Case Number: BC676883 Hearing Date: November 04, 2019 Dept: 34

SUBJECT: (1) Motion to Compel Veritas RS Production of Documents

(2) Motion to Compel Veritas RS Form Interrogatories

(3) Motion to Compel Trader Boys Production of Documents

(4) Motion to Compel Trader Boys Form Interrogatories

(5) Motion to Compel Melissa Rayner Production of Documents

Moving Party: Cross-Defendant Bali Construction, Inc.

Resp. Party: None

The motion to compel Veritas RS responses to request for production of documents is GRANTED.

The motion to compel Veritas RS responses to form interrogatories is GRANTED.

The motion to compel Trader Boys responses to request for production of documents is GRANTED.

The motion to compel Trader Boys responses to form interrogatories is GRANTED.

The motion to compel Melissa Rayner responses to production of documents is GRANTED.

Bali’s requests for monetary sanctions are GRANTED in the amount of $210.00 per motion.

PRELIMINARY COMMENTS:

1. The Court is always concerned when a motion is unopposed. In this case, Bali is moving to compel discovery against the three plaintiffs, Veritas RS, Trader Boys and Melissa Rayner. None of the cross-defendants have filed an opposition. If the plaintiffs opposed these motions, they should have filed oppositions. If plaintiffs agreed that responses were required, they should have simply filed the responses, and saved the Court and counsel the expense of this motion.

2. Each of the 5 motions are substantially the same, so this write-up cites to the Motion to Compel Response to Demand for Production, as to Veritas RS.

BACKGROUND:

On September 21, 2017, Plaintiffs Melissa Rayner, Trader Boys, Inc., and Veritas RS, LLC commenced this action against Los Angeles County Metro Transportation Authority for general negligence and property damages.

Plaintiffs allege that “On or about May 1, 2017, Plaintiff discovered that as a result of construction by the Defendant of the Expo Line, specifically the construction of the elevated railroad tracks north of Plaintiff’s property at 11535 W. Pico Blvd., Los Angeles, CA 90064 and Plaintiff’s adjacent property, where trenches were dug that caused the natural level of the water table to divert to the foundation at the Plaintiff’s property causing cracking of the foundation and water seeping into the cracks, which then caused the structural damage to Plaintiff’s property’s foundation and other structural elements throughout the property, resulting in damages, which cost of repair is in excess of $250,000.00.” (Complaint, Attachment, p. 1.)

On January 12, 2018, Los Angeles County Metro Transportation Authority filed a cross-complaint against ROES 1-10 for implied indemnity, contribution, declaratory relief, and express contractual indemnity.

On January 15, 2019, Los Angeles County Metro Transportation Authority filed amendments to the cross-complaint, naming Bali Construction, Inc. and Farwest Corrosion Control Company as cross-defendants.

On February 28, 2019, Bali Construction, Inc. filed a cross-complaint against MOES 1-500 for (1) total equitable indemnity; (2) partial equitable indemnity; (3) contribution and repayment; and (4) declaratory relief.

On March 8, 2019, Los Angeles County Metro Transportation Authority filed an amendment to the complaint, naming Crimson Pipeline as a cross-defendant.

On April 2, 2019, Farwest Corrosion Control Company filed a cross-complaint against Los Angeles County Metro Transportation Authority and Valley Construction for (1) equitable indemnity; (2) contribution; and (3) declaratory relief.

On April 12, 2019, Farwest Corrosion Control Company dismissed Valley Construction with prejudice from its cross-complaint.

On October 1, 2019, Bali Construction, Inc. filed the following motions before the Court: (1) motion to compel Veritas RS response to request for production; (2) motion to compel Veritas RS response to interrogatories; (3) motion to compel Trader Boys response to request for production; (4) motion to compel Trader Boys response to interrogatories; and (5) motion to compel Melissa Rayner’s response to request for production.

ANALYSIS:

A. Relevant Law

California Code of Civil Procedure requires a response from the party to whom requests for production are propounded within 30 days after service of the requests. (Code Civ. Proc., § 2031.260(a).) If a party fails to serve timely responses, “the party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc. § 2031.300(b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc. § 2031.300(a).)

For a motion to compel, 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.)

B. Discussion

Cross-Defendant Bali Construction, Inc. (“Bali”) moves the Court for an order compelling Plaintiffs Veritas RS, Trader Boys, and Melissa Rayner’s responses, without objections, to the Demand for the Production of Documents that were served on July 19, 2019, and an order compelling Plaintiffs Veritas RS and Trader Boys’ responses, without objections, to the Form Interrogatories that were served on July 19, 2019. (Motion to Compel Veritas RS Response to Demand for Production, p. 2:3-6.)

Bali requests that the Court impose monetary sanctions in the amount of (1) $560.00 against Plaintiff Veritas RS LLC and its attorney of record John V. Gaule, Esq. for the motion to compel response to demand for production; (2) $560.00 against Plaintiff Veritas RS LLC and its attorney of record John V. Gaule, Esq. for the motion to compel response to form interrogatories; (3) $560.00 against Plaintiff Trader Boys and its attorney of record John V. Gaule, Esq. for the motion to compel response to demand for production; (4) $560.00 against Plaintiff Trade Boys and its attorney of record John V. Gaule, Esq. for the motion to compel response to form interrogatories; and (5) 1) $560.00 against Plaintiff Melissa Rayner and her attorney of record John V. Gaule, Esq. for the motion to compel response to demand for production. (Id. at p. 2:7-9.)

1. Motions to Compel

Bali explains that on or about July 19, 2019, it propounded discovery on Plaintiffs Veritas RS LLC, Trade Boys, and Melissa Rayner, which included Form Interrogatories and Demand for Production of Documents. (Id. at p. 3:22-24.) Bali asserts that “to date, Plaintiff[s] ha[ve] not yet responded to the discovery, nor has there been any communication from Plaintiff[s’] counsel regarding the discovery.” (Id. at p. 4:3-4.)

These motions are unopposed and the Court finds that Bali is entitled to an order compelling compliance with its requests for production of documents and form interrogatories because Plaintiffs have failed to respond to these discovery requests.

The Court GRANTS Bali’s: (1) motion to compel Veritas RS response to request for production; (2) motion to compel Veritas RS response to interrogatories; (3) motion to compel Trader Boys response to request for production; (4) motion to compel Trader Boys response to interrogatories; and (5) motion to compel Melissa Rayner’s response to request for production.

2. Sanctions

Code of Civil Procedure section 2023.010(d) provides for sanctions for misuses of the discovery process, including failing to respond to or submit an authorized method of discovery. Code of Civil Procedure section 2023.030(a) provides:

“The 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. 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.” (Code of Civ. Proc., § 2023.030(a).)

Bali requests that the Court impose monetary sanctions in the amount of (1) $560.00 against Plaintiff Veritas RS LLC and its attorney of record John V. Gaule, Esq. for the motion to compel response to demand for production; (2) $560.00 against Plaintiff Veritas RS LLC and its attorney of record John V. Gaule, Esq. for the motion to compel response to form interrogatories; (3) $560.00 against Plaintiff Trader Boys and its attorney of record John V. Gaule, Esq. for the motion to compel response to demand for production; (4) $560.00 against Plaintiff Trade Boys and its attorney of record John V. Gaule, Esq. for the motion to compel response to form interrogatories; and (5) 1) $560.00 against Plaintiff Melissa Rayner and her attorney of record John V. Gaule, Esq. for the motion to compel response to demand for production. (Motion to Compel Veritas RS Response to Demand for Production p. 2:7-9.) Bali’s counsel declares that her “office is requesting a total of $500.00 for the preparation of, travel time to, and attending the hearing on th[ese] motion[s]” and an additional $60.00 for the filing fee for each motion. (Lawrence Decl., ¶ 6.)

Because this motion is unopposed, the Plaintiffs have not demonstrated to the Court that they acted with substantial justification in not responding to these discovery requests or demonstrated that other circumstances make the imposition of sanctions unjust.

Nonetheless, the amount requested is excessive. Bali is requesting the same $560.00 for each of the five motions to compel. As indicated above, counsel “is requesting a total of $500.00 for the preparation of, travel time to, and attending the hearing on th[ese] motion[s]” and an additional $60.00 for the filing fee for each motion. (Lawrence Decl., ¶ 6.) There are at least four problems with the amount requested. First, there is no breakdown as to the amount of time spent preparing the motions and the amount of time requested for travel time. Second, counsel does not even indicate her hourly rate. Third, all of the motions were form, boiler-plate motions, that could not have taken counsel more than one-half hour to prepare. Lastly, since counsel will be only making one trip for the five motions, granting sanctions for travel time for each of the five motions would be, to coin a term, quintiplicative.

The Court GRANTS Bali’s request for monetary sanctions in the amount of: (1) $210.00 against Plaintiff Veritas RS LLC and its attorney of record John V. Gaule, Esq. for the motion to compel response to demand for production; (2) $210.00 against Plaintiff Veritas RS LLC and its attorney of record John V. Gaule, Esq. for the motion to compel response to form interrogatories; (3) $210.00 against Plaintiff Trader Boys and its attorney of record John V. Gaule, Esq. for the motion to compel response to demand for production; (4) $210.00 against Plaintiff Trade Boys and its attorney of record John V. Gaule, Esq. for the motion to compel response to form interrogatories; and (5) $210.00 against Plaintiff Melissa Rayner and her attorney of record John V. Gaule, Esq. for the motion to compel response to demand for production. Each of the above sanctions includes $60.00 for the filing fee for each motion.