Case Number: 18STCV01616 Hearing Date: October 24, 2019 Dept: 34

Moving Party: Monique Kal McClendon, individually and as Guardian ad Litem for Justin Amoray Williams-McClendon

Resp. Party: Urban Street Properties, Inc.; Shelter First, LLC; and Robert Compean

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

The Court awards sanctions of $1,460.00 against defendants and their counsel of record.

BACKGROUND:

Monique Kal MClendon, individually and as Guardian ad Litem for Justin Amoray Williams-McClendon (jointly, “Plaintiffs”) commenced this action on October 17, 2018, against Defendants Urban Street Properties, Inc.; Shelter First LLC; and Robert Compean, individually and as Trustee of the Compean Family Trust Dated February 15, 2000 (collectively, “Defendants”).

Plaintiffs allege they were subjected to various illegal conditions that poisoned Justin Amoray Williams-McClendon during their tenancy and occupancy of real property located at 10511 South Hoover St., Los Angeles, California, 90044, a single-family residence held out for rent.

On August 22, 2019, the Court granted Plaintiffs’ motions to compel further responses to (1) request for production of documents; (2) special interrogatories; and (3) form interrogatories and Plaintiffs’ request for sanctions.

On October 1, 2019, Plaintiffs filed the instant motion to compel requests for production, set three and request for monetary sanctions.

On October 4, 2019, the Court (1) granted leave to file an amended and supplemental complaint; (2) denied Plaintiffs’ motion for sanctions; (3) granted Plaintiffs’ motion to compel production of documents pursuant to subpoenas and sanctions.

ANALYSIS:

Plaintiffs “move for an order compelling defendants Urban Street Properties, Inc., Shelter First, LLC and Robert Compean (hereinafter ‘defendants’) to provide a full and complete responses to plaintiffs’ Requests for Production, Set Three (3) (‘Motion’).” (Motion, pp. 1:26-2:3.) Plaintiffs also “move for an award of sanctions against defendants and their counsel, jointly and severally, in the amount of $1,460.00.” (Id. at p. 2:4-6.)

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

1. Motion to Compel

Plaintiffs assert that “on July 19, 2019, plaintiffs served identical sets of Requests for Production, Set Three (3) on all three (3) defendants” and “the deadline for defendants to respond was August 23, 2019” but “Defendants never served any responses to this third set of requests.” (Motion, pp. 4:28-5:3 [citing Mitcheltree Decl., ¶ 3].)

Plaintiffs explain that their “third set of production requests seeks three (3) categories of documents from defendants, who are experienced property owners and managers that own and/or manage multiple properties.” (Id. at p. 5:5-7.) Plaintiffs state that “the categories sought are 1) documents regarding any lead inspections at any property defendants own or manage, 2) documents regarding any lead abatement or containment done at any property defendants own or manage, and 3) all disclosure statements regarding the physical condition of the property given to the buyer who purchased the property from defendants after plaintiffs moved out.” (Id. at p. 5:7-11 [citing Mitcheltree Decl., ¶ 4].)

Plaintiffs argue that “this Court should compel defendants to produce the lead reports, abatement documents and lead disclosures requested in plaintiffs’ third set of requests for production” and “award plaintiffs[’] attorney’s fees and costs incurred in preparing this Motion against defendants and their counsel of record.” (Id. at p. 6:2-5.)

In opposition, Defendants argue that Plaintiffs’ motion should be denied because (1) Defendants have belatedly served responses that are in substantial compliance with Cal. Code. Civ. Proc. § 2031.210-2031.2401; (2) Defendants have agreed to produce responsive documents on or before October 18th; and (3) Defendants’ prior failure to serve objections and responses was the result of “mistake, inadvertence or excusable neglect.” (Opp., p. 1:9-16.)

Defendants assert that “while the actual requests themselves are overbroad and burdensome, prior counsel failed to timely serve objections or responses.” (Id. at p. 1:4-6.) Defendants argue that their “present counsel, Callahan and Blaine, APLC, only substituted into this matter on September 26th — merely 10 court days ago” and “since substituting into this matter, Defendants’ present counsel has worked to resolve outstanding discovery issues and prepare the matter for trial.” (Id. at p. 1:6-9.) Defendants maintain that “there was obvious mistake, inadvertence, and excusable neglect on the part of prior counsel” and prior counsel acknowledges in his declaration that (1) “his paralegal suffered an injury and was no longer able to fulfill her duties related to calendaring and deadlines” and (2) “ ‘by mistake, inadvertence, surprise and/or excusable neglect responses and objections to Plaintiffs’ Request for Production Set No. 3 were not served.’” (Id. at p. 3:11-16 [citing (Carpenter Decl., ¶ 6].)

Defendants argue that they have served compliant responses in accordance with Code of Civil Procedure section 2031.300 because “on October 10, 2019, the Nonparties served responses on the Plaintiffs to the instant set of Requests.” (Id, at p. 3:24-25.)

In reply, which was filed on October 17, 2019, Plaintiffs argue that Defendants’ opposition is meritless because “Defendants have not served responses in substantial compliance with Code of Civil Procedure, Sections 2031.210-2031.240 because they have not yet served any responsive documents on plaintiffs as of the date of this reply.” (Reply, p. 2:5-7.) Plaintiffs acknowledge that “Defendants served their untimely responses to plaintiffs’ third set of RFPs October 10, 2019” but argues that “the late responses did not comply with Code of Civil Procedure, Sections 2031.220- 2031.240.” (Id. at p. 3:4-5.) Plaintiffs explain that “the first three pages of the responses are general objections[; e]ach individual response contains another 15 lines of objections[; and a]fter all these objections, defendants agree to produce responsive documents.” (Id. at p. 3:6-8.) Plaintiffs argue that despite the responses of objections, “defendants have not yet served responsive documents on plaintiffs as of the date of this reply” and thus “have not served code-compliant responses.” (Id. at p. 3:8-10.)

The Court finds that Plaintiffs are entitled to an order compelling compliance with their requests for production of documents, set three because Defendants have failed to produce documents responsive to these discovery requests.

The Court GRANTS Plaintiffs’ motion to compel requests for production, set three.

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).)

Plaintiffs seek sanctions against Defendants and their counsel, jointly and severally, in the amount of $1,460.00 for Defendants’ discovery misconduct. (Motion, pp. 7:27, 8:11-14 [citing Mitcheltree Decl., ¶¶ 7-9].) Plaintiffs note that “this is the fifth motion to compel plaintiffs have been forced to file to get the responses and documents to which they are entitled” and that “this Court has already awarded sanctions against defendants and their counsel in connection with three (3) other motions to compel, which were heard on August 22, 2019.” (Id. at p. 8:5-8.) Plaintiffs argue that “Defendants’ failure to provide responses and documents throughout the discovery process demonstrates that they are being extremely evasive and are abusing the discovery process.” (Id. at p. 8:8-10.)

Defendants assert that one of the employees of Defendant Urban Street, Gabrielle Oliveros, “has acknowledged that she was unaware of these discovery requests until she was approached by new counsel about the issue on October 1, 2019.” (Opp., p. 3:17-18.) Defendants maintain that they “were and remain willing to comply with their obligations under the law with respect to the Requests” and “Ms. Oliveros is already working to obtain and disclose responsive documents on or before October 18, 2019.” (Id. at p. 3:18-21.) Defendants argue that therefore, “the failure to respond to the Requests was the result of ‘mistake, inadvertence’ and ‘excusable neglect’ and will be cured forthwith.” (Id. at p. 3:21-22.)

Plaintiff is correct that this is the third motion to compel that the Court has granted. The fact that defendant has new counsel does not excuse its failure to respond to discovery; the fact that defendant has new counsel does not mean that Plaintiff’s counsel should not be compensated for the time she spent on this motion.

The Court awards sanctions of $1,460.00 against defendants and their counsel of record.