2013-00155479-CU-WT

Jaroslaw Waszczuk vs. The Regents of the University of Ca.

Nature of Proceeding: Motion to Compel 1) Production 2) Special 3) Form-Gen. 4) Form-Empl.

Filed By: Bardzell, Daniel J.

Defendant Regents of the University of California’s unopposed motion to compel responses and to deem requests for admission admitted is granted as set forth below.

Interrogatories and Request for Production

The motion is granted.

No later than November 21, 2018, Plaintiff Jarolsaw Waszczuk shall serve verified responses, without objections, to Plaintiff’s form and special interrogatories (sets one) and requests for production (set one).

The Court received a letter from Plaintiff purportedly attaching his answers to special interrogatories. The Court simply notes that no responses to form interrogatories or request for production were attached to the letter and in any event, service of responses after the motion was filed does not moot the motion. Defendant is still entitled to an order. To be clear, a motion is “made” when it is filed and served. (CCP

§ 1005.5.) However, to the extent that any responses served after the motion was filed comply with the above order, they need not be re-served.

Defendant’s request for sanctions in connection with the motion to compel responses is denied as the motion was unopposed. Although California Rules of Court, Rule

3.1348 purports to authorize sanctions if the 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 C.R.C. 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.

Request for Admissions

Defendant’s unopposed motion to deem matters in the requests for admission admitted is granted, unless Plaintiff Jarolsaw Waszczuk serves, “before the hearing on the motion,” proposed responses that are in substantial compliance with CCP § 2033.220. (CCP § 2033.280(c).)

Defendant’s request for mandatory monetary sanctions is connection with the motion to deem matters admitted is granted. (CCP § 2033.280(c).) However, the requested amount of $5,200 for this straightforward discovery motion is plainly excessive.

Plaintiff Jarolsaw Waszczuk shall pay to Defendant a mandatory monetary sanction in the amount of $520 ($260/hr x 2 hrs). The monetary sanction is to be paid on or before December 1, 2018. If the sanction is not paid by that date, Defendant may prepare for the Court’s signature a formal order granting the sanctions, which may be enforced by a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

The Court denies Defendant’s alternate requests for issue, evidentiary, and/or terminating sanctions at this time. The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.” (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal. App. 2d 300, 304.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 793) The discovery sanction cannot put the propounding party in a better position than they would have been in if they had received the discovery. (Puritan Insurance Co. v Superior Court (1985) 171 Cal. App.3d 877, 884.)

Here, given that this is the first order with respect to the subject discovery, the drastic remedy of terminating sanctions would be punitive. Further, while Defendant references Plaintiff’s “vexatious” conduct in this action, that conduct has nothing to do with the instant motion and in any event, is not a basis for discovery sanctions. Such ad hominem comments serve no useful purpose in educating the court as to the party’s position, and distract more than they advocate. In short, they are more cathartic than tactical.

Finally, the Court declines Defendant’s requests that the Court impose a deadline for Plaintiff to seek leave to file a third amended complaint. Defendant indicates that Plaintiff has represented that he intends to seek leave to file a third amended complaint which is represented as being nearly 300 pages long. Plaintiff’s decision to seek leave or not seek leave is his to make and the Court will not impose a deadline as part of this discovery motion.

The notice of motion provides the incorrect time and location for the hearing. This

matter has been assigned to Department 53 for law and motion purposes and Department 53 hears law and motion matters at 2 p.m. Moving counsel is directed to immediately provide notice to Plaintiff of the correct time and location of the hearing.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.