Case Name: Karen Beatty v. Bruce Chellino, et al.
Case No: 18CV335214

I. Background

Plaintiff Karen Beatty (“Plaintiff”) brings this action against Bruce Chellino and Jane Chellino ( collectively “the Chellinos”), individually and as trustees of the Chellino Revocable Trust and Chellino Management Inc., d.b.a. C&C Landscape Construction (“C&C”) (collectively with the Chellinos, “Defendants”), for property damage.

According to the allegations of the complaint, Plaintiff owns property in Morgan Hill. (Complaint, ¶ 1.) The Chellinos and C&C own an adjacent property where they store equipment for their landscaping business and perform work including grading and drainage. (Id. at ¶ 3.) C&C negligently performed grading and construction on the property and at a nearby creek without permission, creating an unsafe floodwater hazard. (Id. at ¶ 8.) As a result, the creek drained toward and into Plaintiff’s property and residence causing damage. (Id. at ¶ 9.)

Based on the foregoing, Plaintiff brings the complaint against the Chellinos and C&C alleging two causes of action for: (1) negligence and (2) nuisance.

Presently before the Court is Plaintiff’s motion to compel further responses to request for admissions (“RFA”) and one form interrogatory (“FI”) from Defendants C&C and the Chellinos, who separately oppose the motion. Plaintiff and C&C also each request an award of monetary sanctions.

A. Discovery Dispute

1. Dispute with C&C

On February 1, 2019, Plaintiff served RFA, set one and FI, set one, on C&C along with other discovery requests. On March 22, 2019, C&C answered the RFA with objection-only responses, signed by its attorney. On March 22, 2019, C&C submitted verified responses to all FI, except FI No. 17.1, related to the RFA.

On April 26, 2019, Plaintiff’s counsel sent C&C’s counsel a meet and confer letter which relevant to the present motion, requested amended responses to the RFA, and certain FI, including No. 17.1. On April 29, 2019, counsel for C&C responded indicating that no further responses to the RFA would be forthcoming and confirming the original objections. It also promised further responses to other FI, but maintained that based on its continuing objection to the RFA, no further response to FI No. 17.1 would be provided. As promised, the amended responses to FI were served on May 20, 2019, but as indicated, no further response to RFA or FI No. 17.1 were provided.

On July 3, 2019, Plaintiff filed the present motion to compel.

2. Dispute with the Chellinos

Plaintiff served RFA, set one, and FI, set one, in addition to other discovery requests on the Chellinos on February 1, 2019. The Chellinos responded on March 28, 2019. Verifications were served on May 15, 2019, after Plaintiff’s counsel sent a meet and confer letter to the Chellinos’ counsel on May 6, 2019. However, it appears from the May 6 letter and the parties’ arguments that the RFA responses were objection-only, and no answers were provided.

On July 3, 2019, Plaintiff filed the present motion to compel.

II. Motion to Compel

Plaintiff moves to compel further responses to all the propounded RFA, set one, pursuant to Code of Civil Procedure section 2033.290 and further response to FI 17.1, set one, pursuant to section 2030.300.

A. Further response from C&C

1. Timeliness of Motion

C&C argues the motion to compel is not timely as it served its objection to all of the RFA and FI No. 17.1 on March 22, 2019, and Plaintiff did not file the present motion until July 3, 2019.

Pursuant to Code of Civil Procedure section 2033.290 subdivision (c), a motion to compel further response to RFA must be filed within 45 days of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing. Failure to comply with the 45 day time-limit waives any right to compel further response. (Code Civ. Proc, § 2033.290, subd. (c).) The same 45-day time limit applies to motions to compel further response to interrogatories. (Code Civ. Proc., § 2030.300, subd. (c).) Where answers and objections are provided “and the party desires a further response, he [or she] must make a timely motion to compel further answers.” (Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 684-685, citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 786-787.) If the motion in not timely made, the court lacks jurisdiction to order further response. (Ibid.)

Preliminarily, the Court observes that Plaintiff’s counsel’s first declaration does not attest to all facts upon which the motion relies. Significant dates, such as the dates when discovery was served or when answers were returned are missing. It also does not address the agreement referenced in the motion that “[t]he 45 days to compel discovery (all discovery) was granted to run from the date verified amended responses were served.” The supplemental declaration filed by Plaintiff’s counsel on October 15, 2019, similarly refers to an agreement being struck, however, no corresponding writing is provided. This is not code-compliant. He also fails to include any letters received from counsel for C&C, or attest to having received any.

Conversely, counsel for C&C submits a declaration which states in relevant part that responses to all requested discovery were served on March 22, 2019. (Dec. of Kate Morrow, ¶ 2.) The responses to the RFA and FI No. 17.1 consisted only of objections, signed by counsel. (Ibid.) It also declares that he responded to Plaintiff’s April 26, 2019, letter with his own letter dated April 29, 2019, wherein he stated that no further responses would be provided as C&C was standing firm on the original objections. (Id. at ¶ 4.) That letter is attached to the declaration. Counsel for C&C also attests to having “never made or communicated” an agreement to extend the deadline for the motion to compel. (Id. at ¶ 5.) Since Plaintiff failed to produce any such writing, this is credible.

Therefore, the declarations and documents submitted show that the present motion was not timely filed. Responses in the form of objections were received by Plaintiff on March 22, 2019, yet the motion was filed 103 days later. Plaintiff’s counsel acknowledges this in the April 26, 2019, letter to C&C’s counsel where he notes in relevant part: “please provide amended, verified, code compliant responses no later than Monday, May 6… or we will be forced to file a motion to compel…” (Dec. of Mark Sandberg, Exhibit A.) May 6 marked the 45-day deadline for answers received March 22. Therefore, the motion filed on July 3, 2019, is untimely, and Plaintiff has waived the right to compel further responses.

As a result, the Court lacks jurisdiction to order further responses and will not consider the merits of the motion as to C&C.

B. Further responses from the Chellinos

1. Timeliness of motion

Though not specifically raised in the Chellinos’ arguments, the issue of the timeliness of the motion must be considered by the Court. (See Sexton v. Superior Court (2016) 58 Cal.App.4th 1403, 1411 [“the burden [does] not shift to the responding party to show that the motion is untimely, but, logically, falls on the moving party who has the obligation to file within the time prescribed by law”].)

The Court reiterates the procedural deficiencies noted above with respect to Plaintiff’s declaration, failure to attest to dates referenced in the memorandum of points and authorities, and reference to an oral agreement to extend the discovery deadline, without producing any writing to that effect.

Therefore, the record before the Court as presented by Plaintiff is unclear as to when the responses were received by Plaintiff, and when time began to run to file the motion. On the one hand, while the Chellinos served their responses on March 28, 2019, verifications were not provided until May 15, 2019. However, as with C&C, the Chellinos provided objection-only responses to the RFA and FI No. 17.1, so verification was unnecessary. Therefore, the 45-day time limit began to run when the objections were served.

Furthermore, in his letter to counsel for the Chellinos dated May 6, 2019, counsel for Plaintiff states: “please provide amended, verified, code compliant responses no later than Friday, May 10 at 3:00… or we will be forced to file a motion to compel further responses and seek costs…” (Dec. of Mark Sandberg, Exhibit B.) This is a clear acknowledgment that the 45 day period actually ran from March 28, 2019, and that May 10 was the deadline to file the present motion. Therefore, the motion to compel filed on July 3, 2019, was not timely and Plaintiff has waived her right to compel further responses.

As a result, the Court lacks jurisdiction to order further responses and will not consider the merits of the motion as to the Chellinos.

III. Request for monetary sanctions

A. Plaintiff’s request

Plaintiff seeks sanctions for attorney’s fees pursuant to Code of Civil Procedure section 2033.290 subdivision (d). Specifically, Plaintiff seeks $2875 which represents fees of $250 an hour and 11.5 hours or work in preparing and filing the motion, as well as travel to and from the hearing and time spent in the hearing itself.

Section 2033.290 subdivision (d) allows a court to impose monetary sanctions against a party who unsuccessfully makes or opposes a motion to compel further responses to RFA, unless it finds that the one subject to sanctions acted with substantial justification.

However, Plaintiff did not substantially prevail on her motion as to either C&C or the Chellinos.

Plaintiff’s request for monetary sanctions is DENIED.

B. C&C’s request

C&C’s counsel also seeks monetary sanctions against Plaintiff pursuant to section 2023.010 subdivision (h) for misuse of the discovery process. Specifically, she seeks $2530 based on an hourly rate of $190 per hour for two hours spent reviewing the motion, five hours preparing the opposition, two hours reviewing Plaintiff’s reply motion, and travel to and appearance at the hearing for the motion of four hours, for a total of 13 hours.

Section 2023.010 subdivision (h) allows a court to impose sanctions for making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery. Substantial justification means a justification that is “well-grounded in both law and fact.” (Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, 747 citing Union Mut. Life Ins. Co v. Superior Court (1978) 80 Cal.App.3d 1, 15.)

Here, counsel for C&C attests by declaration that on July 9, 2019, she advised Plaintiff through a written letter that the motion was untimely as responses to the RFA and FI in the form of objections were received on March 22, 2019. (Dec. of Kate Morrow, ¶ 11.) The letter is attached to C&C’s counsel’s declaration. (Id., Exhibit 6.) That letter lays out the facts surrounding the propounding of the RFA and FI, the resulting responses and follow up correspondences indicating that C&C had no intention of responding further. Likewise, the law is very clear that a motion to compel must be filed within 45 days of receipt of responses, otherwise it is waived. Plaintiff’s counsel also recognized that a timely motion would have been filed by May 6, 2019, as he indicated as much in his letter to C&C’s counsel on April 26, 2019. (Dec. of Mark S. Sandberg, Exhibit A.)

Based on the foregoing, Plaintiff did not file the motion to compel with substantial justification, as it was not well-grounded in either facts or law as it was untimely and could not even be considered by the Court. Furthermore, Plaintiff’s counsel did not support the motion with a declaration clearly stating the relevant dates and facts upon which the motion was made and he seems to have been aware that it was untimely.

While sanctions will be awarded, the Court does not grant anticipatory costs, such as those associated with appearing at the motion, nor does it award costs for travel to court. Therefore, C&C’s request for sanctions will be reduced to reflect seven hours of work in preparing the motion, at a rate of $190 per hours, for a total of $1330.

Consequently, C&C’s request for sanctions is GRANTED. Plaintiff shall tender the amount of $1330 payable to C&C’s counsel within 20 calendar days of service of the signed order.

The Court will prepare the order.

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