Judge: Yolanda Orozco, Case: 21STCV44080, Date: 2022-08-11 Tentative Ruling
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Case Number: 21STCV44080 Hearing Date: August 11, 2022 Dept: 31
MOTION TO COMPEL IS DEEMED MOOT
Background
On December 12, 2021, Plaintiff Elena Svistina filed a Complaint against Advanced Properties LLC, Michael Eghbali, and Does 1 through 50. The Complaint alleges:
1. Breach
of Written Agreement
2. Breach
of the Covenant of Quiet Enjoyment
3. Violation
of Civ. Code. §§ 1941, 1941.1, and 1942.4 (against LLC and Does 1 to 10)
4. Willful
Interruption of Services in violation of Civ. Code § 789.3 (against LLC and
Does 1 to 10.)
5. IIED
6. NIED
7. Privat
Nuisance
8. Intentional
Misrepresentation
9. Negligent
Misrepresentation
10. Unlawful Actions
by Landlord to Influence Tenant to Vacate in violation of Civ. Code § 1040.2(a)
11. Negligence
12. Unfair Completion Law in violation of Bus. & Prof. Code § 17200, et seq.
On May 5, 2022, Plaintiff filed two motions to compel request for production of documents, request to form interrogatories and request to special interrogatories.
Opposition papers were filed on July
29, 2022. Plaintiff filed a reply on August 02, 2022.
Legal Standard
Where a party fails to serve
timely responses to discovery requests, the court may make an order compelling
responses. (Code Civ. Proc., §§
2030.290, 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., §§ 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.)
Discussion
I. Motion to Compel
On February 11, 2022, Plaintiff, pursuant to COVID-19 emergency orders, emailed the following discovery requests to Defendants:
1. Form
Interrogatories, Set One to Defendant Michael Eghbali,
2. Special
Interrogatories, Set One to Defendant Michael Eghbali,
3. Request
For Production of Documents, Set One to Defendant Michael Eghbali,
4. Form
Interrogatories, Set One to Defendant Advanced Properties, LLC
5. Special
Interrogatories, Set One to Defendant Advanced Properties, LLC,
6. Request For Production of Documents, Set One to Defendant Advanced Properties, LLC
A response was due on March 15, 2022. (Mot. Ex. A.) Although not required, Plaintiff did try to meet and confer with Defendants’ counsel regarding Defendants’ failure to respond to written discovery. (Mot. Ex. B.)
First, Defendants’ counsel asserts that delays were due to one of the handling attorney’s recent diagnosis with a serious illness. (Garchie Decl. ¶ 5.) Defendants assert that verified responses to all of Plaintiff’s discovery requests were served on July 28, 2022. (Id. ¶ 6.) Accordingly, Plaintiff’s Motion is moot and sanctions are unnecessary.
Secondly, Defendants argue that the motion is also improper because it provides no notice to Defendants and combines four separate motions into two motions when a separate motion was required for each discovery response requested.
The Court addresses each of the issues raised by Defendants in turn.
a. Mootness of Motion
Plaintiff asserts that despite
Defendants serving responses, the responses are improper because there are
general objections that were waived pursuant to CCP § 2030.290. Plaintiff is
correct in noting that unless Defendants obtain a waiver from the court, Defendants
cannot raise objections to the interrogatories or requests for production. (CCP
§§ 2030.290(a), 2031.300(a); see also Leach v. Superior Court (1980) 111 Cal.App.3d 902, 906 [“Where no objections have been made within
the statutorily permitted time, they are deemed waived.”].)
In Sinaiko Healthcare Consulting the Appeal Court laid out several options the Court may take where late discovery responses have been served:
“Whether a particular response does resolve satisfactorily the issues raised by a motion is a matter best determined by the trial court in the exercise of its discretion, based on the circumstances of the case. In many cases involving untimely responses, the propounding party will take the motion off calendar or narrow its scope to the issue of sanctions. If the propounding party proceeds with the motion, however, the trial court has the discretion to rule on the motion. The trial court might [1] compel responses without objection if it finds no legally valid responses have been provided to one or more interrogatories; [2] it might deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions; [3] it might treat the motion as one under section 2030.300 and either determine that further answers are required, or order the propounding party to “meet and confer” (§ 2030.300, subd. (b)) and file a separate statement (Cal. Rules of Court, rule 3.1020(a)(2), (c)); or [4] it might take the motion off calendar, thereby requiring the propounding party to file a motion under section 2030.300.”
(Sinaiko, supra, 148 Cal.App.4th at 409.)
In this case, the Court will adopt option 3 and treat the motion as compelling further responses and order all parties to meet and confer and attempt to resolve, or at least narrow, the discovery dispute. If no resolution is reached, Plaintiff may file a motion to compel further responses accompanied by separate statement. Any motion involving the content of a discovery request must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a).) “A separate statement is not required when no response has been provided to the request for discovery.” Cal. Rules of Court, rule 3.1020(b).) Accordingly, this Motion is moot.
b. Deficiencies in Plaintiff’s Motion
Defendants correctly point out that Plaintiff’s motions lack notice of motion.
“A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Code of Civil Procedure section 1010 requires that a notice of motion must state ‘the grounds upon which it will be made.’ California Rules of Court, rule 311 requires a notice of motion to state in its opening paragraph “the nature of the order being sought and the grounds for issuance of the order.” As a general rule, the trial court may consider only the grounds stated in the notice of motion. [Citation].”
(Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)
Although Plaintiff’s motions to compel lacked notice of
motion, “[a]n omission in the notice
may be overlooked if the supporting papers make clear the grounds for the
relief sought.” (Luri, supra, 107
Cal.App.4th at 1125.) From Defendants Opposition to Plaintiff’s motion, it is
clear that Defendants understand what relief Plaintiff seeks. For this reason,
the Court addressed the motions on the merits.
Lastly, since Plaintiff failed to file a separate motion for each discovery response, the Court orders her to pay the separate filing fee due for each motion and file proof of payment within 7 days. (Govt. Code § 70617(a).)
II. Sanctions
Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel. (Code Civ. Proc. §§ 2030.290, subd. (c), 2030.300, subd. (d), 2031.300, subd. (c), and 2031.310, subd. (h).) However, sanctions are not mandatory if the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id.)
Plaintiff seeks $500.00 in sanctions. However, Plaintiff’s counsel, Shantel Yaghoobian, in her declaration asserts that her billing rate is $250.00 per hour. (Yaghoobian Decl. ¶ 14.) Yaghoobian asserts that the $500.00 requested reflects the time she spent preparing, researching, and appearing at the hearing for this motion.
Defendants argue that sanctions are not warranted because verified responses were served. Sanctions for a motion to compel are mandatory and under the Discovery Act the Court can award sanctions even if a response is provided. (CRC, rule 3.1030(a).)
Defendants assert that the delay was due to the other handling attorney’s health issues and that Plaintiff’s counsel was aware of the health issues. (Garchie ¶ 5.) Defense counsel has not shown it acted with substantial justification or that other circumstances make imposing sanctions unjust because Defense counsel does not explain why an extension was not sought or why the other handling attorney could not provide responses.
Accordingly, the Court awards Plaintiff’s request for sanctions in the amount of $500.00 against Defendants and their attorney of record.
Conclusion
Plaintiff’s Motion to Compel is Moot.
Parties are ordered to meet and confer regarding any disputes over the objections raised by Defendants. If no resolution is reached, Plaintiff may file a new notice of motion to compel further responses accompanied by a separate statements showing the items in dispute.
Plaintiff must file proof of payment of all motions fees due within 7 days.
Plaintiff’s request for Sanctions in the amount of $500.00 is GRANTED.
Plaintiff is to give notice.
The
parties are strongly encouraged to attend all scheduled hearings virtually or
by audio. Effective July 20, 2020, all matters will be scheduled virtually
and/or with audio through the Court’s LACourtConnect technology. The parties
are strongly encouraged to use LACourtConnect for all their matters. All masking
protocols will be observed at the Courthouse and in the courtrooms.