 2022 hearing will render this motion moot. However, if Plaintiff responds to the Requests for Admission prior to the hearing and denies any Requests for Admission, then Plaintiff is compelled to respond to the Form Interrogatories.

Special Interrogatories (Set No. 3)

On June 15, 2022, Defendant served Special Interrogatories (Set No. 3) to Plaintiff by email. (Motion to Compel Special Interrogatories, Krause Leemon Decl., ¶ 2, Ex. A.) The special interrogatories contain 12 interrogatories. (Id.) Defendant requests an order compelling Plaintiff to provide verified responses to Defendant. In addition, Defendant requests an order awarding sanctions to Defendant in the amount of $2,475 for having to bring this motion.

The Court finds Defendant is entitled to an Order compelling Plaintiff to provide verified response to Special Interrogatories (Set No. 3). Defendant demonstrates that, on approximately June 15, 2022, Plaintiff was properly served with Defendant’s Special Interrogatories (Set No. 3) by e-mail. (Id.) Pursuant to the relevant provisions of the Code of Civil Procedure, Plaintiff was required to serve a response no later than July 19, 2022. (Code Civ. Proc., §§ 2030.260 subd. (a), 1010.6, subd. (a)(4)(B).) Defendant sufficiently demonstrates that Plaintiff failed to serve a response by the above-identified statutory deadline, or anytime thereafter. (Krause-Leemon Decl., ¶¶ 5, 9.) Accordingly, the Court finds Defendant is entitled to an Order compelling Plaintiff to respond to Special Interrogatories (Set No. 3).

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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.” (Code Civ. Proc. § 2030.290(c).)

Defendant requests sanctions in the amount of $2,475 for having to bring this motion. This amount includes: a $60 filing fee, a $75 electronically filing fee, and 2.2 hours for preparation and drafting this motion, 2 hours for reviewing the opposition and drafting a reply, and 1 hour for appearing at the hearing, at a rate of $450 per hour.

Here, there is no showing that an award of sanctions would be unjust. The Special Interrogatories served are within the appropriate scope of discovery and would not be unduly burdensome to Plaintiff. However, because Plaintiff has filed no opposition, the court reduces the amount of sanctions, awarding 2.2 hours to prepare the moving papers, .5 hour to appear for the instant motion, and $135 for the filing fee. Thus, the court awards $1,350 in sanctions.

Requests for Production

On June 15, 2022, Defendant served Requests for Production (Set No. 3) to Plaintiff by email. (Motion to Compel Requests for Production, Krause Leemon Decl., ¶ 2, Ex. A.) The Requests for Production contain 16 requests seeking documents related to the sale of the home at issue and invoices or contracts for any repairs. (Id.) Defendant requests an order compelling Plaintiff to provide verified responses to Defendant. In addition, Defendant requests an order awarding sanctions to Defendant in the amount of $2,655 for having to bring this motion.

The Court finds Defendant is entitled to an Order compelling Plaintiff to provide verified responses to Requests for Production (Set No. 3) and produce any responsive documents. Defendant demonstrates that, on approximately June 15, 2022, Plaintiff was properly served with Defendant’s Requests for Production (Set No. 3) by e-mail. (Id. at ¶ 2, 3.) Pursuant to the relevant provisions of the Code of Civil Procedure, Plaintiff was required to serve a response no later than July 19, 2022. (Code Civ. Proc., §§ 2031.300 subd. (a).) Defendant sufficiently demonstrates that Plaintiff failed to serve a response or receive any documents by the above-identified statutory deadline, or anytime thereafter. (Krause-Leemon Decl., ¶¶ 5, 9.) Accordingly, the Court finds Defendant is entitled to an Order compelling Plaintiff to respond to Requests for Production (Set 3).

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, 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.” (Code Civ. Proc. § 2031.300(c).)

Defendant requests sanctions in the amount of $2,655 for having to bring this motion. This amount includes: a $60 filing fee, a $75 electronically filing fee, and 2.6 hours for preparation and drafting this motion, 2 hours for reviewing the opposition and drafting a reply, and 1 hour for appearing at the hearing, at a rate of $450 per hour.

Here, there is no showing that an award of sanctions would be unjust. The Requests for Production served are within the appropriate scope of discovery and would not be unduly burdensome to Plaintiff. However, because Plaintiff has filed no opposition, the court reduces the amount of sanctions, awarding 2.2 hours to prepare the moving papers, .5 hour to appear for the instant motion, and $135 for the filing fee. Thus, the court awards $1,350 in sanctions.

CONCLUSION

Defendant Eldav Construction & Development, Inc.’s Motions to Compel Discovery is GRANTED as to the Form Interrogatories, Special Interrogatories, and Requests for Production.

Additionally, the Court grants monetary sanctions in the amount of $2700.

PERLA HUDSON V. ELDAV CONSTRUCTION & dEVELOPMENT

MOTION TO be relieved as counsel

Date of Hearing: September 30, 2022 Trial Date: January 30, 2023

Department: W Case No.: 20VECV01128

Moving Party: Cross-Defendant, Vision Mirror & Glass, Inc.’s, Counsel – Jerri Johnson and Andrew J. Taylor

Responding Party: None

BACKGROUND

On August 4 and 6, 2021, respectively, Cross-Defendant Vision Mirror and Glass, Inc. filed an Answer to Defendant’s Cross-Complaint and a Cross-Complaint against Defendant only, alleging the following causes of action: (1) Implied Equitable Indemnity; (2) Apportionment; (3) Contribution; and (4) Declaratory Relief.

On September 2, Cross-Defendant Vision Mirror & Glass, Inc.’s counsel Jerri Johnson and Andrew J. Taylor (“Counsel”) filed this instant motion to be Relieved as Counsel. No opposition was filed.

TENTATIVE RULING

Counsel’s Motion to be Relieved as Counsel is GRANTED.

Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc. § 284, subd. (2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either: (A) The service address is the current residence or business address of the client; or (B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. (Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).)

Here, Counsel filed this motion to be relieved after circumstances arose which created a conflict between the interests of the Cross-Defendant and its insurer that prevent Counsel from providing competent and diligent representation to Cross-Defendant. (MC-052 ¶2.)

The Court is satisfied with Counsel’s reasons for seeking to be relieved. Counsel states in declaration that the Motion was served at Cross-Defendant’s last known address which was confirmed within the past 30 days. (MC-052 ¶ 3.) The Court notes that Counsel has complied with the other requirements of California Rules of Court, Rule 3.1362.

Accordingly, Counsel’s Motion to be Relieved as Counsel is GRANTED.