Case Number: BC711621 Hearing Date: January 04, 2019 Dept: 3

DIMITRIOS KATSAFADOS,

Plaintiff(s),

vs.

PETER WOODS, ET AL.,

Defendant(s).

CASE NO: BC711621

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTIONS TO COMPEL RESPONSES AND DEEM RFAs ADMITTED; IMPOSING SANCTIONS

Dept. 3

1:30 p.m.

January 4, 2019

Plaintiff propounded discovery on Defendant, Wagner Spray Tech Corporation on 7/16/18. At that time, Defendant was not represented by an attorney. Defendant retained an attorney, and on 9/20/18, Plaintiff’s attorney sent a meet and confer letter and included copies of the discovery. As of the filing of the moving papers, on 11/20/18, Defendant had not served responses. Plaintiff therefore filed these motions to compel, seeking an order compelling Defendant to respond, without objections, to the outstanding discovery, to deem the RFAs admitted and to pay sanctions.

On 12/20/18, Defendant timely filed opposition to the motions. Defendant indicates responses have been served, rendering the motions substantively moot, and asks the Court not to impose sanctions. On 12/27/18, Plaintiff filed reply papers; Plaintiff concedes Defendant served responses, but asks the Court to grant the motions and impose sanctions.

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. Defendant did not attach its responses to its opposition papers. It is unclear whether its responses to interrogatories and RPDs were without objections. Defendant is ordered to serve verified responses, without objections, to the interrogatories and RPDs, within ten days. To the extent the responses already served were without objections, they need not be re-served.

It is clear that Defendant’s responses to RFAs included objections, as Defendant indicates, in opposition to the motion, that it seeks relief from its waiver of objections. CCP §2033.280(a) permits the Court, “on motion,” to grant relief from a waiver of objections. Defendant did not file a motion for relief, and therefore the Court cannot grant such relief. CCP §2033.280(c) requires the Court to grant a motion to deem RFAs admitted unless the responding party serves responses in substantial compliance with the Code prior to the hearing. Responses including objections which have been waived are not in substantial compliance with the Code. Plaintiff’s motion to deem RFAs admitted will also be granted unless Defendant serves proper responses (without objections) prior to the hearing. CCP §2033.280(b).

The Court must also decide whether to impose sanctions. Sanctions are mandatory unless Defendant shows good cause or substantial justification to avoid imposition of sanctions. §§2030.290(c), 2031.300(c). Additionally, with respect to the RFAs, sanctions are absolutely mandatory. §2033.280(c).

Defendant explains that responses were not timely served because Plaintiff propounded the subject discovery on Defendant before it retained an attorney, and Defendant believed everything served on it personally would be provided to its attorney. Even if this is true, Defendant concedes it served responses on 11/20/18, two months after Plaintiff provided courtesy copies of the discovery to its attorney. Responses are due within thirty days; thus, even if the Court calculates the time from the date Plaintiff served courtesy copies, the responses were not timely. Defendant fails to indicate why, and fails to indicate it communicated any need for additional time to Plaintiff. Moreover, the responses included objections even though they were waived, at least as to the RFAs. Sanctions are therefore appropriate.

The Court agrees with Defendant, however, that the amount of sanctions sought is excessive. Plaintiff seeks sanctions in the whopping amount of $14,940 in connection with these four basic discovery motions. The Court reduces Plaintiff’s attorney’s billing rate from $350/hour to $250/hour. The Court awards one hour to meet and confer, one hour to prepare each discovery motion, one hour to prepare the reply, and three hours to appear. The Court therefore awards a total of nine hours at $250/hour, or $2250 in attorneys’ fees. The Court awards four filing fees of $60 each, or $240 in costs.

Sanctions are sought and imposed against Defendant and its attorney of record, jointly and severally. They are ordered to pay sanctions to Plaintiff, by and through his attorney of record, in the total amount of $2490, within twenty days.

Plaintiff is ordered to give notice.