Summary:The Court did not discuss ESI. Instead, the Court granted Plaintiff's Motion to Compel Discovery Responses and Ex Parte Application to Compel Deposition of Defendant Mario Mejia Ornelas, Jr. and Request for Sanctions, ordering Defendants and their counsel to pay the movant's reasonable expenses incurred in making the Motion, including attorney's fees, and ordering defendant Mario Mejia Ornelas, Jr. and his attorney of record to pay sanctions in the amount of $4,460.
Court:United States District Court, C.D. California
Date decided:
Judge:Kato, Kenly K.
Misael Romero v. Weros Pet Shop, et al Case No. EDCV 20-1807-JGB (KKx) United States District Court, C.D. California Filed June 04, 2021 Counsel Ross Cornell, Law Offices of Ross Cornell, APC, Big Bear Lake, CA, for Misael Romero. Aldo Arturo Flores, Flores Law APLC, Chino, CA, for Weros Pet Shop, et al. Kato, Kenly K., United States Magistrate Judge Proceedings: Order GRANTING Plaintiff's Motion to Compel [Dkt. 22] *1 On April 21, 2021, Plaintiff Misael Romero (“Plaintiff”) filed a Motion to Compel Discovery Responses (“Motion”), seeking an order compelling (1) defendant Mario Mejia Ornelas, Jr. to produce complete responses to Interrogatories, Set One, No. 12 and Requests for Production, Set One, Nos. 1, 7, 8, 9, and 10; (2) defendant Weros Pet Shop to produce complete responses to Interrogatories, Set One, No. 12 and Requests for Production, Set One, Nos. 1, 7, 8, and 9; and (3) defendants Mario Mejia Ornelas, Jr. and Weros Pet Shop (collectively, “Defendants”) to serve initial disclosures. ECF Docket No. (“Dkt.”) 22. Plaintiff's Motion also seeks sanctions from Defendants and their counsel in the amount of $11,880. Id. Defendants filed an untimely, four-page Opposition. Dkt. 28. Plaintiff filed a Reply. Dkt. 29. For the reasons set forth below, Plaintiff's Motion is GRANTED and Plaintiff's request for sanctions is GRANTED IN PART. I. BACKGROUND On September 2, 2020, Plaintiff filed a Complaint against defendants Weros Pet Shop, Mario Mejia Ornelas, Jr., and Does 1 through 10 in connection with Defendants’ alleged discrimination against Plaintiff in Defendants’ places of public accommodation on the basis of Plaintiff's disability in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, and the Unruh Civil Rights Act, California Civil Code §§ 51-52. Dkt. 1. On October 9, 2020, Defendants filed an Answer to the Complaint. Dkt. 12. On November 14, 2020, Plaintiff served a first set of Requests for Production, Requests for Admission, and Interrogatories on Defendants. Dkt. 22-1, Declaration of Ross Cornell (“Cornell Decl.”), ¶ 3, Exs. A, B, C, D, E, F. In December 2020, the parties conducted a Federal Rule of Civil Procedure 26(f) conference. Id., ¶ 17, Ex. EE. Defendants failed to serve their initial disclosures within fourteen days after this conference. Id. On December 29, 2020, after Defendants failed to serve responses to the discovery requests by the December 14, 2020 deadline, Plaintiff's counsel emailed Defendants’ counsel to arrange a time to meet and confer regarding Defendants’ failure to respond to written discovery. Id., ¶ 4, Ex. G. On January 5, 2021, Defendants agreed to a waiver of objections and to serve responses without objection to the discovery requests by January 19, 2021. Id. On January 26, 2021, Defendants’ counsel served responses to Plaintiff's first set of Requests for Production, Requests for Admission, and Interrogatories, including numerous objections. Id., ¶¶ 5, 6, Exs. H, I, J, K, L, M, N. That same day, Plaintiff's counsel emailed Defendants’ counsel, “We agreed that your client had waived objections. Why are you now interposing objections and refusing to answer bases there on?” Id., ¶ 7, Ex. O. Defendants’ counsel responded via email that he would provide supplemental responses without objections by February 2, 2021. Id. On January 28, 2021, Plaintiff's counsel and Defendants’ counsel conducted a telephonic conference regarding Defendants’ late discovery responses, improper objections, and the need for supplemental responses. Id., ¶ 8. Defendants’ counsel agreed to serve Defendants’ supplemental responses without objections by February 5, 2021. Id., Ex. P. *2 On February 12, 2021, Plaintiff's counsel emailed Defendants’ counsel stating Plaintiff's counsel had not received supplemental responses. Id., ¶ 9, Ex. Q. Defendants’ counsel responded via email, stating that if Plaintiff's counsel does not receive verified responses by February 19, 2021, then Defendants’ counsel may “recuse [himself] ... by way of a motion to be relieved” and admitted Plaintiff's counsel “would be justified in seeking court intervention.” Id., ¶ 10, Ex. R. On February 18, 2021, Plaintiff's counsel received Defendants’ supplemental responses to Plaintiff's first set of Requests for Production, Requests for Admission, and Interrogatories. Id., ¶ 11, Exs. S, T, U, V, W, X. Defendant Mario Mejia Ornelas, Jr.’s supplemental response to Requests for Production, Set One, No. 7 contained objections claiming the request does “not seek relevant documents or documents reasonably calculated to the discovery of admissible evidence.” Id., ¶ 11, Ex. S. On February 21, 2021, Plaintiff's counsel emailed Defendants’ counsel, demanding defendant Mario Mejia Ornelas, Jr. respond to Requests for Production, Set One, No. 7 without objection. Id., ¶ 12, Ex. Z. On February 22, 2021, having received no response, Plaintiff's counsel emailed Defendants’ counsel, stating Defendants’ responses to Requests for Production, Set One, No. 7 and Interrogatories, Set One, No. 12 are evasive. Id., ¶ 13, Ex. AA. Plaintiff's counsel requested Defendants’ counsel serve defendant Mario Mejia Ornelas, Jr.’s supplemental response without objection to Requests for Production, Set One, No. 7 by February 24, 2021. Id. On March 4, 2021, Plaintiff's counsel received defendant Mario Mejia Ornelas, Jr.’s supplemental response without objection to Request for Production, Set One, No. 7. Cornell Decl., ¶ 14, Ex. BB. On April 3, 2021, Plaintiff served initial disclosures via email and Plaintiff's counsel requested Defendants serve initial disclosures by April 6, 2021. Id., ¶ 15, Ex. CC. On April 9, 2021, having received no initial disclosures, Plaintiff's counsel sent Defendants’ counsel a meet-and-confer letter via email, demanding initial disclosures and identifying items of discovery in contention. Id., ¶ 17, Ex. EE. On April 12, 2021, Defendants’ counsel emailed Plaintiff's counsel, stating Defendants’ counsel would be available April 14 or 15, 2021 to discuss the April 9, 2021 meet-and-confer letter. Id., ¶ 18, Ex. GG. On April 14, 2021, Plaintiff's counsel called Defendants’ counsel and left a voicemail. Id., ¶ 19, Ex. HH. Plaintiff's counsel also emailed Defendants’ counsel, alerting Defendants’ counsel to Plaintiff's voicemail and requesting Defendants’ counsel provide Plaintiff's counsel with alternative times Defendants’ counsel would be available to meet and confer. Id., ¶ 20, Ex. II. On April 21, 2021, Plaintiff filed the instant Motion without a joint stipulation “because Defendants and their counsel failed to meet and confer in a timely matter as required by [Local Civil Rule] 37-1.” Dkt. 22; see also Cornell Decl., ¶ 21. On April 29, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”) against defendants Weros Pet Shop, Mario Mejia Ornelas, Jr., and Does 1 through 10. Dkt. 24. On May 14, 2021, Plaintiff filed a Notice of Defendants’ Non-Opposition to Plaintiff's Motion (“Notice”), stating Defendants failed to timely file any written opposition, or notice of non-opposition, to Plaintiff's Motion on or before May 13, 2021 as required by Local Civil Rules 37-2.4 and 7-9. Dkt. 27. Later that day, Defendants filed a four-page Opposition to the instant Motion, requesting the Court “order Plaintiff's counsel to issue an order to show cause as to why this [C]ourt should not issue monetary sanctions or other sanctions ... or the striking of his [FAC],” or in the alternative, an order barring “Plaintiff from filing any future motions without prior court approval or upon issuance of an order from a discovery referee.”[1] Dkt. 28. *3 On May 18, 2021, Plaintiff filed a Reply to Defendants’ May 14, 2021 Opposition. Dkt. 29. On May 24, 2021, Defendants filed an Answer to the FAC. Dkt. 30. The matter thus stands submitted. II. DISCUSSION A. PLAINTIFF'S MOTION TO COMPEL DEFENDANTS TO SERVE (1) INITIAL DISCLOSURES, (2) SUPPLEMENTAL RESPONSE TO INTERROGATORIES, SET ONE, NO. 12, AND (3) SUPPLEMENTAL RESPONSES TO REQUESTS FOR PRODUCTION, SET ONE, NOS. 1, 7, 8, 9, AND 10 IS GRANTED 1. Relevant Law The Federal Rules of Civil Procedure designates deadlines by which a party must make initial disclosures or respond to discovery requests, including interrogatories and requests for production. Under Federal Rule of Civil Procedure 26(a)(1)(C), “[a] party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan.” See FED. R. CIV. P. 26(a)(1)(C). Further, with respect to interrogatories, under Federal Rule of Civil Procedure 33(b)(2), “The responding party must serve its answers and any objections within 30 days after being served .... with the interrogatories.” FED. R. CIV. P. 33(b)(2). Similarly, with respect to requests for production of documents, under Federal Rule of Civil Procedure 34(b)(2)(A), “The party to whom the request is directed must respond in writing within 30 days after being served .... A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.” FED. R. CIV. P. 34(b)(2)(A). “Any grounds” for objecting to an interrogatory or request for production “not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” FED. R. CIV. P. 33(b)(4); see also City of San Diego v. Amoco Chem. Co., 9 F. App'x 598, 599 n.1 (9th Cir. 2001) (“We ... agree with the district court that any objection to the production of the renovation cost memorandum was waived.”); Bussiere v. Softmart Com. Servs. Inc., No. C08-1461RSM, 2009 WL 10675540, at *1 (W.D. Wash. June 1, 2009) (“The waiver rule has been consistently applied to Rule 34 requests for production by the courts of this circuit.”). In addition, “[c]ounsel for the parties must confer in a good-faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible” before “filing any motion relating to discovery” matters. L.R. 37-1. “It is the responsibility of counsel for the moving party to arrange for this conference.” Id. “Unless relieved by written order of the Court upon good cause shown, counsel for the opposing party must confer with counsel for the moving party within ten days after the moving party serves a letter requesting such conference.” Id. “The failure of any counsel to comply with or cooperate in” such meet-and-confer “procedures may result in the imposition of sanctions.” L.R. 37-4. Finally, “[t]he Court may decline to consider any memorandum or other document not filed within the deadline set by order or local rule.” See L.R. 7-12. Further, “[t]he failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion[.]” Id.; see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming the district court's dismissal pursuant to a local rule that failure to file a memorandum of points and authorities in opposition to any motion shall constitute a consent to the granting of the motion); Korkotyan v. FCA US LLC, No. 2:19-cv-07384-ODW (PLAx), 2019 WL 5260471, at *1 (C.D. Cal. Oct. 15, 2019). 2. Analysis *4 Here, Defendants have a demonstrated pattern of failing to comply with the relevant Federal Rules of Civil Procedure and Local Civil Rules necessitating Court intervention.[2] First, Defendants failed to produce initial disclosures following the parties’ Rule 26(f) conference. See FED. R. CIV. P. 26(a)(1)(C). Second, despite multiple extensions of time from Plaintiff and an agreement to waive objections, Defendants failed to produce timely responses without objections to Plaintiff's first set of Interrogatories and Requests for Production. See FED. RS. CIV. P. 33(b)(2); 34(b)(2)(A). Third, despite Plaintiff's counsel's April 9, 2021 meet-and-confer letter and the parties’ agreement to meet and confer, Defendants’ counsel failed to meet and confer with Plaintiff's counsel regarding the discovery issues in dispute. See Local Civil Rule 37-1. Fourth, as a result of Defendants’ failure to meet and confer, Defendants failed to comply with the Local Civil Rules requiring preparation of a joint stipulation. See Local Civil Rule 37-2. Finally, Defendants failed to oppose the instant Motion in a timely manner, and failure to do so may be deemed consent to granting the instant Motion. See Local Civil Rule 7-12. Accordingly, Plaintiff's Motion is GRANTED, and Defendants are ordered to serve initial disclosures and respond to Plaintiff's first set of Interrogatories and Requests for Production without objection as set forth below. B. PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES IS GRANTED IN PART Under Federal Rule of Civil Procedure 37(a)(5)(A), if the motion to compel is granted, “the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making that motion, including attorney's fees.” FED. R. CIV. P. 37(a)(5)(A). As discussed above, Plaintiff's Motion is granted in its entirety. Defendants’ violation of the Local Civil Rules and Federal Rules of Civil Procedure resulted in both unnecessary fees incurred by Plaintiff and an unnecessary expenditure of judicial resources. Plaintiff's counsel lists a total of nineteen hours he spent corresponding and communicating with Defendants’ counsel to obtain discovery responses and initial disclosures; assembling Plaintiff's counsel's declaration for the instant Motion; and drafting the instant Motion; and the three hours he anticipated reviewing Defendants’ Opposition and drafting a Reply at an hourly rate of $495. Cornell Decl., ¶¶ 23, 24. While the Court finds Plaintiff's counsel's hourly rate reasonable, the Court finds the hours claimed are slightly overstated. Hence, the Court reduces the hours as follows to reflect the reasonable amount of time for each task: five hours to communicate with the defense to obtain discovery responses and initial disclosures; four hours to assemble a declaration in support of the instant Motion; five hours to draft the instant Motion and proposed order, and one-and-a-half hours to review Defendants’ Opposition and draft a Reply. The Court, therefore, GRANTS IN PART Plaintiff's request for attorney's fees. Defendants and Defendants’ counsel, jointly and severally, shall pay to Plaintiff the sum of $7,672.50 for 15.5 hours of Plaintiff's counsel's time devoted to obtaining the initial disclosures and discovery responses in dispute. III. CONCLUSION *5 Based upon the foregoing reasons, IT IS THEREFORE ORDERED that Plaintiff's Motion to Compel is GRANTED and request for attorney's fees is GRANTED IN PART. The Court ORDERS as follows: 1. Defendants Mario Mejia Ornelas, Jr. and Weros Pet Shop shall serve their initial disclosures no later than June 11, 2021. 2. Defendant Mario Mejia Ornelas, Jr. shall serve responses without objections to Interrogatories, Set One, No. 12 and Requests for Production, Set One, Nos. 1, 7, 8, 9, and 10 and produce responsive documents no later than June 11, 2021. 3. Defendant Weros Pet Shop shall serve responses to Interrogatories, Set One, No. 12 and Requests for Production, Set One, Nos. 1, 7, 8, and 9 and produce responsive documents no later than June 11, 2021. 4. Defendants Mario Mejia Ornelas, Jr. and Weros Pet Shop and Defendants’ counsel, Aldo Arturo Flores, jointly and severally, shall pay the sum of $7,672.50 to Plaintiff within sixty (60) days of the date of this Order. IT IS SO ORDERED. Footnotes [1] It is not entirely clear what Defendants’ request is and on what grounds Defendants make this request. Dkt. 28. The Court declines to consider Defendants’ request. [2] Additionally, on May 25, 2021, Plaintiff filed an Ex Parte Application to Compel Deposition of Defendant Mario Mejia Ornelas, Jr. and Request for Sanctions (“Application”) for defendant Mario Mejia Ornelas, Jr.’s refusal to appear at his noticed deposition. Dkt. 31. Defendants did not file an Opposition to the Application. The Court, therefore, granted Plaintiff's Application, ordering defendant Mario Mejia Ornelas, Jr. to appear for the deposition and defendant Mario Mejia Ornelas, Jr. and his attorney of record to pay sanctions in the amount of $4,460 to Plaintiff on or before June 30, 2021. Dkt. 33.