Case Number: BC652362 Hearing Date: January 28, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT KELLERMEYER BERGENSONS SERVICES, LLC’S MOTION TO COMPEL PLAINTIFF’S RESPONSES TO DISCOVERY REQUESTS AND MONETARY SANCTIONS; GRANTED

This action arises out of a March 16, 2015 slip and fall. On July 27, 2018, Defendant Kellermeyer Bergenson Services, LLC (“Defendant”) served Set Two of Demand for Production of Documents and Special Interrogatories. On October 10, 2018, Defendant served Set Three of Demand for Production of Documents and Special Interrogatories. (Declaration of Arsalan Ibnalnasir, ¶ 5; Exhs. 3, 4.) On November 19, 2018, after receiving no responses, defense counsel sent a letter to Plaintiff’s counsel seeking responses and apparently received no response to the letter. (Ibnalnasir Decl., ¶ 6.) Defendant then filed the Motions to compel.

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Plaintiff contends these Motions are moot, as verified responses were served on January 15, 2019, the same day Plaintiff served her Opposition to the Motions. (Declaration of Jasminder Gill, ¶ 3.) Plaintiff contends sanctions are not warranted because she is a sole practitioner with a small staff and the deadline for responses were not correctly calendared. (Gill Decl., ¶ 4.) But, Defendant argues the Motions are not moot because the responses served on January 15 are not code-compliant.

As verified responses have been served, the Motions to compel are denied as MOOT. If the responses are deficient, Defendant must meet and confer with Plaintiff and proceed with an IDC and a motion to compel further responses if the issues are not resolved.

Defendant requests sanctions. The Court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even where the requested discovery was served after the motion was filed. (Cal. Rules of Court, Rule 3.1348(a).) Plaintiff’s counsel gives no acceptable explanation for why she served the responses over four months after responses to Set Two were due and two months after responses to Set Three were due, and two months after defense counsel sent a letter about the outstanding responses. Plaintiff’s counsel’s mis-calendaring of dues dates and lack of staff does not explain why she did not ask for an extension, for example, after receiving the November 19, 2018 letter asking about the responses. Accordingly, the request for monetary sanctions is GRANTED and imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, in the reduced amount of $350.00 for two hours at defense counsel’s hourly rate of $175.00, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.