Case Number: BC651782 Hearing Date: January 15, 2019 Dept: 3

DEBORAH ANN MCNULTY,

Plaintiff(s),

vs.

GELSON’S MARKET, ET AL.,

Defendant(s).

Case No.: BC651782

[TENTATIVE] ORDER GRANTING MOTIONS TO COMPEL

Dept. 3

1:30 p.m.

January 15, 2019

1. 12/27/18 Hearing

Defendant originally set the hearing on its motions to compel on 12/27/18. Prior to the hearing, the Court issued the following tentative ruling:

Defendant propounded form interrogatories, special interrogatories, and RPDs on Plaintiff on 8/20/18. Defendant sent a meet and confer letter on 10/22/18. Defendant filed this motion to compel on 11/13/18, contending Plaintiff had not served responses to the discovery, seeking an order compelling her to do so, and seeking imposition of monetary sanctions.

On 12/13/18, Plaintiff filed timely opposition to the motion to compel. Plaintiff’s attorney explains that Plaintiff is a flight attendant and often difficult to contact. He states that responses will be served prior to the hearing.

Pursuant to Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404-06, untimely responses served prior to the hearing do not render motions to compel moot. To the extent Plaintiff has not already done so, she is ordered to serve verified responses, without objections, to the outstanding discovery within ten days.

The remaining issue is whether sanctions should be imposed. Plaintiff argues (a) the notice of motion is insufficient in this regard, (b) no sanctions should be imposed on Plaintiff’s attorney, who did nothing wrong, and (c) the amount of sanctions sought is excessive.

Plaintiff relies on CCP §2023.040 to argue that the notice of motion is insufficient. Plaintiff confuses, however, the “caption” of the motion with the “notice of motion.” Defendant’s notice of motion clearly states that Defendant seeks imposition of sanctions against Plaintiff in the amount of $585. Notice of motion, page 2, lines 12-14.

Plaintiff next argues Plaintiff’s attorney should not be sanctioned because he did nothing wrong. The notice of motion ONLY seeks imposition of sanctions against Plaintiff, and not against her attorney of record. The Court therefore cannot impose sanctions on Plaintiff’s attorney.

Plaintiff’s final argument is that the amount of sanctions sought is excessive. Defense Counsel seeks to recover three hours of time for preparing the moving papers at $175/hour, plus a $60 filing fee. The Court agrees that three hours to prepare a form motion to compel is excessive. The Court reduces the amount to two hours. Notably, Defense Counsel does not seek to recover time for the appearance at the hearing on the motion, so none is awarded.

Plaintiff is ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $410, within twenty days.

Defendant is ordered to give notice.

Defendant did not take the hearing on the motions off calendar. Defendant failed, however, to submit on the tentative or appear at the hearing. The Court therefore took the motions off calendar due to nonappearance.

2. Instant Motions

On 12/13/18, the same day Plaintiff filed opposition to the prior motions to compel, Defendant filed these motions to compel. These motions are also based on Plaintiff’s failure to respond to the 8/20/18 discovery (form interrogatories, special interrogatories, and RPDs) that was at issue in the prior motions. Defense Counsel declares that, as of the date of the filing of the motions, Plaintiff had not responded to the discovery.

Opposition to the motions was due on or before 1/02/19. The Court has not received opposition to the motions. In light of the lack of opposition, the motions to compel are granted. Plaintiff is ordered to serve verified responses to form interrogatories, special interrogatories, and RPDs, without objections, within ten days. CCP §§2030.290(a),(b), 2031.300(a),(b).

Sanctions are mandatory. §§2030.290(c), 2031.300(c). Defendant’s requests for sanctions are confusing in two main regards. First, in the motions concerning form interrogatories and special interrogatories, the notices of motion include requests for $410 and also $585 in sanctions. The motion concerning RPDs seeks only $410 in sanctions. The declarations in support of the motions indicate $410 in attorneys’ fees were incurred in connection with each motion. Second, each of the captions indicates sanctions are sought against Plaintiff and/or her attorney of record. The notices of motion, however, seek sanctions against Plaintiff only, and not against her attorney of record.

Counsel declares he bills at the rate of $175/hour. He declares he billed two hours to prepare each motion to compel. The Court finds one hour to draft form discovery motions is reasonable, and therefore awards one hour to prepare each motion. No time for appearance is sought, and none is imposed. The Court therefore awards a total of three hours of attorney time at the rate of $175/hour, or $525 in attorneys’ fees. The Court also awards three filing fees of $60 each, or $180 in costs.

Because the notices of motion seek imposition of sanctions against Plaintiff only, the Court awards the sanctions against Plaintiff only and not against her attorney of record. CCP §2023.040 requires the notice of motion (as opposed to the caption) to indicate each party and/or attorney against whom sanctions are sought. Plaintiff is ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $705, within twenty days.

Defendant is ordered to give notice.