2017-00223629-CU-OE

Salina Rudolph vs. Fedex Corporation

Nature of Proceeding: Motion to Compel Form Interrogatories

Filed By: Matheis, Charles W

Defendant Federal Express Corporation’s (“FedEx”) motion to compel plaintiff Salina Rudolph (“Plaintiff”) to provide responses to form interrogatories (set one) is GRANTED.

The notice of hearing does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. FedEx’s counsel is directed to contact responding parties forthwith and advise them of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If FedEx’s counsel is unable to contact the responding parties prior to hearing, FedEx’s counsel is ordered to appear at the hearing in person or by telephone.

FedEx served its first set of form interrogatories on Plaintiff by mail on February 23, 2018. Plaintiff’s responses were due on April 2, 2018. Plaintiff did not provide responses. When no responses were received, FedEx sent a letter to Plaintiff’s counsel. FedEx filed this instant motion on May 1, 2018, after receiving no response.

In opposition, Plaintiff contends the motion is moot because she fully responded to the first set of form interrogatories without objections on April 27, 2018, and provided further supplemental responses on May 16, 2018 [subsequent to the motion’s filing]. However, there is no declaration or proof of service showing that the responses were actually served. As a result, on the record before it, the Court cannot determine whether and when responses were actually served. Accordingly, the purported service of responses does not moot the motion. FedEx is still entitled to an order. To be clear, a motion is “made” when it is filed and served. (Code Civ. Proc. § 1005.5.) On the record before it, at the time the motion was filed Plaintiff had not served responses.

Here, Plaintiff failed to timely respond to the form interrogatories and, therefore, waived all objections. FedEx is entitled to an order compelling responses to the requests without objections. The Court expresses no opinion about the sufficiency of responses served after the motion was made

FedEx’s request for sanction is denied because the motion was not opposed on the merits. Although CRC 3.1348(a) purports to authorize sanctions if a motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC 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.) However, repeated conduct of failing to comply with discovery obligations may lead the Court to find an abuse of the discovery process and award sanctions on that basis. (Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal. App. 3d 481.)

FedEx’s motion to compel is GRANTED.

Plaintiff shall serve verified responses, without objections, to FedEx’s first set of form interrogatories no later than June15, 2018.