Case Number: BC668422 Hearing Date: March 13, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Emily Hutchings,

Plaintiff,

v.

Omar Saqir Aloteibi, et al.,

Defendants.

Case No.: BC668422

Hearing Date: March 13, 2018

[TENTATIVE] order RE:

Plaintiff’S motions to compel discovery responses from Defendant Daniel Fayad

Plaintiff’S motion to deem requests for admissions admitted

This case arises out of a motor vehicle collision on September 9, 2016. Plaintiff Emily Hutchings (“Plaintiff”) has filed two motions to compel responses from Defendant Daniel Fayad (“Defendant”) for: (1) Request for Production of Documents (“RPD”), set one; and (2) Form Interrogatories (“FROG”), set one. In addition, Plaintiff has filed a third motion to deem admitted the truth of the matters specified in the Request for Admissions (“RFA”), set one. Plaintiff also requests sanctions for Defendant’s failure to respond.

On December 8, 2017, Plaintiff served the discovery requests on Defendant. Defendant’s responses were due on or before January 12, 2018. On January 23, 2018, Plaintiff’s counsel sent a letter reminding Defendant of his failure to timely respond to the various requests and giving Defendant additional time to provide answers up to January 26, 2018. As of the filing of the motions on February 9, 2018, Plaintiff had not received responses from Defendant.

Defendant opposes all three motions. Defense Counsel states that he and his assistant failed to assign the discovery responses to a paralegal, and the response deadline passed unnoticed. (Young Decl., at ¶ 3.) He also states that he did not see the meet and confer letter until he received the motions to compel. (Ibid.) Counsel then immediately prepared the discovery responses and served the responses on the same day that the opposition was filed. (Ibid.)

In Plaintiff’s reply, Plaintiff acknowledges that Defendants responses to the RPD, FROG, and RFA were served on February 28, 2018. Plaintiff states that the only defect in the responses is that they contain objections. Plaintiff contends that Defendant waived all objections by serving untimely responses. Plaintiff does not identify any other defects in the responses.

Plaintiff moves to compel responses to the FROG and RPD pursuant to CCP §§2030.290 and 2031.300. Plaintiff is correct that section 2030.290 and 2031.300 contain provisions stating that untimely response may result in waiver of objections. However, both sections also state that the Court has the power to relieve the responding party from this waiver if two conditions are satisfied: (1) the party has subsequently served responses in substantial compliance with the relevant code sections, and (2) “the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP §§2030.290 subd., (a), 2031.300 subd., (a).)

Plaintiff also moves under CCP §2033.280 to deem the RFA admitted. Where there has been no timely response to a request for admission under CCP § 2033.010, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction. (Code of Civ. Proc., § 2033.280, subd. (b).) The party who failed to respond to the requests for admission waives any objections to the demand, unless the court grants that party relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code of Civ. Proc., § 2033.280, subds. (a)(1)-(2).)

Here, the Court finds that Defendant has served the responses, and as set forth in Defense Counsel’s Declaration, the untimeliness of the responses was due to Defense Counsel’s mistake and inadvertence. Plaintiff has raised no issues with the responses, besides the fact that they contain objections. Thus, the Court finds that the responses are in substantial compliance with their respective code sections. As such, Defendant is relieved from waiving objections to the responses. The motions to compel are denied as moot, and the motion to deem the requests for admissions admitted is also denied as moot.

Plaintiff requests sanctions for Defendant’s failure to timely respond. Although a meet and confer is not required for motions to compel such as the instant ones, the Court notes that Plaintiff may have avoided the expense of bringing these motions altogether if Plaintiff had simply called Defendant when Plaintiff’s counsel did not receive the responses on time. The one letter that Plaintiff sent prior to filing these motions granted an extension of only three days, and as such, it does not demonstrate a meaningful effort to meet and confer.

Despite Plaintiff’s Counsel’s failure to meet and confer, the Court finds Defendant’s failure to timely respond a misuse of the discovery process. For the motion to deem the RFA admitted and the motion to compel responses to form interrogatories, Plaintiff noticed sanctions only against Defendant and not his counsel. However, as noted above, nothing in the record suggests that any responsibility for the untimely responses falls with Defendant himself. Defendant’s failure to respond in a timely manner is due exclusively to mistake, inadvertence, and excusable neglect on the part of Defendant’s counsel. As such, Plaintiff’s request for sanctions against Defendant for the motion to deem the RFA admitted and the motion to compel responses to form interrogatories is denied.

For the motion to compel responses to the request for production, Plaintiff has sufficiently noticed sanctions against both Defendant and defense counsel, El Mahdi Young. As to this motion, the Court grants sanctions for 2 hours to prepare the motion and appear at the hearing, at $400.00 per hour, plus one $60 filing fee, for a total of $860.00. The Court imposes these sanctions only against Defense Counsel and not against Defendant. Defense Counsel El Mahdi Young is ordered to pay monetary sanctions in the amount of $860.00 to Plaintiff, by and through counsel, within thirty (30) days of notice of this order.

Plaintiff is ordered to provide notice of this order.

DATED: March 13, 2018 ___________________________

Elaine Lu

Judge of the Superior Court