ALFREDO NORIEGA, ET AL. VS RENUKA GENGANI SENAVIRATHNA

Tentative Rulings

Case Number: 19STLC05173    Hearing Date: November 10, 2020    Dept: 25

HEARING DATE: Tue., November 10, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Noriega, et al. v. Senavirathna COMPL. FILED: 05-29-19

CASE NUMBER: 19STLC05173 DISC. C/O: 10-26-20

PROCEEDINGS: (1) MOTION FOR ORDER COMPELLING PLAINTIFF ALFREDO NORIEGA TO ANSWER FORM INTERROGATORIES AND REQUEST FOR SANCTIONS

(2) MOTION FOR ORDER COMPELLING PLAINTIFF ALFREDO NORIEGA TO PROVIDE VERIFIED RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS

MOVING PARTY: Defendant Renuka G. Senavirathna

RESP. PARTY: Plaintiffs’ Former Counsel William M. Zimmerman

MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS

(CCP §§ 2030.290; 2031.300)

TENTATIVE RULING:

Defendant Renuka G. Senavirathna’s motions to compel responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, are GRANTED. Plaintiff Noriega is ordered to provide responses to Defendant’s discovery requests within thirty (30) days of notice of this order. Defendant’s request for sanctions is also GRANTED in the amount of $523.30 to be paid to Defendant’s counsel within thirty (30) days of notice of this order.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on February 13, 2020 [ ] Late [ ] None

REPLY: None filed as of November 6, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On May 29, 2019, Plaintiffs Alfredo Noriega (“Noriega”) and Perla Selena Roman Mendez (“Mendez”) (collectively, “Plaintiffs”) filed an action for negligence against Renuka Gangani Senavirathna (“Defendant”). On August 7, 2019, Defendant filed an Answer.

On January 21, 2020, Defendant filed the instant (1) Motion for Order Compelling Plaintiff Alfredo Noriega to Answer Form Interrogatories, Set One, and Request for Sanctions and (2) Motion for Order Compelling Plaintiff Alfredo Noriega to Provide Verified Responses to Special Interrogatories, Set One, and Request for Production of Documents, Set One, and Request for Sanctions (collectively, the “Motions”). On February 13, 2020, Plaintiffs’ former counsel filed a declaration in opposition. No reply was filed.

On July 28, 2020, the Court granted Plaintiffs’ counsel’s motion to be relieved as counsel. (7/28/20 Minute Order.) On August 7, 2020, Plaintiffs’ former counsel filed proofs of service demonstrating the Court’s July 28^th order was served on Plaintiffs. (8/7/20 Notice of Ruling on Motion to Withdraw & Proofs of Service.)

On September 1, 2020, the Court, on its own motion, continued the hearing on the discovery Motions to September 23, 2020 at 10:00 a.m. (9/1/20 Minute Order.) The clerk gave notice to Plaintiffs’ former counsel and Defendant’s counsel. (9/1/20 Certificate of Mailing.) However, Defendant did not file a proof of service demonstrating Plaintiff Noriega himself was given notice of the Court’s continuance.

At the September 22, 2020 hearing, the Court stated it was inclined to grant the Motion but did not do so because Defendant did not file a proof of service demonstrating Plaintiff Noriega was served with notice of the September 1^st continuance. (9/22/20 Minute Order.) Defendant thereafter filed a proof of service demonstrating Plaintiffs were served with a notice of ruling on September 29, 2020. (9/29/20 Notice of Ruling.) Defendant also personally served a copy of the Notice of Ruling and reserved Plaintiffs with the discovery Motions on October 8, 2020. (10/15/20 Proof of Service.)

1. Legal Standard & Discussion

A. Request for Production & Interrogatories

A party must respond to interrogatories and requests for production of documents within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a); Code Civ. Proc., § 2031.260, subd. (a).) If a party to whom interrogatories or requests for production of documents are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b); Code Civ. Proc., § 2031.300, subd. (c).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a); Code Civ. Proc., § 2031.300, subd. (a).) There is no time limit for a motion to compel responses to interrogatories or production of documents other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., §§ 2024.020, subd. (a), 2030.290; Code Civ. Proc., § 2031.300.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290; Code Civ. Proc., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)

Here, Defendant served Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production and Inspection of Documents, Set One, on Plaintiff Noriega’s former counsel on August 6, 2019 via regular mail. (Motions, Adem Decl., ¶ 3, Exh. A.) Defendant’s counsel submits evidence demonstrating that her office and Plaintiffs’ counsel’s office exchanged several emails regarding the lack of discovery responses. (Id. at ¶ 4, Exh. B.) The lack of discovery responses appears to result from Plaintiff Noriega’s failure to cooperate with his former attorney. (Id.) To date, Plaintiff Noriega has not provided any responses to Defendant’s discovery requests. (Id. at ¶ 5.) Thus, Defendant is entitled to an order compelling Plaintiff Noriega to provide verified responses without objections. (Code Civ. Proc., §§ 2030.290, 2031.300.)

B. Sanctions

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)

The Court finds Plaintiff Noriega’s failure to respond to Defendant’s discovery requests a misuse of the discovery process.

Defendant’s counsel seeks a total of $923.30 in sanctions, based on four hours of attorney time billed at $200.00 per hour and two filing fees of $61.65. (Motions, Adem Decl., ¶ 7.) However, the amount sought is excessive given the simplicity of these nearly identical motions and lack of reply. The Court finds $523.30, based on two hours of attorney time and two filing fees, to be reasonable.

1. Conclusion & Order

For the foregoing reasons, Defendant Renuka G. Senavirathna’s motions to compel responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, are GRANTED. Plaintiff Noriega is ordered to provide responses to Defendant’s discovery requests within thirty (30) days of notice of this order. Defendant’s requests for sanctions are also GRANTED in the amount of $523.30 to be paid to Defendant’s counsel within thirty (30) days of notice of this order.

Moving party is ordered to give notice.

Case Number: 19STLC05173    Hearing Date: September 22, 2020    Dept: 25

HEARING DATE: Tue., September 22, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Noriega, et al. v. Senavirathna COMPL. FILED: 05-29-19

CASE NUMBER: 19STLC05173 DISC. C/O: 10-26-20

PROCEEDINGS: (1) MOTION FOR ORDER COMPELLING PLAINTIFF ALFREDO NORIEGA TO ANSWER FORM INTERROGATORIES AND REQUEST FOR SANCTIONS

(2) MOTION FOR ORDER COMPELLING PLAINTIFF ALFREDO NORIEGA TO PROVIDE VERIFIED RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR SANCTIONS

MOVING PARTY: Defendant Renuka G. Senavirathna

RESP. PARTY: Plaintiffs’ Former Counsel William M. Zimmerman

MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS

(CCP §§ 2030.290; 2031.300)

TENTATIVE RULING:

Defendant Renuka G. Senavirathna’s motions to compel responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, are GRANTED ON THE CONDITION THAT, before the hearing, Defendant’s counsel files a proof of service demonstrating Plaintiff was served with notice of the Court’s September 1^st continuance. If granted, Plaintiff Noriega will be ordered to provide responses to Defendant’s discovery requests within thirty (30) days of notice of this order. Defendant’s request for sanctions will also be GRANTED in the amount of $523.30 to be paid to Defendant’s counsel within thirty (30) days of notice of this order.

Otherwise, the hearing on these Motions will be CONTINUED TO NOVEMBER 10, 2020 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. If continued, at least 16 court days before the next scheduled hearing, Defendant must file and serve supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Motions being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on February 13, 2020 [ ] Late [ ] None

REPLY: None filed as of September 18, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On May 29, 2019, Plaintiffs Alfredo Noriega (“Noriega”) and Perla Selena Roman Mendez (“Mendez”) (collectively, “Plaintiffs”) filed an action for negligence against Renuka Gangani Senavirathna (“Defendant”). On August 7, 2019, Defendant filed an Answer.

On January 21, 2020, Defendant filed the instant (1) Motion for Order Compelling Plaintiff Alfredo Noriega to Answer Form Interrogatories, Set One, and Request for Sanctions and (2) Motion for Order Compelling Plaintiff Alfredo Noriega to Provide Verified Responses to Special Interrogatories, Set One, and Request for Production of Documents, Set One, and Request for Sanctions (collectively, the “Motions”). On February 13, 2020, Plaintiffs’ former counsel filed a declaration in opposition. No reply was filed.

On July 28, 2020, the Court granted Plaintiffs’ counsel’s motion to be relieved as counsel. (7/28/20 Minute Order.) On August 7, 2020, Plaintiffs’ former counsel filed proofs of service demonstrating the Court’s July 28^th order was served on Plaintiffs. (8/7/20 Notice of Ruling on Motion to Withdraw & Proofs of Service.)

On September 1, 2020, the Court, on its own Motion, continued the hearing to September 23, 2020 at 10:00 a.m. (9/1/20 Minute Order.) The clerk gave notice to Plaintiffs’ former counsel and Defendant’s counsel. (9/1/20 Certificate of Mailing.) However, Defendant did not file a proof of service demonstrating Plaintiff Noriega himself was given notice of the Court’s continuance.

1. Legal Standard & Discussion

A. Request for Production & Interrogatories

A party must respond to interrogatories and requests for production of documents within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a); Code Civ. Proc., § 2031.260, subd. (a).) If a party to whom interrogatories or requests for production of documents are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b); Code Civ. Proc., § 2031.300, subd. (c).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a); Code Civ. Proc., § 2031.300, subd. (a).) There is no time limit for a motion to compel responses to interrogatories or production of documents other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., §§ 2024.020, subd. (a), 2030.290; Code Civ. Proc., § 2031.300.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290; Code Civ. Proc., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)

Here, Defendant served Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production and Inspection of Documents, Set One, on Plaintiff Noriega’s former counsel on August 6, 2019 via regular mail. (Motions, Adem Decl., ¶ 3, Exh. A.) Defendant’s counsel submits evidence demonstrating that her office and Plaintiffs’ counsel’s office exchanged several emails regarding the lack of discovery responses. (Id. at ¶ 4, Exh. B.) The lack of discovery responses appears to be Plaintiff Noriega’s failure to cooperate with his attorney to provide responses. (Id.) To date, Plaintiff Noriega has not provided any responses to Defendant’s discovery requests. (Id. at ¶ 5.) Thus, Defendant is entitled to an order compelling Plaintiff Noriega to provide verified responses without objections. (Code Civ. Proc., §§ 2030.290, 2031.300.)

B. Sanctions

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)

The Court finds Plaintiff Noriega’s failure to respond to Defendant’s discovery requests a misuse of the discovery process.

Defendant’s counsel seeks a total of $923.30 in sanctions, based on four hours of attorney time billed at $200.00 per hour and two filing fees of $61.65. (Motions, Adem Decl., ¶ 7.) However, the amount sought is excessive given the simplicity of these nearly identical motions and lack of reply. The Court finds $523.30, based on two hours of attorney time and two filing fees, to be reasonable.

Although the Court is inclined to grant the Motions, Defendant did not file a proof of service demonstrating Plaintiff Noriega, who is now self-represented, was given notice of the Court’s September 1^st continuance of hearing. However, in the interest of judicial economy, the Motions are GRANTED ON THE CONDITION THAT, before the hearing, Defendant’s counsel files a proof of service demonstrating Plaintiff Noriega was given proper notice of the Court’s September 1^st continuance. Otherwise, the hearing will be CONTINUED.

1. Conclusion & Order

For the foregoing reasons, Defendant Renuka G. Senavirathna’s motions to compel responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, are GRANTED ON THE CONDITION THAT, before the hearing, Defendant’s counsel files a proof of service demonstrating Plaintiff was served with notice of the Court’s September 1^st continuance. If granted, Plaintiff Noriega will be ordered to provide responses to Defendant’s discovery requests within thirty (30) days of notice of this order. Defendant’s request for sanctions will also be GRANTED in the amount of $523.30 to be paid to Defendant’s counsel within thirty (30) days of notice of this order.

Otherwise, the hearing on these Motions will be CONTINUED TO NOVEMBER 10, 2020 10:30

Moving party is ordered to give notice.

Case Number: 19STLC05173    Hearing Date: July 28, 2020    Dept: 25

HEARING DATE: Tue., July 28, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Noriega, et al. v. Senavirathna COMPL. FILED: 05-29-19

CASE NUMBER: 19STLC05173 DISC. C/O: 10-26-20

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL (X2)

MOVING PARTY: Plaintiffs’ Counsel Lori S. DeCristo

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC rule 3.1362)

TENTATIVE RULING:

Plaintiffs’ Counsel Lori S. DeCristo’s Motions to be Relieved as Counsel are GRANTED and the proposed orders will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Orders on this Motion will not be effective until proof of service of a copy of the signed orders on Plaintiffs have been filed with the court. (Id.)

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of July 24, 2020 [ ] Late [X] None

REPLY: None filed as of July 24, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On May 29, 2019, Plaintiffs Alfredo Noriega (“Noriega”) and Perla Selena Roman Mendez (“Mendez”) (collectively, “Plaintiffs”) filed an action for negligence against Renuka Gangani Senavirathna (“Defendant”). On August 7, 2019, Defendant filed an Answer.

On December 10, 2019, Plaintiffs’ Counsel Lori S. DeCristo (“Counsel”) filed the instant Motions to be Relieved as Counsel (the “Motions”), which were originally set for hearing for June 10, 2020. On April 21, 2020, the Court continued the hearing to July 28, 2020 at 9:30 a.m. (4/21/20 Minute Order.) Counsel filed a proof of service demonstrating that on May 7, 2020, it mailed a notice of the continuance to Defendant and Plaintiffs. (7/13/20 Notice of Ruling, Proof of Service.)

To date, no oppositions have been filed.

1. Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc., § 284, subd. (2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).)

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either:

(A) The service address is the current residence or business address of the client; or

(B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.

(Cal. Rules of Court, rule 3.1362, subds. (1)(A) & (2).)

1. Discussion

Plaintiffs’ counsel seeks to be relieved because differences have arisen between Counsel’s law firm and Plaintiffs that will preclude Counsel from providing effective representation. (MC-052, ¶¶ 2.) Counsel served Plaintiffs with the Motion and Notice of Motion (Form MC-051), Supporting Declaration (Form MC-052) and Proposed Order (Form MC-053) by mail at their last known address. (Id. at ¶ 3(b).) Counsel confirmed their address was current by telephone at most 30 days before filing this Motion. (Id.)

The Court is satisfied with the reasons for seeking to be relieved and finds Counsel has satisfied the requirements of California Rules of Court, rule 3.1362, subdivisions (a) and (c)-(e). Notably, a trial date has not yet been set, giving Plaintiffs sufficient time to obtain new representation should they wish to continue prosecuting this action.

1. Conclusion & Order

For the foregoing reasons, Plaintiffs’ Counsel Lori S. DeCristo’s Motions to be Relieved as Counsel are GRANTED and the proposed orders will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Orders on this Motion will not be effective until proof of service of a copy of the signed orders on Plaintiffs have been filed with the court. (Id.)

Plaintiffs’ Counsel is ordered to give notice.