Case Name: Ammini, et al. v. Antara Biosciences, et al.
Case No.: 2010-1-CV-167069

Plaintiff brings this motion to compel Defendant Dory Ichinotsubo’s response to a single, innocuous form interrogatory 2.5, which merely requests that Defendant identify her place(s) of residence for the past five years. There appears to be no dispute that Defendant had not served a properly verified response before the motion was filed.

Defendant’s late-filed opposition provides a copy of a verified response, purportedly verified by Defendant in Tokyo, Japan on September 21, 2016. Defense counsel’s declaration pleads inadvertence in failing to earlier serve the verified response. However, counsel does not explain his failure to respond to multiple prior emails from Plaintiff’s counsel requesting this response, the last which preceded this motion having been sent on December 14, 2016. Only after having received service of Plaintiff’s motion to compel did Defendant’s counsel produce the verified response – which is identical to the unverified copy served by email on August 31, 2016.

Although this motion practice should have been completely unnecessary, and would seem to be much ado about nothing in the overall context of this case, defense counsel’s failure to simply provide the verified response before the motion to compel was filed is neither explained nor justified. Counsel had multiple opportunities over many months to rectify his inadvertence or mistake in initially serving the unverified response.

Plaintiff’s counsel’s multiple reminders requesting the response should have prompted Defendant’s counsel to provide it – and the motion would then have been completely unnecessary. Defendant’s position that Plaintiff’s counsel failed to adequately meet and confer has no merit where the Code of Civil Procedure imposes no such requirement – counsel must meet and confer prior to motions to compel further responses, not when no responses were received. An unverified response is equivalent to no response at all.

Plaintiff’s motion is therefore GRANTED. If this has not already been done, Defendant must serve a verified response to form interrogatory 2.5 within five days.

Plaintiff’s request for monetary sanctions is also GRANTED. The Court issues monetary sanctions against Defendant Ichinotsubo and her counsel, jointly and severally, in the amount of $560. The Court finds Plaintiff’s request for $11,130 to be far in excess of the amount of reasonable attorney’s fees and costs expended in bringing such a simple and straightforward motion. The Court finds 2 hours of Mr. Peixoto’s time at $250 per hour, plus the $60 filing fee, to be the fees and expenses reasonably incurred in bringing this motion. This sanction shall be paid to Plaintiff’s counsel within five days.