On 28 March 2014, the motion of Richard Rudolph, et al. (“Defendants”) to compel EXL Prints, Inc.’s (“Plaintiff”) responses to the following discovery requests and for monetary sanctions was argued and submitted:

1) Set One of Defendant Richard Rudolph’s Special and Form Interrogatories, Request for Production of Documents (“RPD”) and Request for Admissions (“RFA”).

2) Set One of Defendant Monica Rudolph’s Special and Form Interrogatories, RPD and RFA.

3) Set One of Defendant Steve Ritter’s Special and Form Interrogatories, RPD and RFA.

4) Set One of Defendant Randy Garbez’s Special and Form Interrogatories, RPD and RFA.

Plaintiff filed formal opposition to the motion.

I. Background

On 14 August 2013, Plaintiff filed this action against Defendants alleging breach of fiduciary duty, conversion, theft, fraud and deceit, interference with contractual relations and business opportunities, accounting and credit, breach of contract, injunctive and declaratory relief, unjust enrichment, unlawful business practices, unfair competition, misappropriation of trade secrets, computer fraud and abuse, and RICO conspiracy. Plaintiff alleges that when EXL merged with Defendants’ former company, Tango Graphics, Inc., Defendants continued to pursue business personally and under Tango’s name using EXL’s resources, paying off Tango’s debts and diverting payments that should have gone to EXL. Plaintiff also alleges that after Defendants left EXL to form a competing business, Eyekick Visual Communications, LLC, they used EXL’s client database and ordering system, which Plaintiff claims to be trade secrets. Defendants’ demurrer to Plaintiff’s complaint was granted.

On 09 December 2013, Plaintiff filed a First Amended Complaint (“FAC”) alleging the same causes of action. Defendants’ demurrer to Plaintiff’s FAC was overruled on 18 February 2014.

II. Discovery Dispute

On 14 November 2013, Plaintiff was served by mail with Defendants’ discovery requests that are the subject of this matter.

On 18 December 2013, the parties’ counsel met and conferred by e-mail and Defendants granted an extension for Plaintiff’s reply through 02 January 2014.

On 31 December 2013 and 01 January 2014, the parties counsel again met and conferred and Defendants granted an additional extension for Plaintiff’s reply through 10 January 2014.

On 10 January 2014, Plaintiff’s counsel requested an additional extension, which was denied. The same day, Plaintiff’s counsel stated that responses to the remaining discovery requests would be served on 15 January 2014 and objected to the following requests: Richard Rudolph’s RPD Nos. 4-7, 16-18; Richard Rudolph’s RFA Nos. 33-34; Monica Rudolph’s RPD Nos. 4-7; Steve Ritter’s RPD Nos. 4-7; and Randy Garbez’s RPD Nos. 5-8.

On 21 January 2014, Defendant’s counsel attempted to meet and confer with Plaintiff’s counsel but received no response.

On 27 January 2014, Defendant’s counsel sent Plaintiff’s counsel a letter advising that a motion to compel would be filed if responses and documents were not received by 31 January 2014.

On 05 February 2014, Defendants filed this motion.

The Declaration of Plaintiff’s counsel, Eugene Flemate, states that Plaintiff served full responses to Defendants’ RFA on 17 March 2014 and to Defendants’ RPD on 20 March 2014. The declaration also states that full and complete responses to Defendants’ Form and Special Interrogatories will be completed by 24 March 2014 without objections. The declaration includes verifications for all responses but no proof of service.

III. Discussion

A. Motion to Compel Responses to Set One of Defendants’ Interrogatories

Interrogatories may be propounded upon an adverse party in an attempt to seek relevant information. (Code of Civil Procedure § 2017.010.) Absent an extension granted by counsel, a party must respond to interrogatories within 30 days. (Code of Civil Procedure § 2030.260.) The deadline is extended for requests served by mail, fax or overnight delivery. (Code of Civil Procedure §§ 1013, 2016.050 (service by mail within the state of California extends the time for response by five calendar days).) If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling response to the interrogatories. (Code of Civil Procedure § 2030.290(b).) A party that fails to successfully defend a motion to compel responses may not raise any objections, including privilege, when responding to these interrogatories. (Code of Civil Procedure § 2030.290(a).) If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling response to the interrogatories. (Code of Civil Procedure § 2030.290(b).) An objection can constitute a response. (See Korea Data Sys. Co. v. Sup. Ct. (4th Dist. 1997) 51 Cal.App.4th 1513, 1516.)

Despite Plaintiff’s responses being overdue, Defendants granted two extensions which Plaintiff failed to comply with. Therefore, Defendant’s motion is proper, as Plaintiff failed to file a timely response to Defendants’ form and special interrogatories. In defending the failure to do so, Plaintiff states that the volume of Defendants’ interrogatories and the time spent amending the original complaint and opposing the Defendants’ demurrer to the amended complaint warrant consideration. Plaintiff’s counsel also notes that he was involved in two trials during the month of February. The volume of discovery and time spent on other matters do not excuse the failure to meet multiple extension deadlines, however. Plaintiff stated that responses would be completed without objections by 24 March 2014. As no copy of said responses has been submitted to the Court and the Defendants’ motion remains on calendar, the Court presumes that Plaintiff has not served responses to Defendants’ interrogatories.

Defendants’ Motion to Compel Responses to Set One of Defendants’ Form and Special Interrogatories is GRANTED. Plaintiff shall respond to the discovery without objection and within 20 days of the date of the filing of this Order. Alternatively, within 20 days of the date of the filing of this Order, Plaintiff must verify and provide the Court with a copy of properly-served, verified, and code-compliant responses (without objection) completed on 24 March 2014, which would make the matter moot.

B. Motion to Compel Responses to Set One of Defendants’ RPD

Demands for inspection may be propounded upon an adverse party in an attempt to seek relevant information. (Code of Civil Procedure § 2017.010.) Absent an extension granted by counsel, a party must respond to the demand within 30 days. (Code of Civil Procedure § 2031.260.) If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it the party making the demand may move for an order compelling response to the demand. (Code of Civil Procedure § 2031.300(b).) A party that fails to serve a timely response waives any objection to the demand, including privilege. (Code of Civil Procedure § 2031.300(a).)

Despite Plaintiff’s responses being overdue, Defendants granted two extensions which Plaintiff failed to comply with. Therefore, Defendant’s motion is proper as applied to the RPD for which Plaintiff has failed to serve a timely response. Plaintiff timely served objections to Richard Rudolph’s RPD Nos. 4-7, 16-18; Richard Rudolph’s RFA Nos. 33-34; Monica Rudolph’s RPD Nos. 4-7; Steve Ritter’s RPD Nos. 4-7; and Randy Garbez’s RPD Nos. 5-8, preserving the right to object to those requests. Plaintiff claims that full responses to Defendants’ RPD were served on 20 March 2014. Plaintiff’s opposition to this motion included a copy of said responses and a proof of service confirming the responses were personally served on Defendants’ counsel on 20 March 2014. As Plaintiff provided verified responses to all pending RPDs stating it would fully comply or that the documents do not exist and raised no additional objections, the responses are code-compliant.

Defendants’ Motion to Compel Responses to Set One of Defendants’ RPD is DENIED as the matter is moot.

C. Motion to Deem Admitted Set One of Defendants’ RFA

A party served with a request for admission must serve its response within 30 days. (Code of Civil Procedure § 2033.250(a).) The deadline is extended for requests served by mail, fax or overnight delivery. (Code of Civil Procedure §§ 1013, 2016.050 (service by mail within the state of California extends the time for response by five calendar days).)

Code of Civil Procedure § 2033.280 states:

“If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230.

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”

The motion should include a notice of the motion and motion, a memorandum of points and authorities, a supporting declaration, a copy of the requests for admission and proof of service, and the proposed order. (CEB, California Civil Discovery Practice, § 9.76.) The motion should state that the requests were properly served and identify the date they were served. (Code of Civil Procedure, §§ 2033.280(c), 2033.070.) The motion should state the date by which the responding part was to respond and the reason any response received was insufficient. (Code of Civil Procedure, §§ 2033.250, 2033.280.)

Here, Plaintiff timely served objections to Richard Rudolph’s RFA Nos. 33-34, preserving the right to object to those requests. Plaintiff claims that full were served on 17 March 2014. Plaintiff’s opposition to this motion included a copy of Plaintiff’s responses to the pending RPD and a proof of service confirming the Defendant’s counsel was served with the responses by mail on 17 March 2014. As Plaintiff admitted, denied, or claimed lack of sufficient information or knowledge and raised no additional objections, the responses are code-compliant. (Code of Civil Procedure §§ 2033.280(c), 2033.220.)

Defendants’ Motion to Compel Responses to Set One of Defendants’ RFA is DENIED as the matter is moot.

C. Plaintiff’s Requests for Monetary Sanctions

Code of Civil Procedure, § 2023.040 states:

“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 notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

CEB, California Civil Discovery Practice, §15.46a: “Notice of Motion and Motion” states:

“As a practical matter, the motion and notice of motion are usually combined into one document . . . . The motion, an application to a court to make an order (CCP §1003), must contain all of the following (Cal Rules of Ct 3.1112(d)):

• Identity of the party or parties bringing the motion;

• Name of the parties to whom the motion is addressed; and

• Brief statement of the basis for the motion and the relief sought, including whether the moving party requests sanctions, against whom the sanction is sought and the type of sanctions (CCP §2023.040).

The notice of motion must contain all of the following information (CCP §1010):

• Date, time, and place of the hearing;

• Grounds on which the motion is being made, including whether the moving party requests sanctions, against whom the sanction is sought, and the type of sanctions (CCP §2023.040); and

• Papers and other items supporting the motion.

In addition, the notice of motion must state ‘in the opening paragraph the nature of the order being sought and the grounds for issuance of the order. Cal Rules of Ct 3.1110(a).

JUDGE’S PERSPECTIVE: All relief sought by the motion, including whether the moving party requests sanctions, should be stated in the notice of motion and, if possible, identified in the title of the motion, not just argued in the supporting memorandum.”

Defendant cites Code of Civil Procedure Sections 2030.290(c), 2031.300(c), 2033.280(b) and 2023.010(d) in support of its request. Granting Defendants’ request for monetary sanctions would be inappropriate as the Plaintiff’s agreement to provide full responses to Defendants’ discovery requests makes the issues in the motion moot.

Section 2030.290(c), applying to interrogatories, and Section 2031.300(c), applying to RFAs, require the imposition of monetary sanctions against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to either form of discovery. However, Plaintiff has not “unsuccessfully opposed” Defendant’s motion to compel responses to its interrogatories, RPDs and RFAs. If Plaintiff had filed no papers in opposition, it would have been inappropriate for the court to award sanctions under these foregoing code sections. Instead, Plaintiff has committed to providing properly-served, verified, code-complaint responses to Defendants’ interrogatories and has already done so for the RPDs.

Section 2033.280(b) provides that the party propounding a request for admission may move for a monetary sanction when a party fails to serve a timely response to the request. However, as the Plaintiff served a response to the RFA in substantial compliance with Section 2033.220 prior to this hearing, a monetary sanction is not appropriate. (Code of Civil Procedure § 2033.280(c).)

Finally, Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

As the Defendant’s motion is moot in light of Plaintiff’s agreement to provide full responses, the request for monetary sanctions is DENIED.

IV. Conclusion

Defendants’ Motion to Compel Responses to Set One of Defendants’ Form and Special Interrogatories is GRANTED. Plaintiff shall respond to the discovery without objection and within 20 days of the date of the filing of this Order. Alternatively, within 20 days of the date of the filing of this Order, Plaintiff must verify and provide the Court with a copy of properly-served, verified, and code-compliant responses (without objection) completed on 24 March 2014, which would make the matter moot.

Defendants’ Motion to Compel Responses to Set One of Defendants’ RPD is DENIED as the matter is moot.

Defendants’ Motion to Compel Responses to Set One of Defendants’ RFA is DENIED as the matter is moot.

Defendants’ request for monetary sanctions is DENIED.