Judge: Yolanda Orozco, Case: 21STCV11618, Date: 2023-03-07 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 21STCV11618    Hearing Date: March 7, 2023    Dept: 31

MOTION TO COMPEL INITIAL DISCOVERY

TENTATIVE RULING 

Plaintiff’s motions to Compel Request for Production of Documents, Form Interrogatories, Special Interrogatories are GRANTED. The motion to deem RFA's admitted is DENIED 

The Court also GRANTS Plaintiff’s request for monetary sanctions in the amount of $1,159.95 against Duncan J. McCreary. 

Plaintiff is also ordered to pay the filing fee for the additional motions to compel. 

Background 

On March 25, 2021, Plaintiff Patrice Duren filed a Complaint against Defendant Centinella Car Wash Properties, LLC for Violation of the Unruh Civil Rights Act. 

On February 06, 2023, Plaintiff Patrice Duren filed a Motion to Deem Requests for Admission Admitted (RFA), Responses to Request for Production of Documents (RPD), and a Motion Compel Response to Form Interrogatories (FROGS) and Special Interrogatories (SROGS) 

No opposition or reply has been filed.  

Legal Standard 

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses.  (Code Civ. Proc., §§ 2030.010, 2030.290, 2031.300, 2033.280; 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., §§ 2030.290, subd. (a), 2031.300, subd. (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. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.)  

¿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., §§ 2030.010, 2030.290, 2031.300, 2033.28;¿Sinaiko¿Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 404.)¿ 

Discussion 

Motion to Compel Initial Discovery 

Plaintiff moves to compel responses to Request for Production of Documents (RPD), Form Interrogatories (FROGS), Special Interrogatories (SROGS) and Deem Request for Admission (RFA) admitted. 

On September 17, 2021, Plaintiff propounded discovery on Defendant. (See e.g. Calhoun Decls. Ex. 1, 2.) Responses were due on October 22, 2021, and no extension was granted or requested.

Plaintiff’s counsel sent a follow-up email on May 24, 2022, inquiring about the status of the responses, but no response was given. Another follow-up email was sent on January 27, 2023, but again no response was provided. 

Based on the foregoing, Plaintiff’s Motions to Compel responses to RPDs, FROGS, and SROGS are GRANTED. At the hearing, Defendant informed the Court that responses to the RFAs had been served prior to the hearing. Plaintiff confirmed receipt of same. The Court DENIES the motion to admit Plaintiff’s Request for Admissions.  

Request for Sanctions

Plaintiff’s notice of motions properly stated that sanctions are sought against Defendant and Defendant’s counsel, Duncan J. McCreary, in the amount of $1,616.65. (See Code Civ. Proc., § 2023.040.)  

Plaintiff’s counsel’s hourly rate is $650.00 per hour, which Plaintiff’s counsel asserts is reasonable for an attorney in Southern California with 30 years of experience. (Calhoun Decl. ¶ 5.) Plaintiff’s counsel asserts he spent 1.2 hours drafting the motion and anticipates spending 0.5 hours drafting a reply and appearing at the hearing for this motion. (Id.) In addition, attorney Shannon Duane spent 1.5 hours on this matter billed at a rate of $300.00 per hour. (Id.) Plaintiff also requests $61.65 in filing fees. (Id.) 

Given Defendant’s failure to respond, the Court agrees that sanctions are warranted against Defendant’s counsel. However, given that the motions involve simple discovery matters, it is unclear what Shannon Duane spent 1.5 hours working on. Moreover, no reply or opposition has been filed. 

The Court grants Plaintiff $975.00 in monetary sanctions against Defendant and Duncan J. McCreary for 1.5 hours of work billed at a rate of $650.00 per hour. 

Plaintiff also improperly combined the motion to compel FROGS and SROGS into a single motion. (See Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011) [“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”]) Accordingly, Defendant owes the filing fee on an additional discovery motion. Statutorily required filing fees are jurisdictional and “it is mandatory for the court clerks to demand and receive statutorily required filing fees.” (See Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.) 

However, the Court agrees that Plaintiff is entitled to recover $184.95 in filing fees for the three motions filed ($61.65 x 3 = $184.95). 

In total, Plaintiff’s request for monetary sanctions against Duncan J. McCreary is GRANTED in the amount of $1,159.95 ($975.00 + $184.95). 

Conclusion 

Plaintiff’s motions to Compel Request for Production of Documents, Form Interrogatories, Special Interrogatories are GRANTED. Defendant is ordered to serve responses within 30 days. The motion to Deem Request for Admission admitted is DENIED.

The Court also GRANTS Plaintiff’s request for monetary sanctions in the amount of $1,159.95 against Duncan J. McCreary. 

Plaintiff is also ordered to pay the filing fee for the additional motion to compel. 

Moving party to give notice.