Do v. Do, et al.		CASE NO. 113CV249863
DATE: 25 April 2014	TIME: 9:00	LINE NUMBER: 26

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 24 April 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 April 2014, the motion of Ha Do (“Plaintiff”) to compel responses to Form Interrogatories, Set One, deem matters admitted in Requests for Admissions, Set One, and for monetary sanctions was argued and submitted.  Teffanie Do (“Defendant”) did not file formal opposition to the motion.[1]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

I.             Background

Plaintiff filed this action on 22 July 2013, which asserts causes of action for breach of contract, common counts, unjust enrichment, fraud, and unfair business practices.  Allegedly, Plaintiff made a total of ten loans to Defendant between the period of 13 October 2008 and 10 April 2012 in various increments for a total of $90,538.25.  Plaintiff’s complaint claims that the Defendant promised to repay the loan “within 1 or 2 months” but only repaid $10,000.00 on 15 December 2012 and $5,000.00 on 07 January 2013.

Plaintiff’s complaint alleges that no interest was charged on the loan and now requests the remaining balance of the loan, $75,538.25, be repaid with interest.

II.            Discovery Dispute

On 30 December 2013, Plaintiff served Defendant with Form Interrogatories, Set One and Requests for Admissions, Set One.

On 07 February 2014, Plaintiff’s counsel attempted to meet and confer with Defendant by sending a letter via first class mail requesting responses to the pending discovery no later than 04 March 2014.

Plaintiff alleged that as of 20 March 2014, the day this motion was filed, no responses to the Form Interrogatories, Set One or Requests for Admissions, Set One have been received.

 

III.           Discussion                                                                                                      

               A.           Motion to Compel Responses to Plaintiff’s Form Interrogatories, Set One

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.)  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.)

Although no meet and confer is required for this motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)   If no response has been made to discovery requests within the time permitted by Code of Civil Procedure, the “meet and confer” rule does not come into play, and compliance therewith is not prerequisite to a motion to compel answers.  See Code of Civil Procedure, § 2030.290(b); see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 404; Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 906.)

Defendant failed to respond within the time allotted by the Code of Civil Procedure or by Plaintiff’s extension to the date of 04 March 2014.  The form interrogatories seek basic information, such as Defendant’s name, address, and ability to communicate in English, which are relevant to this action.  Defendant has made no argument as to why responses to the interrogatories have not been served.

Plaintiff’s motion to compel answers to Form Interrogatories, Set One is GRANTED.  Defendant shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

               B.           Motion to Deem Matters Admitted in Plaintiff’s Requests for Admissions, Set One

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.)

Plaintiff’s RFAs seek admissions regarding the various loans allegedly provided to Defendant, the amount Defendant has repaid, that Defendant is in the business of lending money to others, and that Defendant has notes from others that are outstanding and have not been repaid.  The RFAs are permissible.[3]  Defendant has failed to respond to Plaintiff’s propounded RFAs within the time allotted by the Code of Civil Procedure or by Plaintiff’s extended deadline and has provided no justification for failing to do so.

Plaintiff’s motion deeming Requests for Admissions, Set One, to be admitted is GRANTED.  The requests are deemed ADMITTED.

               C.           Motion for Monetary Sanctions

Plaintiff makes a request for monetary sanctions.  The request, while somewhat problematic, is code-compliant.

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.”

Plaintiff cites Code of Civil Procedure section 2030.290(c) in support of the request for sanctions.  This section only applies to a party which unsuccessfully makes or opposes a motion to compel a response to interrogatories.  Defendant has done neither here.[4]  A party filing a discovery motion for which no opposition was filed may not recover sanctions under Code of Civil Procedure, §§ 2030.300(d), 2031.310(h), 2031.320(b) and 2033.290(d) because the responding party did not “. . . unsuccessfully make[ ] or oppose[ ]. . .” the motions.[5]   Since no opposition was filed, the correct citation of authority would have been Rule of Court 3.1348(a) which states:

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

In the future, counsel would be advised to add the following language in the notice of your motion: “If you wish to oppose the relief requested in this motion, you must timely file a written opposition in compliance with all Court rules.  If you fail to do so, the court may treat your failure to oppose the motion as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a).”

However, this Court still believes that Defendant is entitled to monetary sanctions because Plaintiff also cites Code of Civil Procedure section 2030.290(c), which states that when a party’s response is untimely and the discovering party makes a motion to deem the requests admitted, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated [the] motion.”  (Code of Civil Procedure, § 2033.280(c) (emphasis added); see also Appleton v. Superior Court (3d Dist. 1988) 206 Cal.App.3d 632, 635-36.)

Plaintiff requests a total of $990.00 in sanctions for three hours of attorney’s fees, at a rate of $300.00 per hour, and the $90.00 fee for filing the motion at hand.  The Court believes this to be a reasonable time and rate for a motion of this kind.

The request for monetary sanctions is GRANTED.  Defendant shall pay the sum of $990.00 to counsel for Plaintiff within 20 days of the date of the filing of this Order.

IV.           Conclusion

Plaintiff’s motion to compel answers to Form Interrogatories, Set One is GRANTED.  Defendant shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

Plaintiff’s motion deeming Requests for Admissions, Set One, to be admitted is GRANTED.  The requests are deemed ADMITTED.

The request for monetary sanctions is GRANTED.  Defendant shall pay the sum of $990.00 to counsel for Plaintiff within 20 days of the date of the filing of this Order.