Case Name: Davberta, Inc., et al. v. Spinneret Acquisitions, LLC, et al.

Case No.: 16CV289809

(1) Plaintiffs’ Motion to Compel Defendant T. David McKee’s Discovery Responses to Form Interrogatories-General, Set One (1) and for Sanctions
(2) Plaintiffs’ Motion to Compel Defendant T. David McKee’s Discovery Responses to Request for Production of Documents, Set One (1) and for Sanctions

Discovery Dispute

On October 5, 2017, plaintiff Gary Speaker (“Speaker”) served, by mail, defendant T. David McKee (“McKee”) with form interrogatories-general (“FI”), set one, and request for production of documents (“RPD”), set one.

On October 17, 2017; November 6, 2017; and November 22, 2017, defendant McKee’s counsel requested and plaintiff Speaker’s counsel granted extensions of time to serve answers to the FI and RPD. Defendant McKee was granted an extension until December 8, 2017 to serve responses to the discovery.

Plaintiff Speaker’s counsel did not receive any responses to the discovery. On January 2, 2018, plaintiff Speaker’s counsel wrote to defendant McKee’s counsel stating all objections have been waived and stating his intent to file a motion to compel and make a request for sanctions if responses were not received by January 9, 2018.

On January 11, 2018, McKee’s counsel responded disagreeing that all objections have been waived, indicating his client had been difficult to reach, but indicating responses to the discovery would be provided “in the next week or two.”

On March 16, 2018, plaintiff Speaker filed the motion now before the court, a motion to compel defendant McKee’s response to the FI and RPD and request for sanctions.

On April 26, 2018, defendant McKee filed opposition. Defendant McKee declares he served plaintiff Speaker with responses to the discovery on April 19, 2018.

Discussion

I. Plaintiff Speaker’s motion to compel defendant McKee’s response to FI and RPD, set one, is DENIED AS MOOT.

“If a party to whom interrogatories are directed fails to serve a timely response, … [t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., §2030.290, subd. (b).) “All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶8:1140, p. 8F-58 citing Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 – 906.) “Where there has been no timely response to a CCP §2031.010 demand, the first thing the demanding party must do is to seek an order compelling a response.” (Id. at ¶8:1483, p. 8H-35 citing Code Civ. Proc., §2031.300.)

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (Sinaiko).) Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

Here, defendant McKee provided responses to the discovery after plaintiff Speaker filed this motion to compel. Consequently, plaintiff Speaker’s motion to compel defendant McKee’s response to FI and RPD, set one, is DENIED AS MOOT.

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §2030.290, subd. (c).) Sanctions are similarly available against a party who unsuccessfully makes or opposes a motion to compel a response to RPD. (See Code Civ. Proc., §2031.300, subd. (c).)

Plaintiff Speaker’s request for sanctions is defective. Plaintiff Speaker’s notice of motion fails to comply with Code of Civil Procedure section 2023.040 which states, in relevant part, “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” The notices of motion filed by plaintiff Speaker do not identify every person, party, and attorney against whom the sanction is sought nor do they specify the type of sanction sought. Accordingly, plaintiff Speaker’s request for sanctions is DENIED.