Case Number: BC658324 Hearing Date: April 30, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL RESPONSES TO DISCOVERY

On May 9, 2017, Plaintiff Brian Rattazi (“Plaintiff”) filed this action against Defendants Felix Ruben Gonzalez Soto dba Gonzalez Trucking (“Defendant”) for motor vehicle negligence relating to a May 14, 2015 vehicle collision. On December 28, 2018, Defendant served Set One of Form Interrogatories, Special Interrogatories, and Request for Production of Documents on Plaintiff. (Declaration of Jonathan A. Ross, ¶ 4.) Defendant granted two extensions on Plaintiff’s responses. (Ross Decl., ¶¶ 4, 5.) However, Plaintiff did not provide responses by the January 24, 2019 extended deadline. (Ross Decl., ¶ 6.)

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Plaintiff’s counsel states the failure to provide responses was due to the difficulty in obtaining verifications from Plaintiff. (Declaration of Stephanie Folan, ¶¶ 5, 6.) In the second week of March 2019, Plaintiff’s counsel’s firm moved offices and during that move, she lost access to their case management software and case files for approximately four weeks. (Folan Decl., ¶ 8.) During that time, Plaintiff’s counsel lost access to contact information for Plaintiff and defense counsel. (Folan Decl., ¶ 9.) Access was restored on April 12, 2019, at which point, Plaintiff’s counsel resumed efforts to reach Plaintiff, obtained his responses without objection and verifications, and served them on Defendant on April 16, 2019. (Folan Decl., ¶¶ 10, 11.) Plaintiff’s counsel requests that no monetary sanctions be imposed because she was impaired for one month from reaching Plaintiff or defense counsel.

As it appears responses without objection have been served, the Motions to compel are denied as MOOT. However, the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even where the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, Rule 3.1348(a).) Here, the month-long “outage” occurred almost three months after Plaintiff’s discovery responses were due. Plaintiff’s counsel does not explain what efforts were made between January 24, 2019 and mid-March 2019 to contact Plaintiff or to seek another extension from defense counsel. Therefore, the loss of access to case management software was not the cause of Plaintiff’s failure to timely respond to Defendant’s discovery and Plaintiff has not shown there is substantial justification for the delay.

The request for monetary sanctions is GRANTED and imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, in the reduced amount of $705.00 for three hours at defense counsel’s hourly rate of $175.00 and $180.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.