HENDERSON vs MCLAGGAN, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with

23CV013662: HENDERSON vs MCLAGGAN, et al. 10/31/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") Response to plf’s Requests for Production, Form Interrogatories and Special Interrogatories in Department 53

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENATIVE RULING:

Plaintiff Stephanie Henderson’s (“Plaintiff”) motion to compel initial responses from Defendants Lindsay McLaggan and Peyton Rosenberg (“Defendants”) to Plaintiff’s requests for production, form interrogatories, special interrogatories, to deem matters admitted, and for monetary sanctions is UNOPPOSED and ruled upon as follows.

This motion seeks multiple forms of relief regarding separate forms of discovery (responses to production of documents, responses to special interrogatories, and deem matters and genuineness of documents admitted) against two separate defendants, each of which contemplates a separate motion. Instead of filing separate motions as to each form of discovery, Plaintiff filed a singular omnibus motion. Effective July 1, 2024, Local Rule 2.31(E) provides as follows:

When simultaneously filing multiple discovery-related motions in the same case with the same hearing date, each motion shall be filed as a separate document and a separate filing fee paid for each. Parties may not combine motions pertaining to different types of discovery within the same document. Failure to comply with any part of this rule regarding discovery motions may, in the discretion of the court, be grounds for the motions being dropped without consideration.

As this matter was filed mere days after the effective date of the Local Rule, the Court shall consider the instant motion. In the future, parties are reminded to file separate motions for each form of discovery-related request.

On December 18, 2023, Plaintiff initiated this action against Defendants for wrongful eviction, retaliatory eviction, abuse of process, and negligence. Defendants were served with the initial complaint in late December 2023. (See POS 1/2/24 & 1/29/23.) Plaintiff filed a first amended complaint (“1AC”) on March 15, 2024. Defendants were served with the 1AC and provided an acknowledgement of service of the 1AC in April 2024. (See Notice and Acknowledgement of Receipt 4/30/24.)

On May 21, 2024, Plaintiff served Defendants with Plaintiff’s requests for production of documents (set one), form interrogatories (set one), special interrogatories (set one), and requests for admission (set one). (Declaration of Erica OConnell (“OConnell Decl.”) ¶7-9, Exh. 1.) Defendants failed to serve responses to the subject discovery by the deadline of June 24, 2024.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV013662: HENDERSON vs MCLAGGAN, et al. 10/31/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") Response to plf’s Requests for Production, Form Interrogatories and Special Interrogatories in Department 53

(OConnell Decl. ¶11.)

Plaintiff now moves to compel initial responses to its written discovery and to deem matters admitted and to deem the genuineness of the documents. Defendants did not file any timely opposition. A party’s failure to oppose a motion is construed as a concession on the merits of the motion. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, n.4.) The Court notes that on October 29, 2024, the day before the Court issues its tentative ruling on this matter, Defendants’ counsel filed a declaration providing various reasons for why he failed to provide timely responses to discovery. The Court does not consider the declaration given its untimeliness. The Court further notes that a meet-and-confer declaration is not required for a motion to compel initial responses.

A plaintiff is entitled to propound interrogatories, requests for production, and requests for admission, “without leave of court at any time that is 10 days after service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first.” (Code Civ. Proc. §§ 2030.020, subd. (b), 2031.020, subd. (b), 2033.020, subd. (b).)

Accordingly, Plaintiff’s motion to compel is GRANTED in that Defendants shall serve verified responses, without objection, to Plaintiff’s requests for production (set one), form interrogatories (set one), and special interrogatories (set one) by no later than December 7, 2024, if Defendants have not already done so.

In addition, Code of Civil Procedure section 2033.280 provides that where a party to whom requests for admissions have been directed fails to serve a timely response, the party waives any objection to the requests and that the requesting party may move for an order that the truth of any facts enumerated in the requests shall be deemed admitted. Defendant failed to serve any responses or objections to the subject discovery. Therefore, Plaintiff’s motion to deem matters and genuineness of documents admitted is also GRANTED unless Plaintiff serves, ‘before the hearing on the motion,” proposed responses that are in substantial compliance with Code of Civil Procedure section 2033.220. (Code Civ. Proc. §2033.280, subd. (c).)

Plaintiff’s request for sanctions is DENIED as the notice fails to comply with Code of Civil Procedure section 2023.040, which requires that “[a] request for sanctions shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought.” The notice of motion simply seeks “an order for monetary sanctions.” (Not. of Mot. at 2:4-5.) Defendant failed to identify any person, party, or attorney against whom sanctions were sought in the notice of motion.

In addition, in relation to Plaintiff’s motion to compel responses to her requests for production and interrogatories, because the motion is unopposed, the request for sanctions would be denied

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV013662: HENDERSON vs MCLAGGAN, et al. 10/31/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") Response to plf’s Requests for Production, Form Interrogatories and Special Interrogatories in Department 53

on this separate basis. Although California Rule of Court 3.1348, subdivision (a) purports to authorize sanctions if the motion is unopposed, the Court declines to award such sanctions here, as the specific statutes governing this discovery authorize sanctions only if the motion was unsuccessfully made or opposed. (See Code Civ. Proc. §§ 2030.290(c) (interrogatories); 2031.300(c) (requests for production).) Any order imposing sanctions under the Rules of Court must conform to the conditions of one or more of the statutes authorizing sanctions. (Trans- Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 355.)

While it is “mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion” (Code Civ. Proc. § 2033.280(c)), sanctions pursuant to Section 2023.010, et seq. may be imposed only after notice. (Code Civ. Proc. §2023.030.) Thus, because the notice of motion fails to properly request sanctions, the request must also be denied as to Plaintiff’s motion to deem matters and genuineness of documents admitted.

However, repeated failures to comply with discovery obligations may lead the Court to find a “misuse of the discovery process” and award sanctions on that basis pursuant to Code of Civil Procedure section 2023.030, subdivision (a). (See Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481.)

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC, Rule 3.1312.)