Case Number: BC651782 Hearing Date: December 27, 2018 Dept: 3

DEBORAH ANN MCNULTY,

Plaintiff(s),

vs.

GELSON’S MARKET, ET AL.,

Defendant(s).

Case No.: BC651782

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL

Dept. 3

1:30 p.m.

December 27, 2018

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.