Case Number: EC068930 Hearing Date: February 14, 2020 Dept: NCD

TENTATIVE RULING

Calendar: 17

Date: 2/14/20

Case No: EC 068930 Trial Date: May 18, 2020

Case Name: Palomique, et al. v. Wilson Gardens Homeowners Association, et al.

DISCOVERY MOTIONS (4 Motions)

(CCP § 2030.290, 2031.300, 2033.280, 2023.010 et seq)

Moving Party: Defendant Sargis Yeritsyan

Responding Party: Defendant Wilson Garden Homeowners Association (No Opposition)

RELIEF REQUESTED:

Responses to Form Interrogatories, Set One

Responses to Special Interrogatories, Set One

Responses to Requests for Production, Set One

Order Deeming Requests for Admissions, Set One, Admitted

CHRONOLOGY

Date Discovery served: October 4, 2019

Extensions of time to respond until: January 3, 2020, without objection (Ex. D)

Date Responses served: NO RESPONSES SERVED

Date Motion served: January 20, 2020 Timely

OPPOSITION:

No opposition.

ANALYSIS:

Interrogatories and Documents

Under CCP § 2030.290, “If a party to whom interrogatories are directed fails to serve a timely response,” that party “waives any legal right to exercise the option to produce writings…as well as any objection to the interrogatories, including one based on privilege or on the protection for work product…” Under subdivision (b), “The party propounding the interrogatories may move for an order compelling response to the interrogatories.” CCP §2031.300 contains similar provisions with respect to requests to produce documents.

In this case, interrogatories and document production demands have been directed to responding party and responding party has failed to serve timely responses. Propounding party has appropriately moved for orders to compel. Accordingly, responding party has waived the option to produce writings, as well as all objections, and is ordered to respond.

Requests for Admissions

Under CCP § 2033.280, a party who fails to serve a timely response to requests for admissions “waives any objection to the requests….” In addition, the requesting 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….” CCP § 2033.280(b). The Code specifies that “The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Section 2033.220.” CCP § 2033.280(c).

In this case, requests for admissions were served on responding party on plaintiffs on October 4, 2019. Moving party extended an extension of time to respond to January 3, 2020. Responding party requested that motions to compel not be filed until January 13, 2020, but not request or obtain a further extension. Moving party nevertheless waited until January 20, 2020 to file this motion. Defendant Wilson Gardens Homeowners Association has failed to serve timely responses and has therefore waived all objections. Defendant Yeritsyan has filed a noticed motion requesting an order that the requests be deemed admitted as truth. Unless satisfactory responses are served before the hearing, the court must grant the motion.

Sanctions

With respect to Requests for Admissions, CCP § 2033.280(c) provides:

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

With respect to interrogatories, under CCP § 2030.290(c), “The court shall impose a monetary sanction… 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.” A similar provision applies to document demands. See CCP § 2031.300(c).

CCP § 2023.010 provides that misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.” Where there has been such conduct, under CCP § 2023.030(a), “The 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 the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP § 2023.030(a).

Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.

In this case, responding party has failed to respond to authorized methods of discovery and propounding party has submitted evidence that defendant has incurred expenses as a result of the conduct. Since the motions are unopposed, there is no evidence that the imposition of sanctions would be unjust. Moving defendant requests $1,460 for each motion, which appears a bit high for motions of this nature, largely cut and pasted from each other, and seeks three hours of time to attend the hearing, evidently at billing rate of $200 per hour in connection with each motion when the motions will be heard together, and the time will be awarded only once. Defendant also seeks one hour of time for each motion to review opposition, which will not be necessary, as no opposition papers have been filed. The reduced sum of sanctions in the amount of $600.00 will be awarded and the amount of $1,000.00 for one motion to account for attendance at the hearing.

RULING:

The court has accepted and reviewed the defendant Wilson Homeowner’s Association’s late filed opposition. The court may change its tentative ruling on sanctions due to counsel for defendant’s medical emergency.

Defendant Yeritsyan’s Motion to Compel Defendant Wilson Gardens Homeowners Association’s Verified Responses to Form Interrogatories, Set One, is GRANTED.

Defendant Wilson Gardens Homeowners Association is ordered to serve verified responses to Form Interrogatories, Set No. One, without objection, within 10 days.

Monetary sanctions in the amount of $1,000.00 [$1,460 requested] plus costs of $60.00 are awarded against Defendant Wilson Gardens Homeowners Association payable within 30 days. CCP §§ 2030.290(c), 2023.010(d), 2023.030(a).

Defendant Yeritsyan’s Motion to Compel Defendant Wilson Gardens Homeowners Association’s Verified Responses to Special Interrogatories, Set One, is GRANTED.

Defendant Wilson Gardens Homeowners Association is ordered to serve verified responses to Special Interrogatories, Set No. One, without objection, within 10 days.

Monetary sanctions in the amount of $600.00 [$1,460 requested] plus costs of $60.00 are awarded against Defendant Wilson Gardens Homeowners Association payable within 30 days. CCP §§ 2030.290(c), 2023.010(d), 2023.030(a).

Defendant Yeritsyan’s Motion to Compel Defendant Wilson Gardens Homeowners Association’s Verified Responses to Requests for Production, Set One, is GRANTED.

Defendant Wilson Gardens Homeowners Association is ordered to serve verified responses to Requests for Production, Set One, without objection, and to permit inspection and copying within 10 days.

Monetary sanctions in the amount of $600.00 [$1,460 requested] plus costs of $60.00 are awarded against defendant Wilson Gardens Homeowners Association payable within 30 days. CCP §§ 2031.300(c), 2023.010(d), 2023.030(a).

Defendant Yeritsyan’s Motion to Deem Admitted Matters Sought in Request for Admissions, Set One is GRANTED.

Defendant Wilson Gardens Homeowners Association has failed to serve timely responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. The Court therefore orders that all matters specified in Request for Admissions, Set One are deemed admitted as true, pursuant to CCP § 2033.280(c).

Monetary sanctions in the amount of $600.00 [$1,460 requested] plus costs of $60.00 are awarded against defendant Wilson Gardens Homeowners Association payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).

Or, if substantially compliant responses served prior to hearing:

Defendant Yeritsyan’s Motion to Deem Admitted Matters Sought in Request for Admissions, Set One is GRANTED.

The court finds that defendant Wilson Gardens Homeowners Association has served responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. However, mandatory monetary sanctions are awarded against defendant Wilson Gardens Homeowners Association pursuant to CCP § 2033.280(c) (“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion”). Monetary sanctions in the amount of $600.00 [$1,460 requested] are awarded against defendant Wilson Gardens Homeowners Association payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).