Case Number: BC625899 Hearing Date: November 26, 2019 Dept: 4A

Motion to Compel Responses to Form Interrogatories, Special Interrogatories, Request for Production (All Set One); Motion to Deem Matters in Request for Admissions (Set One) as True

Having considered the moving and opposing papers, the Court rules as follows. No reply papers were filed.

BACKGROUND

On July 1, 2016, Plaintiff Kisean Anderson (“Plaintiff”) filed a complaint against Defendant Penthouse Nightclub & Day Club alleging assault, battery, and negligent hiring, supervision, and retention for an altercation that occurred on June 12, 2016.

On April 10, 2018, Plaintiff amended his complaint to name Defendant Aegis Security & Investigations Inc. as Doe 2 and Defendant SKWS Enterprises, Inc. as Doe 3.

On August 9, 2018, Defendant/Cross-Complainant Aegis Security & Investigations Inc. filed a cross-complaint against Defendant/Cross-Defendant SKWS Enterprises, Inc. for indemnity, apportionment, contribution, and declaratory relief.

On January 11, 2019, Defendant/Cross-Complainant Aegis Security & Investigations Inc. was dismissed as a defendant with prejudice.

On May 3, 2019, Defendant/Cross-Defendant/Cross-Complainant SKWS Enterprises, Inc. filed a cross-complaint against Cross-Defendant ATF Private Security, Inc. seeking equitable indemnity, apportionment, comparative negligence, and declaratory relief.

On July 17, 2019, Plaintiff filed an amendment to his complaint naming Cross-Defendant/Defendant Crystal Tarin dba ATF Private Security (erroneously sued as ATF Private Security, Inc.)

On October 23, 2019, Cross-Defendant/Defendant Crystal Tarin filed motions to compel Plaintiff to provide verified responses without objections to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) and a motion to deem the matters in Request for Admissions (Set One) as true against Plaintiff. These motions were filed pursuant to California Code of Civil Procedure sections 2030.290, 2031.300, and 2033.280.

Trial is set for June 9, 2020.

PARTY’S REQUESTS

Cross-Defendant/Defendant Crystal Tarin (“Moving Party”) asks the Court to compel Plaintiff to provide verified responses without objections to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) due to Plaintiff’s failure to provide timely verified responses.

Moving Party also asks the Court to deem the matters within Request for Admissions (Set One) as true against Plaintiff due to Plaintiff’s failure to provide timely verified responses.

Moving Party further asks the Court to impose monetary sanctions of $2,812.50 against Plaintiff and his counsel of record for their abuse of the discovery process.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc. § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc. § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc. § 2031.300, subd. (a).) Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a “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 under Chapter 7 (commencing with section 2023.010).” The court “shall” grant the motion to deem requests for admission admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc. § 2033.280, subd. (c).)

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he 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 any provision of this title, the court shall impose that sanction 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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010.)

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true and motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)

DISCUSSION

Procedural Ruling

Plaintiff filed his oppositions on November 14, 2019. The oppositions were due to be filed on November 13, 2019 pursuant to California Code of Civil Procedure section 1005, subdivision (b). There are no proofs of service attached to these oppositions.

The Court is willing to continue the hearing on these motions at Moving Party’s request for Moving Party to have additional time to file a reply. If Moving Party does not elect a continuance, the Court provides the substantive ruling to the motions below.

Substantive Ruling

On August 14, 2019, Moving Party served Form Interrogatories, Request for Production, and Request for Admission (All Set One) on Plaintiff by U.S. mail. (All Three Declarations of Zubin Farinpour (“Farinpour Decl.”), ¶ 2, Exh. A.) Moving Party gave one extension to provide verified responses by October 8, 2019. (Farinpour Decl., ¶¶ 4, Exh. C-D.) Plaintiff had failed to provide the outstanding responses as of the signing of Zubin Farinpour’s declarations on October 23, 2019. (Farinpour Decl., ¶ 5.) The motions are therefore properly granted.

Plaintiff’s counsel argues it acted with substantial justification because Plaintiff’s counsel was experiencing mail theft from approximately August 20, 2019 to September 5, 2019. (Oppositions, p. 2:8-2:11.) This is not a substantial justification. Plaintiff was provided an extension to provide the responses by October 8, 2019. As Plaintiff admits, he was provided the written discovery requests after asking Moving Party for them. (Oppositions, p. 2:12-2:14.) Thus, Plaintiff had another opportunity to provide the responses, but failed to do so without any observable justification.

Moving Party’s request for $2,812.50 in sanctions consists of six hours in drafting the moving papers, four and a half hours in drafting the replying papers, and three hours in appearing at the hearings at a rate of $195 an hour, plus three $60 filing fees. The Court finds this to be unreasonable. The moving and replying papers are straight-forward and nearly identical. Rather, the Court finds $1,155 ($195/hr. x 5 hrs. plus three $60 filing fees) to be a reasonable amount of sanctions to be imposed against Plaintiff and his counsel of record for their abuse of the discovery process.

Therefore, the motions are GRANTED.

Plaintiff is ordered to serve verified responses without objections to Moving Party’s Form Interrogatories, Special Interrogatories, and Request for Production (Set One) within 20 days of this ruling.

The Court deems the matters within Moving Party’s Request for Admissions (Set One) to be true against Plaintiff.

Plaintiff and his counsel of record are ordered to pay Moving Party $1,155, jointly and severally, within 30 days of this ruling.

Moving Party is ordered to give notice of this ruling.