Case Number: BC541388    Hearing Date: August 13, 2014    Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
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Hearing Date: Wednesday, August 13, 2014
Calendar No: 10
Case Name: Daniel A. Dubois CPA & Co., Inc. v. International Pallets, Inc.
Case No.: BC541388
Motion: Motions to Compel Responses to Form Interrogatories, Special Interrogatories, and Requests for Production of Documents; Motion to Deem Requests for Admissions Admitted
Moving Party: Plaintiff Daniel A. Dubois CPA & Co., Inc.
Responding Party: Defendant International Pallets, Inc.
Notice: OK

Tentative Ruling: Motions to compel discovery responses are granted: Defendant is to provide responses without objection within 10 days. Absent a showing of compliance with CCP § 2033.280(a)(1), the motion to deem requests for admissions admitted is granted. Sanctions are awarded in Plaintiff’s favor against Defendant, and Defendant’s counsel of record, jointly and severally, in the total reduced amount of $1,300 to be paid within 30 days.
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Background –
On 4/2/14, Plaintiff Daniel A. Dubois CPA & Co., Inc. filed this action against Defendant International Pallets, Inc. asserting causes of action for fraudulent transfer and foreclosure of lien. Plaintiff alleges that it obtained a judgment against E & A Pallets (Case No. 11C01586) (Complaint ¶¶ 13-14) and a judgment lien on E & A Pallet’s assets (id. ¶¶ 15-16). After obtaining the liens, Defendant acquired all or most of E & A Pallet’s assets and began operating the E & A Pallet’s business. Id. ¶ 17. On 5/8/14, Defendant filed an answer. CMC is set for 8/13/14.

Discovery Motions –
On 7/17/14, Plaintiff filed motions to compel Defendant to provide responses to form interrogatories, special interrogatories, and requests for production of documents and to deem requests for admissions admitted. Plaintiff submits that this discovery was served on 4/28/14 (Mattison Decls. ¶ 3, Ex. A): despite Plaintiff’s counsel granting extensions requested by Defendant’s counsel’s office and communicating with Defendant’s counsel’s office (id. ¶¶ 5-11, Exs. B-F), Defendant has failed to provide responses (id. ¶ 12). In opposition, Defendant does not oppose the discovery motions and asserts that discovery responses without objection have been or will be provided prior to the hearing. Opp’n p. 1:5-6, 3:6-9, 4:1-12. However, Defendant’s counsel opposes the award of sanctions on the ground that he re-injured his knee and was hospitalized resulting in the requested extensions and the inability respond to the discovery requests. Sargent Decl. ¶ 6.

1. Objections
Plaintiff objects to portions of the declaration of Defendant’s counsel. Objection Nos. 4-7 are sustained on relevancy grounds; and the remaining objections are overruled as they simply dispute portions of Defendant’s counsel’s declaration.

2. Merits
The Court notes that it appears that Defendant’s counsel has been able to work at least as of 7/18/14 (Sargent Decl. ¶ 6); however, there has been no evidence submitted that establishes that responses have been provided (cf. Reply p. 4:6-7 (asserting, without evidence, that no responses have yet been provided)). Therefore, the motions to compel responses without objection to form interrogatories, special interrogatories, and requests for production of documents are granted. If Defendant fails to bring proof of service of substantially compliant responses to the requests for admissions at the hearing (CCP § 2033.280(a)(1)), the Court will deem the requests for admissions admitted.

3. Sanctions
Even if responses are provided after the motions were filed, the Court retains the authority to rule on the discovery motions especially as to sanctions. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409; CRC 3.1348(a). Sanctions are mandatory under CCP § 2033.280(c) and authorized under CCP §§ 2030.290(c) and 2031.300(c). However, monetary sanctions are still subject to CCP § 2023.030(a), which permits the Court to consider whether other circumstances that make the imposition of a sanction unjust.

Plaintiff requests monetary sanctions of $660 as to each motion. Mattison Decls. ¶ 13 (reflecting 1 hour to draft the motion, 1 hour to review opposition and prepare reply, and one hour to attend the hearing at the hourly rate of $200 and $60 in filing fees). The Court notes that Defendant’s opposition faults Plaintiff for failing to make any meet and confer efforts prior to the discovery motions having been filed. However, the discovery statutes do not require meet and confer efforts. Additionally, the Court notes that Defendant’s counsel fails to explain why communications were not made to Plaintiff’s counsel following 7/11/14 or why responses have not yet been provided. Nevertheless, the Court notes that this discovery dispute was straightforward, the motions were substantively identical, and these motions are set for hearing on the same date as the CMC.

Under these circumstances, the Court finds that Plaintiff is entitled to an award of monetary sanctions in the total reduced amount of $1,300 (reflecting 5 hours at the hourly rate of $200 and $300 in filing fees).