Case Number: BC661305 Hearing Date: May 01, 2019 Dept: 4A

Motions to Compel Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One)

The Court considered the moving papers. No opposition was filed.

BACKGROUND

On May 15, 2017, Plaintiffs Shirley Young, Frank Young, and Estate of Eric Young (“Plaintiffs”) filed a complaint against Defendants Mark Gabay, Arman Gabay, Charles Company, M Gabay Construction and Development Corp., and Gabay Enterprises, Inc. (“Defendants”). The complaint alleges negligence; negligence per se; wrongful death; survival action; premises liability; negligent hiring, training, supervision, and retention; and breach of warranties of habitability, fitness for residential occupation, and violation of Civil Code section 1941.1. The complaint arises out of the death of Eric Young due to a May 19, 2015 fire.

On July 9, 2017, Plaintiffs filed a First Amended Complaint to allege a violation of Labor Code section 3706.

On February 15, 2019, Defendants Mark Gabay, Arman Gabay, and Charles Company (“Moving Defendants”) filed a motion to compel Plaintiffs’ responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One).

On April 17, 2019, the Court continued the hearing on the February 15, 2019 filed motion to compel to May 1, 2019 to permit Plaintiffs to file an opposition by April 19, 2019. Plaintiffs failed to file any opposition, however.

Trial is set for September 19, 2019.

PARTY’S REQUESTS

Moving Defendants request that the Court issue an order compelling Plaintiffs to provide responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One).

Moving Defendants also request the court to impose sanctions of $2,475.00 against Plaintiffs for their fees and expenses in bringing this motion.

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.¿¿(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.

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¿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).)¿

California Rules of Court, rule 3.1348, subdivision (a) states:¿“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”¿¿

DISCUSSION

On September 24, 2018, Moving Defendants served Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One) on each of the plaintiffs, Plaintiffs Shirley Young, Frank Young, and Estate of Eric Young. (Camerlengo Decl., ¶¶ 2-4, Exh. A-C.) Moving Defendants have asked Plaintiffs’ counsel for the outstanding responses on four separate occasions. (Camerlengo Decl., ¶¶ 10, 12-14, Exh. D, F-H.) Moving Defendants have not received the outstanding discovery responses to date. (Camerlengo Decl., ¶¶ 9, 15-16.)

Moving Defendant projected a total of $2,475.00 in monetary sanctions to cover four hours to prepare this motion, one and a half hours for reviewing an opposition and preparing a reply, six hours for travelling to and appearing at the hearing, and one $60.00 filing fee. (Camerlengo Decl., ¶ 18.) Moving Defendant requested $2,265.00 in the conclusion of their motion, but the Court finds this to be a clerical error as the notice of the motion, the sanctions section of the argument of the motion, and the declaration all request $2,475.00 in monetary sanctions.

Nevertheless, the Court finds $2,475.00 in monetary sanctions to be unreasonable. The Court finds $1,320.00 ($210/hr. x 6 hrs. plus one $60.00 filing fee) to be a reasonable amount of sanctions to be imposed against Plaintiffs and their counsel of record, jointly and severally for this motion.

Moving Defendants’ motion is GRANTED IN PART and DENIED IN PART.

The Court orders each Plaintiff to provide verified responses, without objections, to Moving Defendants’ Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One) within 20 days of this order.

The Court also orders Plaintiffs and their counsel of record to pay Moving Defendants $1,320.00, jointly and severally, within 30 days of this order.

Moving Defendants are ordered to give notice of this ruling.