Case Number: BC624310 Hearing Date: November 19, 2019 Dept: 4A

Motion to Compel Responses to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One)

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On June 17, 2016, Plaintiff Miguel S. Guerra (“Plaintiff”) filed a complaint against Defendants Smart Wash, LLC and Baldwin Gardens, Inc. alleging negligence and premises liability for an incident that occurred on June 19, 2014.

On September 26, 2018, Plaintiff amended his complaint to name Defendants Sweet Spirit, Inc. as Doe 1 and Voytek Enterprises, LLC as Doe 2.

On December 3, 2018, Plaintiff amended his complaint to name Defendant Jiyoung Hwang as Doe 3.

On December 18, 2018, the Court entered default against Defendant Smart Wash, LLC.

On June 13, 2019, Plaintiff amended his complaint to name Defendants Premier Laundry Systems, Inc. as Doe 4, Wojciech Michnicki as Doe 5, Easy Wash as Doe 6, William Ann Kaing as Doe 7, Payless Shoesource, Inc. as Doe 8, and Payless Holdings, LLC as Doe 9.

On August 19, 2019, Plaintiff filed a first amended complaint.

On October 16, 2019, Defendant/Cross-Complainant Baldwin Gardens, Inc. filed a cross-complaint against Roes 1-20 seeking express indemnity, equitable indemnity, equitable contribution, and declaratory relief.

On October 17, 2019, Defendant/Cross-Complainant Baldwin Gardens, Inc. filed an amendment to its cross-complaint renaming Roe 1 as Defendant/Cross-Defendant Payless Holdings LLC and Roe 2 as Cross-Defendant Payless Shoestore, Inc.

On October 23, 2019, Defendant/Cross-Complainant Baldwin Gardens, Inc. filed motions to compel responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One) pursuant to California Code of Civil Procedure sections 2030.290, subdivision (b) and 2031.300, subdivision (b).

Trial is set for May 7, 2020.

PARTY’S REQUESTS

Defendant/Cross-Complainant Baldwin Gardens, Inc. (“Moving Party”) asks the Court to compel Plaintiff to provide verified responses without objections to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) within 10 days of the hearing on these motions due to Plaintiff’s failure to provide timely responses.

Moving Party also asks the Court to impose monetary sanctions of $1,088 against Plaintiff and/or his attorneys of record for their abuse of the discovery process.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc., § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905–906.)

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc., § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc., § 2031.300, subd. (a).) Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

Under California Code of Civil Procedure section 2023.030, subdivision (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc., § 2023.010.)

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 unless 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.” (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c).)

DISCUSSION

On June 27, 2019, Moving Party served Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) on Plaintiff by U.S. mail. (Both Declarations of Dordaneh Ghaemi (“Ghaemi Decl.”), ¶¶ 4, Exh. A.) Moving Party granted four extensions, providing an ultimate deadline of September 16, 2019 for Plaintiff’s outstanding responses to be served on Moving Party. (Ghaemi Decl., ¶¶ 6.) On September 16, 2019, Plaintiff served Moving Party with responses to the outstanding discovery. (Both Declarations of Ron A. Rosen Janfaza, ¶¶ 3, Exh. 2.) Plaintiff’s responses were unverified. (Replies, p. 2:3-2:12.) Moving Party had not received Plaintiff’s verified outstanding responses as of the time Dordaneh Ghaemi signed Dordaneh Ghaemi’s declarations on October 14, 2019. (Ghaemi Decl., ¶¶ 8, 10.)

The discovery was properly served and Plaintiff failed to provide the verified responses in a timely fashion. Plaintiff’s unverified responses are akin to no responses at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Because informal discovery conferences are required only where there is a dispute over the sufficiency of initial verified responses, Moving Party was not required to pursue an informal discovery conference before the hearing on the motion to compel. Thus, an order compelling verified responses is appropriate.

There are no facts showing Plaintiff acted with a substantial justification or that other circumstances exist such that an imposition of sanctions would be unjust. Moving Party’s request of $1,088 in monetary sanctions consists of 4 hours in preparing the moving papers and 4 hours in appearing at the hearings at a rate of $121 an hour, plus two $60 filing fees. (Ghaemi Decl., ¶¶ 11) The Court finds this to be an unreasonable. The motions are nearly duplicative and the hearings are to take place in the same courthouse, in the same department, on the same date, consecutively. Rather, the Court finds $846 ($121/hr. x 6 hrs. plus two $60 filing fees) to be a reasonable amount of sanctions to be imposed against Plaintiff and his counsel of record for their abuse of the discovery process.

The motions are therefore GRANTED.

The Court orders Plaintiff to serve verified responses without objections to Moving Party’s Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) within 20 days of this order.

The Court also orders Plaintiff and his counsel of record pay Moving Party $846, jointly and severally, within 30 days of this order.

Moving Party is ordered to give notice of this ruling.