Dunkelis v. B&D Insulation

This motion is based upon Plaintiff’s declaration to establish that Plaintiff served Defendant Cox with the subject discovery and that no responses have been provided. Plaintiff’s declaration is deficient as it does not make the statements under penalty of perjury. However, Plaintiff’s declaration attached to her motion to compel defendant D&B Insulation to provide responses to 2

Plaintiff’s Special Interrogatories, Set One, and Requests for Production of Documents, Set One, (“Motion #2”) is sufficient to establish Defendant Cox was served with Plaintiff’s General Interrogatories and Special Interrogatories, Set One. On December 6, 2025, Plaintiff served Defendant Cox with Plaintiff’s Special Interrogatories, Set One, and General Interrogatories. (Motion #2, Dunkelis decl., ¶2, Exhibit A.) Plaintiff states she mailed a follow-up letter on January 20, 2026. (Dunkelis decl., ¶4.)

Despite meet and confer efforts, which are not required on a motion to compel responses, no responses have been provided. (Id., ¶4.) 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. (See Leach v. Sup.Ct. (Markum) (1980) 111 Cal. App. 3d 902, 905-906; CRC 3.1345(b).) Here, Plaintiff has established she served Defendant Cox with her General Interrogatories, aka Form Interrogatories, and Special Interrogatories, Set One.

While Plaintiff’s declaration stating that no responses have been made is deficient as it is not made under penalty of perjury, based upon Plaintiff’s declarations attached to her other motions, this court may find that Defendant Cox has failed to respond to any of Plaintiff’s discovery requests. III. Sanctions Sanctions are mandatory unless this court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP section 2030.290(c).)

Defendant Cox has not filed opposition. Therefore, he has not shown substantial justification for failing to respond to Plaintiff’s discovery requests. A pro se litigant may recover any reasonable expenses incurred, including photocopying, computer-assisted legal research, and other identifiable and allocable costs. (Kravitz v. Superior Court (2001) 91 Cal. App. 4th 1015, 1017.) In her declaration, Plaintiff identifies $20 for serving the motion, $6.57 in photocopy expenses; and $60 for the motion fee.

The time Plaintiff spent to prepare the motion is not recoverable. Sanctions are ordered in the amount of $86.57. IV.

Conclusion

The motion is GRANTED. Defendant David Bryan Cox is ordered to provide responses, without objections, to Plaintiff’s General Interrogatories and Special Interrogatories, Set One, served upon Defendant Cox on December 6, 2025, within 20 days of the service of the order granting this motion. Plaintiff is directed to submit a written order to the court consistent with this ruling.

I. Introduction - Motion to Compel Responses - Defendant D&B (Motion #2) Plaintiff Diana Dunkelis (“Plaintiff”) moves for an order compelling Defendant D&B Insulation (“Defendant D&B”) to serve verified responses, without objections, to Plaintiff’s Special Interrogatories, Set One, and Requests for Production of Documents, Set One. Pursuant to Code of Civil Procedure, sections 2023.010 and 2023.030, Plaintiff seeks sanctions in the amount of $630.24. In addition, pursuant to Code of Civil Procedure sections 2023.040 and 2023.050, Plaintiff seeks additional sanctions in the amount of $1,000. II. Service and Failure to Respond If a party to whom interrogatories or requests for production of documents are directed fails to respond, the propounding party's remedy is to seek a court order compelling a response. (CCP sections 2030.290, 2031.300.)

On December 6, 2025, Plaintiff served Defendant D&B with Plaintiff’s Special Interrogatories, Set One, and Request for Production of Documents, Set One. (Dunkelis decl., ¶2, Exhibit A.) Defendant D&B has not provided responses. (Id., ¶4.) III. Sanctions Plaintiff requests sanctions pursuant to CCP sections 2023.010 and 2023.030 in the amount of $630.24. This amount is based upon time spent preparing the motion and for the possibility that Plaintiff will have to attend the hearing, for the cost of filing and serving this motion, and for photocopying expenses.

As a pro se plaintiff, Plaintiff is not entitled to recover monetary sanctions for the time spent preparing this motion. Sanctions are granted in the amount of $89.02. Plaintiff also requests sanctions pursuant to CCP section 2023.040 and 2023.050 in the amount of $1,000. CCP section 2023.040 requires a Notice of Motion to identify the amount of sanctions sought and the party against whom the sanctions are sought. CCP section 2023.050 provides, in relevant part: “Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a onethousand-dollar ($1,000) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:

“(1) The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.” ... “(3) The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.” ... “(c) The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” ... “(e) For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.”

Here, it is not clear if Defendant D&B is a limited liability company or if defendant David Bryan Cox is doing business as D&B Insulation. While Plaintiff’s papers identify Defendant D&B as “D&B Insulation, LLC,” the company’s name on the work proposal included with Plaintiff’s motion to deem admissions admitted only identifies the company as “D&B Insulation.” In addition, Plaintiff asserts that Defendant Cox is the sole proprietor of Defendant D&B, and Defendant Cox’s answer does not use the term “LLC” to identify Defendant D&B.

Therefore, this court is inclined to believe that Defendant Cox is dba Defendant B&D. Defendant Cox dba Defendant D&B is not represented by an attorney. As such, the presumption exists that Defendant Cox dba Defendant D&B acted in good faith in failing to respond to Plaintiff’s discovery requests. While Plaintiff has established that Defendant Cox dba Defendant D&B failed to respond and has made no effort to call, text, or communicate in writing regarding the discovery, she has not provided evidence 4

regarding why Defendant Cox failed to respond. Therefore, she has failed to provide clear and convincing evidence to overcome the presumption that Defendant Cox acted in good faith. IV.

Conclusion

The motion is GRANTED. Defendant D&B Insulation is directed to provide responses, without objections, to Plaintiff’s Special Interrogatories, Set One, and Request for Production of Documents, Set One, served on December 6, 2025, within 20 days of the service of the order granting this motion. Sanctions are granted in the amount of $89.02. Plaintiff is directed to submit a written order to the court consistent with this ruling.

I. Introduction - Motion to Deem Admissions Admitted (Motion #3) Plaintiff Diana Dunkelis (“Plaintiff”) moves for an order deeming the truth of all requests for admissions and the genuineness of all specified documents in Plaintiff’s Request for Admissions, Set One, served upon Defendant D&B Insulation (“Defendant D&B”) on December 6, 2025, be admitted. Plaintiff requests sanctions in the amount of $399.50. II. Service and Failure to Respond If a party fails to respond to Requests for Admissions, the propounder may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (CCP section 2033.280(b).)

On December 6, 2025, Plaintiff served Defendant B&D with Plaintiff’s Request for Admissions, Set One. (Dunkelis decl., ¶2, Exhibit A.) Plaintiff has not received a response. (Id., ¶4.) III. Sanctions Plaintiff requests sanctions in the amount of $399.50. This is based upon time spent preparing the motion, for the cost of filing and serving this motion, and for photocopying expenses. As a pro se plaintiff, Plaintiff is not entitled to recover monetary sanctions for the time spent on this motion.

Sanctions are granted in the amount of $99.50. IV.

Conclusion

Unless Defendant B&D Insulation serves responses to Plaintiff’s Request for Admissions, Set One, before the hearing on this motion, the motion will be granted and Plaintiff’s Request for Admissions, Set One, will be deemed admitted. Sanctions are granted in the amount of $99.50. Plaintiff is directed to submit a written order to the court consistent with this ruling.

4. 25CV05871, Coleman v. Mercedes-Benz USA, LLC.

(TENTATIVE ISSUED BY HON. JANE GASKELL)

IF ORAL ARGUMENT IS REQUESTED, MATTER WILL BE HEARD IN DEPT.

17. PLEASE USE DEPT. 17’S ZOOM LOGIN INFORMATION (SEE BOTTOM OF PAGE).

Defendant Mercedes-Benz of Santa Rosa (“Defendant”) moves for judgment on the pleadings on Plaintiff Dominic Monte Coleman’s (“Plaintiff’s”) third cause of action for negligent repair on the grounds that it fails to allege facts sufficient to constitute a cause of action. I. Complaint On August 27, 2025, Plaintiff filed his complaint against Defendant and others based upon his purchase of a 2025 Mercedes-Benz E-Class (“Subject Vehicle”). The causes of action arise out of the alleged warranty and repair obligations of the Subject Vehicle. Only one cause of action is alleged against Defendant: the third cause of action for Negligent Repair. That cause of action 5

alleges Plaintiff delivered the Subject Vehicle to Defendant for repairs on numerous occasions. Plaintiff alleges Defendant breached its duty to Plaintiff to use ordinary care and skill in storage, preparation, and repair of the Subject Vehicle in accordance with industry standards. II. Injury and Economic Loss Rule Defendant first argues that Plaintiff’s claim fails because Plaintiff must assert damage to a person or property other than the product itself. Defendant cites the portion of federal cases that discuss the economic loss rule.

In Sabicer v. Ford Motor Company (C.D. Cal. 2019) 362 F.Supp.3d 837, the defendants failed to meet their burden to establish that the plaintiffs failed to state a cause of action against Santa Margarita Ford for negligent repair. (Id., at p. 840.) The court stated: “One who undertakes repairs has a duty arising in tort to do them without negligence.” (Id., at p. 840-841.) “In support of their negligent repair claim, Plaintiffs allege that they took their Vehicle to Santa Margarita Ford on at least one occasion. [Citation.]

They further allege that Santa Margarita Ford owed them a duty to use ordinary care and skill in the storage, preparation, and repair of their Vehicle and that Santa Margarita Ford breached this duty by failing to properly store, prepare, and repair the Vehicle. [Citation.] They allege this breach was a proximate cause of their damages. [Citation.]” (Id., at p. 841.) These are essentially the same allegations as in the instant complaint. The Sabicer defendants also failed to show that the economic loss rule barred that plaintiff’s negligent repair claim. (Id., at p. 841.)

The Sabicer plaintiffs alleged problems with various subcomponents of the engine, including the rear driveshaft, engine compartment, and turbocharger. (Ibid.) “The economic loss rule would not bar recovery in tort for damage that these subcomponents cause to the engine as a whole or for damage that the engine caused to the Vehicle in which it has been incorporated.” As stated in Jimenez v. Superior Court (2002) 29 Cal.4th 473, “the economic loss rule allows a plaintiff to recover in strict products liability in tort when a product defect causes damage to ‘other property,’ that is, property other than the product itself.

The law of contractual warranty governs damage to the product itself.” (Id., at p. 483.) However, California law is not so settled that a plaintiff could not possibly recover against a dealership for negligent repair of a vehicle. (Sabicer, supra, at p. 841 [citing case.]) Here, Plaintiff alleges negligence, not strict products liability. Contract and tort are different branches of the law. Contract law exists to enforce the intentions of the parties to an agreement while tort law is designed to vindicate social policy. (North American Chemical Co. v.

Superior Court (1997) 59 Cal.App.4th 764, 774.) However, the same wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts. (Ibid.) The general rule is that where the “negligent” performance of a contract amounts to nothing more than a failure to perform the express terms of the contract, the claim is one for contract breach, not negligence. (Id. at p. 774.) “[A]ccompanying every contract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract.'

The rule which imposes this duty is of universal application as to all persons who by contract undertake professional or other business engagements requiring the exercise of care, skill and knowledge; the obligation is implied by law and need not be stated in the agreement.” (Ibid. [citing case].) This is precisely the allegation here—that Defendant failed to use the degree of care and skill required. In addition, a general demurrer, here the equivalent motion for judgment on the pleadings, must be overruled/denied if the complaint alleges any cause of action.

Therefore, even if negligence were inapplicable to the facts, the complaint would still allege a cause of action for breach of contract for failure to repair the Subject Vehicle as warranted. III. Damage 6