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The Santa Clara Superior Court records indicate the attorney for defendant is John P. McDonnell.

On 28 March 2014, the motions of plaintiff On Demand Circuits Services, Inc. (“Plaintiff”) (1) to compel responses to Special Interrogatories, Set One (“SI”), to compel further responses to the SI and for monetary sanctions, and (2) to compel further responses to Request for Production of Documents, Set One (“RPD”), to compel Defendant Coastal Circuits, Inc. (“Defendant”) to produce documents it already agreed to produce, and for monetary sanctions were argued and submitted.

Defendant filed a formal opposition to the motion to compel regarding the SI, in which it also requests monetary sanctions.

Defendant did not file an opposition to the motion to compel regarding the RPD.

Statement of Facts

This is a contract action arising out of Defendant’s alleged failure to pay for raw materials used in the production of printed circuit boards. Plaintiff alleges that in July 2012, it entered into an oral contract to provide the raw materials in exchange for Defendant’s promise to pay roughly $72,000. Plaintiff further alleges that on or about 9 August 2012, Defendant breached the agreement by failing to pay. On 24 May 2013, Plaintiff filed its complaint asserting six causes of action against Defendant for breach of an executed oral contract, money had and received, money paid, money lent, account stated, and open book account.

On 5 July 2013, Defendant filed a cross-complaint against Plaintiff asserting two causes of action for conversion and trespass, which is based upon the allegation that on or about December 2012, Plaintiff entered Defendant’s business and seized some of the unpaid-for raw materials.

Discovery Disputes

On 14 October 2013, Plaintiff served the SI and RPD on Defendant. On 14 November 2013, the parties agreed to extend the time to respond to the SI and RPD to 2 December 2014. On 3 December 2014, Defendant served responses to the SI. No responses to the RPD were served on this date.

On 5 December 2013, Plaintiff’s counsel sent defense counsel a detailed meet and confer letter, indicating that Defendant’s responses to the SI were untimely, any objections were waived, and the responses were incomplete. With regard to the RPD, Plaintiff’s counsel stated that he had not received any responses. Plaintiff’s counsel requested amended responses to the SI and initial responses to the RPD on or before 16 December 2013.

On 18 December 2013, defense counsel sent a reply letter, indicating that he thought the responses to the SI were timely and thus, Defendant’s objections were not waived. Defendant agreed to provide amended responses to the SI and initial responses to the RPD on or before 13 January 2014. On that same day, Plaintiff’s counsel sent a letter in response, reiterating that Defendant’s responses to the SI were untimely and requesting amended responses to the SI and initial responses to the RPD no later than 7 January 2014. On 13 January 2014, Defendant served amended responses to the SI and its initial responses to the RPD.

On 22 January 2014, Plaintiff’s counsel sent a meet and confer letter to defense counsel, indicating that the amended responses to the SI were deficient. Plaintiff’s counsel argued that Defendant had not provided responses to a number of the SI and the remaining responses were incomplete. He further contended that the responses to the RPD were evasive and incomplete. On 30 January 2014, defense counsel sent a letter in response, agreeing to provide responses to some of the missing SI and amended responses to the RPD.

On 3 February 2014, Plaintiff’s counsel sent another meet and confer letter. He indicated that the parties had reached an impasse concerning the SI. With regard to the RPD, he requested that Defendant provide amended responses without objection. On 6 February 2014, defense counsel sent another meet and confer letter, reiterating that he did not believe objections had been waived.

On 10 February 2014, Plaintiff’s counsel sent one final meet and confer letter, indicating that he would file a motion to compel further responses to the RPD if Defendant did not agree to serve amended responses. No amended responses were served.

Dissatisfied with the progress of the meet and confer process, on 13 February 2014, Plaintiff filed a motion to compel responses to SI Nos. 36-138 and to compel further responses to SI Nos. 12, 15, 18, and 21. Then, on 28 February 2014, Plaintiff filed a motion to compel a further response to RPD No. 34 and to compel compliance with Defendant’s statements of compliance in regards to RPD Nos. 29, 35, 37, 39-44, and 46. Defendant did not file an opposition to this motion. On 17 March 2014, Defendant filed its opposition to the motion to compel regarding the SI. On 20 March 2014, Plaintiff filed reply briefs in support of each motion.

Discussion

I. Motion to Compel Responses to the SI

Plaintiff moves to compel initial responses to SI Nos. 36-138. Although Defendant responded to SI Nos. 1-35 in this set of interrogatories, it provided no responses whatsoever to SI Nos. 36-138. Defendant contends that no responses are necessary.

The party to whom interrogatories has been propounded is required to serve a response within 30 days, or on any later date to which the parties have agreed. (See Code Civ. Proc., §§ 2030.260, 2030.270.) If the party to whom interrogatories are directed fails to serve a timely response, that party waives any objection to the discovery. (Code Civ. Proc., § 2030.290, subd. (a).) Additionally, the propounding party may move for an order compelling a response. (Code Civ. Proc., § 2030.290, subd. (b).) There is no time limit on filing the motion and no meet and confer requirement for bringing a motion to compel an initial response. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-412.) The moving party must only show that the discovery was properly propounded and a timely response was not served. (Id.)

Defendant contends that no responses to SI Nos. 36-138 are required because Plaintiff did not send a declaration of necessity for additional discovery. Defendant’s argument lacks merit.

If a declaration of necessity has not been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection on the ground that the limit has been exceeded. (See Code Civ. Proc., § 2030.030, subd. (c).)

Defendant, however, never served a written response to SI Nos. 36-138 containing an objection on the ground that Plaintiff had exceeded the limit for specially prepared interrogatories. Furthermore at this juncture, any such objection would necessarily be untimely and therefore, waived. (See Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 273.)

Even assuming Defendant had objected in a timely fashion, Plaintiff indicates that it did in fact serve a declaration of necessity. In this regard, Plaintiff submits a proof of service by mail of its declaration of necessity. (See Sherman Decl., Ex. 2.)

A valid proof of service creates a rebuttable presumption that papers were properly served by mail and therefore received. (Dill v. Berquist Construction Co., Inc. (1994) 24 Cal.App.4thh 1426, 1441-1442.) The rebuttable presumption can only be dispelled by contradictory evidence. (Craig v. Brown & Root (2000) 84 Cal.App.4th 416, 421.) Once the presumption is dispelled, the trier of fact shall determine the existence or non-existence of the fact from the evidence and any appropriate inferences that may be drawn from it. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479.)

The proof of service filed with the moving papers states that on 14 October 2013, in Pleasanton, nonparty Kristina Hudelson, whose business address is in Pleasanton and who is over the age of 18 and a resident of Alameda County, placed the declaration of Steve R. Sherman for additional discovery into a sealed envelope addressed to Defendant and deposited said envelope into the mail with the postage thereon fully prepaid. This proof of service is valid because it contains all of the elements required by Code of Civil Procedure section 1013a. Therefore, the proof of service creates a rebuttable presumption that the declaration was properly served by mail to, and received by, Defendant.

Defendant argues that Plaintiff never served a declaration for additional discovery because no such declaration was ever received. Therefore, the Court must weigh Defendant’s denial against the inference arising from the proof of service.

Upon weighing the facts, the Court finds that the evidence favors Plaintiff’s position that it properly served the declaration by mail. On the same day, Ms. Hudelson prepared a nearly identical proof of service with regard to the SI. Defendant acknowledges that it received the SI. While it is possible that the post office properly delivered the SI, but did not deliver the declaration, it is unlikely. Therefore, the Court finds that the declaration was properly served.

In sum, Defendant did not formally object on the ground of excessive special interrogatories, and even if it had, the objection would have been without merit. Therefore, the motion to compel responses to SI Nos. 36-138 is GRANTED.

II. Motion to Compel Further Responses to the SI

Plaintiff moves to compel further responses to SI Nos. 12, 15, 18, and 21. Defendant contends that amended responses are unnecessary.

A. Legal Standard

A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (Cal. Code Civ. Proc., § 2030.300, subd. (a).) The statute does not require any showing of good cause in support of a motion. (See Cal. Code Civ. Proc., § 2030.300; see also Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.) The burden is on the responding party to justify any objections or failure to fully answer. (See Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

B. Meet and Confer

A motion to compel further responses to interrogatories shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b).) A reasonable and good faith attempt at informal resolution entails something more than argument with opposing counsel. It requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) The court has discretion to deny discovery absent efforts to meet and confer, but must consider whether a less drastic remedy is appropriate given the circumstances presented. (See Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1439, Obregon v. Superior Court, supra, 67 Cal.App.4th at p. 434.)

Here, Defendant argues that Plaintiff failed to properly meet and confer because Plaintiff’s counsel did not reference the SI in his final meet and confer letter on 10 February 2014. Defendant’s argument is without merit. Plaintiff’s counsel sent four meet and confer letters, consistently reiterating Plaintiff’s position that Defendant’s objections to the SI were waived and substantive responses were required. In defense counsel’s responses to these letters, he consistently reiterated Defendant’s position that the responses to the SI were timely. Plaintiff was under no obligation to continue to meet and confer once it became clear that Defendant would not agree to provide amended responses without objection. (Obregon v. Superior Court, supra, 67 Cal.App.4th at p. 431.) Therefore, the Court finds Plaintiff’s meet and confer efforts were sufficient.

C. Merits of the Motion

SI Nos. 12, 15, 18, and 21 ask Defendant to identify all documents supporting its denial of the allegations in paragraphs 4-7 of Plaintiff’s complaint. Defendant responded to each SI by stating, “In lieu of identifying documents, Defendant is producing any responsive documents in response to Plaintiff’s Request for Production of Documents.”

Plaintiff contends that Defendant cannot produce documents in lieu of identifying them because its untimely responses to the SI waived all of its objections. Defendant argues that it may respond to the SI in this manner.

Code of Civil Procedure section 2030.230 provides that if an answer to an interrogatory would necessitate making a compilation of the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making the compilation would be substantially the same for the propounding party as for the responding party, it is a sufficient answer to the interrogatory to refer to section 2030.230 and to specify the writings from which the answer may be derived or ascertained.

Defendant may not exercise the option provided by section 2030.230 for several reasons. First, in its response, Defendant did not refer to section 2030.230. Second, Defendant has not submitted any evidence indicating that the interrogatories necessitate making a compilation of documents and/or that the burden of preparing the compilation of documents would be substantially the same for Plaintiff as for itself. Finally, as discussed more extensively above, Defendant’s response to the SI was untimely. If a responding party fails to serve a timely response, the responding party waives any right to exercise the option to produce writings under section 2030.230. (Code Civ. Proc., § 2030.290, subd. (a).) Therefore, Defendant’s responses to SI Nos. 12, 15, 18, and 21 are not code-compliant.

D. Conclusion

Based on the foregoing, the motion to compel further responses to SI Nos. 12, 15, 18, and 21 is GRANTED.

III. Motion to Compel a Further Response to and Compliance with the RPD

Plaintiff moves to compel a further response to RPD No. 34 and compliance with Defendant’s statements in compliance in regards to RPD Nos. 29, 35, 37, 39-44, and 46. Defendant did not file an opposition to the motion.

A. Motion to Compel a Further Response to RPD No. 34

Plaintiff moves to compel a further response to RPD No. 34 on the ground that Defendant provided no substantive response and its objections have been waived.

A party propounding a request for production of documents may move for an order compelling further responses if it deems that an objection in the response is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) A motion for an order compelling further responses to the request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) In order to establish good cause, the burden is on the moving party to show relevance to the subject matter and specific facts justifying the discovery. (See Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Once a showing of good cause is made, the burden shifts to the opposing party to justify his or her objections. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

RPD No. 34 seeks all documents in support of the allegations contained in paragraph 2 of Defendant’s cross-complaint. Defendant objected on a number of grounds and provided no substantive response.

Plaintiff contends that that documents which pre-date the July 2012 transaction would demonstrate the historical course of dealing between the parties before the dispute arose, and would fill in any gaps in the contract terms. Documents concerning the parties’ historical course of dealing would indisputably assist Plaintiff in proving its claim for breach of contract. (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [holding information is relevant for the purposes of discovery if it might reasonably assist a party in evaluating the case, preparing for trial or facilitating settlement].) Therefore, good cause exists for RPD No. 34 and the burden shifts to Defendant to justify its objections.

As an initial matter, Defendant does not oppose the motion and therefore, does not meet its burden to justify its objections.

In any case, Defendant’s objections to the RPD are waived. Plaintiff served the RPD on 14 October 2013. On 14 November 2013, the parties agreed to extend the time to respond to the RPD until 2 December 2014. Defendant did not serve its responses until 13 January 2014. Therefore, the responses were untimely. A party who serves an untimely response to a request waives all objections to the request. (See Code Civ. Proc., § 2031.300, subd. (a).) Therefore, as Defendant’s objections are waived, the motion to compel a further response to RPD No. 34 is GRANTED.

B. Motion to Compel Compliance

Plaintiff moves, pursuant to Code of Civil Procedure section 2031.320, to compel compliance with Defendant’s statements in compliance in regards to RPD Nos. 29, 35, 37, 39-44, and 46, on the ground that Defendant has yet to produce any of the documents requested.

Under Code of Civil Procedure section 2031.320, “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling …, thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320.)

RPD No. 29 seeks documents concerning Defendant’s fifth affirmative defense. RPD Nos. 35, 37, 39-44, and 46 ask for documents concerning the allegations of Defendant’s cross-complaint. Defendant responded to RPD No. 29 by stating that it did not currently have any responsive documents in its possession and it objected to RPD No. 42 on a number of grounds. It responded to RPD Nos. 35, 37, 39-41, 43-44, and 46 by stating that it would produce any responsive document in its possession, custody and control.

With regard to RPD Nos. 29 and 42, Defendant did not state that it would comply with the requests. Therefore, the motion to compel compliance with Defendant’s statements of compliance in regards to RPD Nos. 29 and 42 is DENIED.

With regard to RPD Nos. 35, 37, 39-41, 43-44, and 46, Plaintiff contends that Defendant has produced no documents responsive to these RPD. Defendant does not oppose the motion and thus, does not provide any evidence that it has produced responsive documents. Therefore, the motion to compel compliance with Defendant’s statements of compliance in regards to RPD Nos. 35, 37, 39-41, 43-44, and 46 is GRANTED.

V. Monetary Sanctions

A. Plaintiff’s Requests for Sanctions
B.
1. Motion to Compel Responses to SI

Plaintiff makes a code-compliant request for monetary sanctions against Defendant in the amount of $1,680.00 pursuant to Code of Civil Procedure section 2030.290. The Court shall impose a monetary sanction against any person who unsuccessfully makes or opposes a motion to compel a response to an interrogatory, 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).) Here, Defendant was unsuccessful in its opposition, and the Court finds that it did not act with substantial justification. No other circumstances make the imposition of sanctions unjust. Therefore, Plaintiff is entitled to an award of monetary sanctions against Defendant in connection with this motion.

Plaintiff’s counsel, Steve Sherman, avers that he spent 3 hours preparing this motion at a billing rate of $360 per hour ($1,080). He requests an additional $540 for his anticipated reply and court appearance. The Court does not award sanctions for expenses not yet incurred. (See Cal. Code Civ. Proc. § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, the anticipated attorney fees are not compensable. The hourly rate and hours spent are otherwise reasonable. Finally, Plaintiff seeks to recoup the $60 filing fee. This cost constitutes a reasonable expense. Accordingly, Plaintiff’s request for sanctions is GRANTED IN PART in the amount of $1,140.

2. Motion to Compel Further Responses to the RPD and Compel Compliance with the RPD

Plaintiff makes a code-compliant request for monetary sanctions against Defendant in the amount of $1,680. The Court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to a request or a motion to compel compliance with a party’s statement of compliance, 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., §§ 2031.310, subd. (h), 2031.320, subd. (b).) Defendant was largely unsuccessful in its opposition, and the Court finds that it did not act with substantial justification. No other circumstances make the imposition of sanctions unjust. Therefore, Plaintiff is entitled to an award of monetary sanctions against Defendant.

Plaintiff’s counsel, Steve Sherman, avers that he spent 3 hours preparing this motion at a billing rate of $360 per hour ($1,080). He requests an additional $540 for his anticipated reply and court appearance. The Court does not award sanctions for expenses not yet incurred. (See Cal. Code Civ. Proc. § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services, supra, 186 Cal.App.4th at p. 1551.) Consequently, the anticipated attorney fees are not compensable. The hourly rate and hours spent are otherwise reasonable. Finally, Plaintiff seeks reimbursement for the $60 filing fee. This cost constitutes a reasonable expense. Accordingly, Plaintiff’s request for sanctions is GRANTED IN PART in the amount of $1,140.

C. Defendant’s Request for Sanctions
D.
Defendant requests a total of $4,900 for opposing Plaintiff’s motion to compel responses to the SI. As noted above, the Court shall impose a monetary sanction against any person who unsuccessfully makes or opposes a motion to compel a response to an interrogatory, 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).) Here, Plaintiff’s motion to compel responses to the SI was successful. Therefore, Defendant’s request for an award of monetary sanctions against Plaintiff is DENIED.

Conclusion and Order

Plaintiff’s motion to compel responses to the SI is GRANTED. Accordingly, within 20 calendar days of the date of the filing of this Order, Defendant shall serve verified code-compliant responses to SI Nos. 36-138, without objection.

Plaintiff’s motion to compel further responses to SI Nos. 12, 15, 18, and 21 is GRANTED. Accordingly, within 20 calendar days of the date of the filing of this Order, Defendant shall serve verified code-compliant further responses to SI Nos. 12, 15, 18, and 21, without objection.

Plaintiff’s motion to compel a further response to RPD No. 34 is GRANTED. Accordingly, within 20 calendar days of the date of the filing of this Order, Defendant shall serve a verified code-compliant further response to RPD No. 34, without objection, and produce documents in accordance with the response.

Plaintiff’s motion to compel compliance with Defendant’s statements of compliance in regards to the RPD is GRANTED IN PART and DENIED IN PART. The motion is DENIED in regards to RPD Nos. 29 and 42. The motion is GRANTED in regards to RPD Nos. 35, 37, 39-41, 43-44, and 46. Defendant shall produce all remaining responsive documents in conformity with its statements of compliance provided in response to RPD Nos. 35, 37, 39-41, 43-44 and 46 within 20 calendar days of the date of the filing of this Order.

Plaintiff’s request for monetary sanctions against Defendant in connection with the motion to compel responses to the SI is GRANTED IN PART in the amount of $1,140. Accordingly, within 20 calendar days of the date of the filing of this Order, Defendant shall pay $1,140 to Plaintiff’s counsel.

Plaintiff’s request for monetary sanctions against Defendant in connection with the motion to compel further responses to the RPD and to compel compliance with Defendant’s statements of compliance is GRANTED IN PART in the amount of $1,140. Accordingly, within 20 calendar days of the date of the filing of this Order, Defendant shall pay $1,140 to Plaintiff’s counsel.

Defendant’s request for monetary sanctions against Plaintiff is DENIED.