Case Number: BC720131 Hearing Date: October 24, 2019 Dept: 31

DEFENDANTS’ MOTION TO COMPEL DISCOVERY IS GRANTED

Background

On September 4, 2018, Plaintiff LG Burke, Inc. file the instant action against Defendants Darren Hagen; WaterWater LLC; Full Spectrum Bottling, LLC; Nicholas Myers; the Myers Law Group; and Does 1 through 50. On July 23, 2019, Plaintiff filed the Second Amended Verified Complaint (“SAVC”). The SAVC asserts causes of action for:

Fraud – Intentional Misrepresentation;

Fraud – Fraudulent Concealment;

Breach of Contract (or Alternate Specific Performance); and

Promissory Estoppel.

Defendant Darren Hagen (hereinafter “Defendant”) filed the instant motion on September 9, 2019.

Legal Standard

For a motion to compel initial discovery responses, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, “[o]nce [a party] ‘fail[ed] to serve a timely response,’ the trial court had authority to grant [opposing party’s] motion to compel responses.” (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc. § 2030.290(a).)

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (See Code of Civil Proc., § 2025.450(g)(1).)

Discussion

Defendant moves for an order compelling complete, code-compliant, and verified responses without objections to his Requests for Production, Set One, and any and all documents responsive thereto within five (5) days of the hearing on the motion.

Defendant argues that on or about April 15, 2019, Defendant propounded an initial set of discovery via U.S. Mail to Plaintiff’s counsel, including Defendant’s Requests for Production, Set One. (Burton Decl. ¶ 2-4.) Defendant asserts that accordingly, Plaintiff’s responses were due on Monday, May 20, 2019. (Burton Decl. ¶ 5.) Defendant contends that despite an extension to that deadline, Plaintiff has not provided any responses to date. (Burton Decl. ¶ 14.)

Based on the foregoing, the Court finds that Defendant properly served his discovery requests, the time to respond has expired, and Plaintiff has failed to provide a timely response. Accordingly, Defendant’s motion to compel is GRANTED.

Sanctions

Defendant seeks $1,885.00 in sanctions against Plaintiff and its counsel of record, Ralph E. Harrison II, consisting of 3.8 hours preparing the moving papers, an additional 1.5 hours anticipated to prepare a reply, and 1 hour to attend the hearing billed at a rate of $250, 2 hours of travel time billed at a rate of $125 an hour, and the $60 filing fee.

The Court finds that the amount requested is unreasonable given the relative simplicity of the motion and the lack of an opposition. Accordingly, the Court grants reduced sanctions in the amount of $810.00 for 2 hours spent preparing the moving papers and 1 hour for attendance at the hearing billed at a rate of $250 plus the $60 filing fee.

Conclusion

Defendant’s motion to compel is GRANTED. Defendant is ordered to provide complete, code-compliant, and verified responses without objections to Defendant’s Requests for Production, Set One, and any and all documents responsive thereto within five (5) days of this order. Plaintiff and its counsel of record, Ralph E. Harrison II, are ordered to pay sanctions in the amount of $810 to Defendant within thirty (30) days.

Moving party to give notice.