Case Number: BC700780 Hearing Date: August 20, 2019 Dept: 4A

Motion to Compel

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On April 4, 2018, Plaintiff Michele Barnett (“Plaintiff”) filed a complaint against Defendant 22301 S. Western Avenue, LLC (“Defendant”) for negligence and premises liability. Plaintiff alleged Defendant allowed a dangerous condition on its premises – an improperly maintained staircase with dangerous tripping hazards on the steps, which resulted in injury to Plaintiff.

MOVING PARTY’S REQUEST

Defendant moves for an order compelling Plaintiff to provide verified responses, without objections, to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One), within 10 days.

Defendant also requests an award of sanctions against Plaintiff and her counsel in the amount of $1,390.00.

LEGAL STANDARD

C.C.P. §2023.030(a) provides that the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose monetary sanctions against anyone engaging in conduct that it is a misuse of the discovery process. Failing to respond or submit to an authorized method of discovery constitutes a misuse of the discovery process. (C.C.P. §2023.010(d).)

C.C.P. §2030.290 provides, as follows:

If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240.

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(b) The party propounding the interrogatories may move for an order compelling response to the interrogatories.

(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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. If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

C.C.P. §2031.300 provides, as follows:

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

(a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(b) The party making the demand may move for an order compelling response to the demand.

(c) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, 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. If a party then fails to obey the order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(d)

(1) Notwithstanding subdivision (c), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as a result of the routine, good faith operation of an electronic information system.

(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.

DISCUSSION

Defendant’s motion to compel Plaintiff to provide verified responses, without objections, to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) is denied as moot. Plaintiff served verified responses to the discovery requests on August 7, 2019, before the hearing on the instant motion. (Declaration of Smith ¶2; Exhibit 1.)

Defendant, in the reply, argues Plaintiff’s belated and evasive responses do not make the motion to compel moot. Defendant argues Plaintiff should be compelled to provide responses, without objections, to the discovery requests, and Plaintiff’s responses are deficient because they are not complete and straightforward. However, Defendant can challenge the sufficiency of Plaintiff’s responses via motions to compel further under C.C.P. §§2030.300 and 2031.310. (See Sinaiko v. Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (“Whether a particular response does resolve satisfactorily the issues raised by a motion is a matter best determined by the trial court in the exercise of its discretion, based on the circumstances of the case. In many cases involving untimely responses, the propounding party will take the motion off calendar or narrow its scope to the issue of sanctions. If the propounding party proceeds with the motion, however, the trial court has the discretion to rule on the motion. The trial court might compel responses without objection if it finds no legally valid responses have been provided to one or more interrogatories; it might deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions; it might treat the motion as one under section 2030.300 and either determine that further answers are required, or order the propounding party to ‘meet and confer’ (§ 2030.300, subd. (b)) and file a separate statement (Cal. Rules of Court, rule 3.1020(a)(2), (c)); or it might take the motion off calendar, thereby requiring the propounding party to file a motion under section 2030.300.”).)

Defendant’s request for sanctions is granted in the reduced amount of $820.00 (representing 4 hours of attorney time at $190.00 per hour, plus the $60.00 filing fee). (Declaration of Simpson ¶8.) (See C.C.P. §§2023.010(d), 2023.030(a), 2030.290(c), and 2031.300(c).) Plaintiff’s attorney, Jason Smith, declares that “Plaintiff’s counsel has not opposed Defendant’s instant discovery motions and have provided complete, straightforward responses to their propounded discovery to the best of our ability” and requests “the Court not award sanctions against Plaintiff or his counsel.” (Declaration of Smith ¶¶5-6.) However, the court may impose monetary sanctions against Plaintiff and her counsel under C.C.P. §§2023.010(d), 2023.030(a), 2030.290(c), and 2031.300(c). Plaintiff did not successfully oppose the motion. Moreover, the “court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though…the requested discovery was provided to the moving party after the motion was filed.” (CRC 3.1348(a).)

Plaintiff and her attorneys are ordered to pay Defendant sanctions in the amount of $820.00 within 30 days.

Defendant is ordered to give notice of the Court’s ruling.