Case Number:?BC496060????Hearing Date:?October 04, 2018????Dept:?78
Superior Court of California
County of Los Angeles
Department?78
| ANCHOR BAY ENTERTAINMENT;
Plaintiff,
vs.
LINDSAY DUNLAP,?et al.;
Defendants. |
Case No.: | BC496060 |
| Hearing Date: | October 4, 2018 | |
| RULING RE:
PLAINTIFF ANCHOR BAY ENTERTAINMENT, LLC?S MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES, AND TO DEEM FACTS ADMITTED |
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Plaintiff Anchor Bay Entertainment, LLC?s Motion to Compel Responses to Request for Production of Documents shall be GRANTED if code-compliant and objection-free responses are not served by the date of hearing on this motion. If such responses are not provided, the Court will award sanctions of $2,440.00 against Minghella and his counsel.
Plaintiff?Anchor Bay Entertainment, LLC?s Motion to Compel Responses to Interrogatories shall be GRANTED if code-compliant and objection-free responses are not served by the date of hearing on this motion. If such responses are not provided, the court will award sanctions of $2,440.00 against Minghella and his counsel.
Plaintiff?Anchor Bay Entertainment, LLC?s Motion to Deem Facts Admitted shall be GRANTED if code-compliant and objection-free responses are not served by the date of hearing on this motion. ABE is awarded sanctions against Minghella and his counsel in the amount of $2,440.00.
FACTUAL BACKGROUND
This is an action to set aside fraudulent transfers. The Complaint alleges as follows. Plaintiff Anchor Bay Entertainment, LLC (?ABE?) on November 8, 2010, obtained a court judgment against Defendant Lindsay Dunlap (?Dunlap?) in an amount exceeding $3 million. (Complaint ? 14.) During the pendency of the case, Dunlap quitclaimed certain property to Defendant John Yuka & Giulia Family Trust (?Trust?) in alleged satisfaction of a preexisting debt to the Trust?s trustee, G.F. Minghella (?Minghella?). (Complaint ?? 15?16.) This transfer was for inadequate consideration and designed to frustrate ABE?s collection of its judgment. (Complaint ?? 17?19.)
PROCEDURAL HISTORY
ABE filed the Complaint on November 20, 2012, alleging six causes of action:
- To Set Aside Fraudulent Transfer
- To Set Aside Fraudulent Transfer
- For Injunctive Relief
- For issuance of Assignment Order
- To Cancel Instrument
- To Cancel Instrument
On November 21, 2014, Minghella filed a cross-complaint for abuse of process against ABE.
On April 3, 2015, the court granted ABE?s special motion to strike the cross-complaint.
Minghella appealed the ruling, and on October 6, 2016, a remittitur was issued affirming the ruling striking the cross-complaint.
PRE-FILING HISTORY
ABE?served upon Minghella Request for Admissions, Request for Production, and Form Interrogatories on November 7, 2017. (Herzlich Decl. ? 3.)
No response was served by December 21, 2017, so ABE?s counsel wrote to Minghella and his counsel, notifying them that objections were waived, and giving them ten days to respond to the discovery. (Herzlich Decl. ? 5, Exh. B.) ABE called Minghella?s counsel on January 4, 2018, regarding the discovery, and sent a meet-and-confer letter on January 5, 2018. (Roza Decl. ? 3, Exh. C.)
The present Motions to Compel and Deem Admitted were filed on February 20, 2018.
Minghella filed an Opposition on April 27, 2018, indicating that his attorney had suffered an injury on January 4, 2018, requiring serious medical intervention, thus preventing communication between attorney and client before the motions were filed. (Henry Decl. ? 2.)
ABE filed a Reply on May 21, 2018.
On June 7, 2018, this case was transferred from Dept. 14 to Dept. 58.
On July 24, 2018, this case was transferred from Dept. 58 to Dept. 78.
DISCUSSION
- MOTIONS TO COMPEL & DEEM ADMITTED
?Any party?may?obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.???(Code Civ. Proc., ? 2030.010 subd. (a).) If a?party fails to serve a timely response to interrogatories, ?[t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.? (Code Civ. Proc., ? 2030.290 subd. (b).) A party who fails to timely respond to interrogatories waives objections to those interrogatories. (Code Civ. Proc. ? 2030.290, subd. (a).)
Likewise, ?[a]ny party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.? (Code Civ. Proc. ? 2031.010(a).) If a party fails to serve a timely response to the demand, ?[t]he party making the demand may move for an order compelling response to the demand.? (Code Civ. Proc. ? 2031.300, subd. (b).) Failure to timely serve responses waives all objections to the demand. (Code Civ. Proc. ? 2031.300, subd. (a).0
?Any party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.? (Code Civ. Proc., ? 2033.010.)
If a?party fails to serve a timely response to requests for admissions, ?[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction? (Code Civ. Proc., ? 2033.280 subd. (b).) A failure to serve timely responses also ?waives any objection to the requests, including one based on privilege or on the protection for work product . . . .? (Code Civ. Proc., ? 2033.280 subd. (a).)
Although the discovery at issue in this motion was served on November 7, 2017, no responses were given before the motions were filed on February 20, 2018. (Herzlich Decl. ?? 3, 7.) Minghella has therefore waived objections to the discovery, per the above-cited authority. Although Minghella argues that his counsel was injured from January 4, 2018, onward, the discovery was by that date overdue in any event, and the fact of the injury does not excuse him from providing responses. Likewise, although Minghella raises several procedural complaints regarding the timing of these motions in relation to his counsel?s medical treatment schedule, hearing on these motions has already been delayed by several months, rendering those scheduling complaints largely moot.
In a Reply filed on May 21, 2018, ABE represents that Minghella served discovery responses on April 30, 2018, but that these were unverified, unsigned, and contained various objections. (Reply at pp. 7?8.) If this characterization of the responses is true, then Minghella?s responses have not mooted these motions, because Minghella has waived all objections by his untimely response.
If code-complaint and objection-free responses to the Requests for Production, Form Interrogatories, and Requests for Admission are not served upon ABE by the date of hearing on these motions, then the court shall GRANT all three motions.
- SANCTIONS
A party that succeeds in bringing a motion to compel or motion to deem admitted is entitled to monetary sanctions absent substantial justification. (See?Code Civ. Proc. ?? 2030.290, subd. (c); 2031.300, subd. (c); 2033.280, subd. (b).)
ABE seeks sanctions in connection with its Motion to Compel Responses to Requests for Production in the amount of $2,440.00, representing four hours of attorney work at $595 per hour plus a $60 filing fee. (Herzlich Decl. ? 9.) ABE seeks the same sanctions in connection with its other two motions.
ABE is entitled to sanctions as to its Motion to Deem Admitted, because sanctions for such motions are mandatory upon ?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, subd. (c).) The court therefore awards ABE $2,440.00 in sanctions against Minghella and his counsel in connection with the Motion to Deem Admitted.
The court will award sanctions upon the Motions to Compel Responses to Requests for Production and Form Interrogatories if code-compliant and objection-free responses are not served by the date of hearing on this motion.
Plaintiff to give notice.
DATED:??October 4, 2018??????????????????????????????________________________________
Hon. Robert S. Draper
Judge of the Superior Court