Case Name: Olawunmi Hassan v. Great Mall, et al.
Case No.: 2018-CV-324469

Motion to Compel Responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents and Request for Monetary Sanctions by Defendant Milpitas Mills Limited Partnership

Factual and Procedural Background

This is a personal injury case. On August 14, 2017, plaintiff Olawunmi Hassan (“Plaintiff”) (self-represented) visited and purchased eye glasses from Vision Insight at the Great Mall of Milpitas. (See First Amended Complaint [“FAC”] at ¶ 7.) Shortly after his visit, Plaintiff slipped and fell on the ground as a result of fruits on the hallway floor. (Id. at ¶¶ 8, 26.) As a result of the incident, Plaintiff sustained injuries to his back, knees, and right shoulder. (Id. at ¶ 13.)

On April 3, 2018, Plaintiff filed the operative FAC against defendants alleging a single claim for negligence.

On June 18, 2018, defendant Milpitas Mills Limited Partnership (“Defendant”) served Plaintiff with form interrogatories (“FI”), special interrogatories (“SI”), and request for production of documents (“RPD”). (Masterson Decl., ¶¶ 3-5, Exs. B-D.) Discovery responses were due on July 23, 2018. Plaintiff failed to serve timely discovery answers or request an extension of time to serve responses.

On August 13, 2018, defense counsel sent a letter to Plaintiff requesting complete and verified discovery responses. (Masterson Decl., ¶ 8, Ex. E.) Plaintiff thereafter served discovery responses interposing objections with factual answers. Defendant received discovery responses in August 2018. (Id. at Ex. G.)

On September 10, 2018, defense sent a meet and confer letter to Plaintiff addressing the discovery responses. (Masterson Decl., Ex. G.) The letter focused on discovery responses to FI Nos. 1.1, 2.1-2.7, 2.12, 4.1, 4.2, 6.1-6.7, 7.1-7.3, 8.1-8.8, 9.1, 9.2, 10.1-10.3, 11.1, 11.2, 12.1-21.7, 13.1, 13.2, 14.1, 14.2, SI Nos. 2-31, and RPD Nos. 1-18. (Ibid.) Defendant argued the discovery responses were untimely served and thus the objections raised had been waived. (Ibid.) To the extent that any factual responses were also served, Defendant claimed such answers were either non-responsive or incomplete. (Ibid.) Defendant thus requested that Plaintiff serve verified objection-free supplemental responses. (Ibid.)

Defendant did not receive any supplemental discovery responses from Plaintiff. (Masterson Decl., ¶ 11.) Since the parties have been unable to informally resolve this discovery dispute, Defendant now seeks intervention from the Court.

Currently before the Court is Defendant’s motion to compel responses to FI, SI, and RPD because Plaintiff did not serve timely discovery answers and all objections have been waived. (See Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Defendant also seeks an award of monetary sanctions in conjunction with the motion. Plaintiff filed written opposition. Defendant filed reply papers. No trial date has been set.

Motion to Compel Responses

Defendant moves to compel responses to FI Nos. 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 4.1, 4.2, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 7.1, 7.2, 7.3, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 9.1, 9.2, 10.1, 10.2, 10.3, 11.1, 11.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 13.2, 14.1, 14.2, SI Nos. 2-17, 20-31, and RPD Nos. 1-18 because Plaintiff did not serve timely responses and all objections have been waived.

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses to the interrogatories. (Code Civ. Proc., § 2030.290, subd. (b).) Similarly, if a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response, the party making the demand may move for an order compelling a response to that demand. (Code Civ. Proc., § 2031.300, subd. (b).)

If the party to whom interrogatories (or inspection demands) are directed fails to serve a timely response, that party waives any objections to the discovery. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) There is no limitation period (see Code Civ. Proc., §§ 2030.290, 2031.300) or meet and confer requirement (see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411-412; Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906 (Leach)) for bringing a motion to compel an initial response. The moving party need only show that the discovery was properly propounded and a timely response was not served. (See Leach, supra, 111 Cal.App.3d at pp. 905-906.)

Here, Defendant served Plaintiff with FI, SI, and RPD on June 18, 2018. (Masterson Decl., ¶¶ 3-5, Exs. B-D.) Discovery responses were due on July 23, 2018. Plaintiff did not serve timely responses or request an extension of time. Instead, Plaintiff served untimely discovery responses sometime in August 2018 which included objections and factual answers. However, as Plaintiff served untimely responses, all objections have been waived. In addition, despite the argument raised in opposition, Defendant was not required to meet and confer before filing this motion. Regardless, it appears Defendant did send a meet and confer letter to Plaintiff requesting supplemental discovery responses. As Plaintiff did not serve timely discovery answers, Defendant is entitled to objection-free discovery responses.

Accordingly, the motion to compel a response to FI Nos. 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 4.1, 4.2, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 7.1, 7.2, 7.3, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 9.1, 9.2, 10.1, 10.2, 10.3, 11.1, 11.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 13.2, 14.1, 14.2, SI Nos. 2-17, 20-31, and RPD Nos. 1-18 is GRANTED. Plaintiff shall serve Defendant with verified, code compliant responses, without objections, and produce all responsive documents within 20 calendar days of service of this Order.

Request for Monetary Sanctions

Defense counsel requests an award of monetary sanctions in conjunction with the motion to compel. The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel responses to interrogatories or inspection demands, 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., §§ 2030.300, subd. (d), 2031.300, subd. (c).)

Defendant makes a code compliant request for monetary sanctions against Plaintiff. Plaintiff was not substantially justified in opposing the motion. Nor are there circumstances which make imposing the sanction to be unjust.

Defendant seeks a total of $2,760 in monetary sanctions. (See Notice of Motion, p. 2; Masterson Decl., ¶ 18.) This amount is based on defense counsel’s time preparing the motion, preparing reply papers, the filing fee for the motion ($60), and traveling to court to attend any oral argument. (Masterson Decl., ¶ 18.) As an initial matter, the Court does not award anticipated expenses as it may become unnecessary for the parties to attend oral argument if both sides submit on the Court’s tentative order. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551 [the court awards sanctions only for expenses actually incurred, not for anticipated expenses].) In addition, the Court finds the requested amount to be slightly excessive given the issues raised by the motion. The Court thus will reduce the amount and award $1,185 in sanctions ($225 per hour for 5 hours + $60 filing fee).

Therefore, the request for monetary sanctions is GRANTED IN PART. Plaintiff shall pay $1,185 in monetary sanctions to Defendant within 20 calendar days of service of this Order.

The Court will prepare the Order.