Case Number: BC658366 Hearing Date: April 23, 2018 Dept: 3

BRETT BLUMSTEIN,

Plaintiff(s),

vs.

MIRIAM DEL ROSARIO GUERRERO CANSECO, ET AL.,

Defendant(s).

Case No.: BC658366

[TENTATIVE] ORDER DEEMING MOTION TO DEEM RFAS ADMITTED MOOT; IMPOSING SANCTIONS IN A REDUCED AMOUNT

Dept. 3

1:30 p.m.

April 23, 2018

Plaintiff, Brett Blumstein propounded form interrogatories, special interrogatories, RPDs, and RFAs on Defendant, Miriam Del Rosario Guerrero Canseco on 2/01/18. Responses were due on or before 3/08/18. As of 3/21/18, when Plaintiff filed the motion, Defendant had not served responses; Plaintiff therefore filed the instant motion seeking to have the RFAs deemed admitted, for an order that the objections to the other discovery “be waived,” and for imposition of sanctions.

On 4/06/18, Defendant timely filed opposition to the motion. Any reply to the opposition was due on or before 4/16/18. The Court has not received a reply to the opposition.

The opposition establishes that the motion to deem RFAs admitted is moot, as Defendant served verified responses without objection on 3/28/18. The Court cannot, per CCP §2033.280(c), deem the RFAs admitted when substantially code-compliant responses are served prior to the hearing.

The Court has never heard of a motion to deem objections waived and Plaintiff cites no authority for such a motion. The proper procedure in a case where responses have not been served is to file a motion to compel responses without objection. See CCP sections 2030.290(b) and 2031.300(b). Therefore that part of the motion is denied.

The remaining issue is whether to impose sanctions. Notably, §2033.280(c) makes imposition of sanctions absolutely mandatory if the responding party’s failure to timely respond necessitates the filing of the motion; there is no discretion to refuse to impose sanctions due to substantial justification or good cause, as there is in connection with interrogatories and RPDs.

Defendant argues sanctions should not be imposed, or should be imposed in a reduced amount, because there was no need to file the motion per the 3/27/18 correspondence and service of responses. This correspondence, however, was after the motion was filed and well after responses to the RFAs were due. Defendant also argues Plaintiff’s attorney likely works on a contingency fee; Defendant fails to cite any authority for the position that an attorney working on a contingency fee cannot recover the reasonable value of her services in connection with a discovery motion, and the Court knows of none.

The Court does, however, agree that the request for sanctions is excessive. Plaintiff seeks to recover a total of $4130 in monetary sanctions. The Court awards one hour to prepare the form discovery motion and two hours to appear at the hearing, all at the reasonable rate of $250/hour, for a total of $750 in attorneys’ fees. The Court awards the filing fee of $60. The Court therefore awards a total of $810 in sanctions. Sanctions are sought and imposed solely against Defendant and not against her attorney of record; she is ordered to pay sanctions to Plaintiff, by and through his attorney of record, in the amount of $810, within twenty days.