Washington v. Easton CASE NO. 113CV254178
DATE: 23 May 2014 TIME: 9:00 LINE NUMBER:15
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 22 May 2014. Please specify the issue to be contested when calling the Court and counsel.

On 23 May 2014, Defendants, Easton and Kascht’s, Motion to Compel Plaintiff to Answer to Form Interrogatories and Special Interrogatories, and to respond to Plaintiff’s demand for Production of Documents was argued and submitted.

Plaintiff, Washington, did not formal opposition to the motion.

Statement of Facts

On 10 February 2014, Defendants served Form interrogatories, Special Interrogatories and Demand for Production upon Plaintiff.

On 31 March 2014, having received no verified answers, defense counsel wrote to Plaintiff’s counsel stating that answers to written discovery, including Form Interrogatories, Special Interrogatories, and Demand for Production, were overdue and requesting verified answers. A subsequent courtesy reminder was sent to opposing counsel on 11 April 2014. To date, Defendants have not received Plaintiff’s verified answers to Form Interrogatories, Special Interrogatories and Demand for Production.

Defendants, therefore, request the Court to grant their Motion to Compel Answers to Form Interrogatories, Special Interrogatories and Responses to Demand for Production. Defendants also Request for Monetary and Terminating Sanctions.

Discussion

Defendants request the Court to grant their Motion to Compel Plaintiff to answer the Form Interrogatories, Special Interrogatories and respond to Demand for Production.

The party making a demand for inspection, copying, testing or sampling shall serve a copy of the demand on the party to whom it is directed. California Code of Civil Procedure (“CCP”) § 2031.040. The party to whom written discovery 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. (“CCP”), §§ 2030.260, 2030.270 [interrogatories]; 2031.260, 2031.270 [requests for production].) If the party to whom interrogatories or requests for production are directed fails to serve a timely response, that party waives any objections to the discovery. (CCP, §§ 2030.290, subd. (a) [interrogatories]; 2031.300, subd. (a) [requests for production].) Additionally, the propounding party may move for an order compelling a response. (CCP, §§ 2030.290, subd. (b) [interrogatories]; 2031.300, subd. (b) [requests for production].) There is no limitation period (see CCP, §§ 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) 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 id.)

Here, Defendants served Form interrogatories, Special Interrogatories and Demand for Production upon Plaintiff on 10 February 2014. On 31 March 2014, having received no verified answers, defense counsel wrote to Plaintiff’s counsel stating that answers to written discovery, including Form Interrogatories, Special Interrogatories, and Demand for Production, were overdue and requesting verified answers. A subsequent courtesy reminder was sent to opposing counsel on 11 April 2014. To date, Defendants have not received Plaintiff’s verified answers to Form Interrogatories, Special Interrogatories and Demand for Production.

The Motion to Compel answers to Form Interrogatories and Special Interrogatories is GRANTED. The Motion to Compel Plaintiff to respond to Defendants request for production is GRANTED.

Sanctions

I. Monetary Sanctions
II.
Defendant seeks monetary sanctions, including attorney fees and costs incurred in making and appearing on this Motion, in the amount of $690.00. The request is not/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.”

In support of the request for sanctions, Plaintiff cites Code of Civil Procedure, § 2023.010. 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.

Additionally, Defendants request monetary sanctions under CCP §§ 2030.290 (c) and 2031.300 (c). This request for sanctions is not code-compliant. Under CCP § 2030.290 (c), the Court shall impose sanctions against a party who unsuccessfully makes or opposes a motion to compel answers to interrogatories, unless it finds that the party acts with substantial justification or other circumstances render sanctions “unjust.” Similarly, under CCP § 2031.300(c), a Court shall impose sanctions against a party who unsuccessfully makes or opposes a motion to compel responses to demand for production, unless it finds that the party acts with substantial justification or other circumstances render sanctions “unjust.”

Here, the Plaintiff has not made or opposed the Defendants motion to compel answers to interrogatories and request for production of documents. Therefore, CCP §§ 2030.290(c) and 2031.300(c) do not apply. The proper authority would have been Rule of Court 3.1348(a). The request for monetary sanction is not code compliant.

The request for monetary sanctions is DENIED.

III. Terminating Sanctions
IV.
Defendant requests terminating sanctions to dismiss Plaintiff’s case for discovery abuse.

C.C.P. §2023.030(d) provides that the Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. The primary purpose behind sanctions is to enable a party to obtain the information sought, rather than to punish a disobedient party. (Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal. App. 4th 256, 262).

Terminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party. (R.S. Creative, Inc. v. Creative Cotton, Ltd., (1999) 75 Cal.App.4th 486, 496.) ). In most cases, a terminating sanction is justified only where a party willfully persists in disobeying a court order. Id. Two facts are absolutely prerequisite to imposition of a terminating sanction: there must be a failure to comply, and the failure must be willful. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) The California cases where terminating sanctions were granted in the first instance without a prior court order are inapposite. In these cases, severe sanctions were proper in the absence of a prior court order because the court found that an order compelling discovery would be futile. (See Vallbona v. Springer (1996) 43 Cal. App. 4th 1525, 1545; Do It Urself Moving & Storage, Inc. v. Broan, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 35-36.)

Here, there is no willful failure to comply with a court order.

Additionaly, an imposition of termination sanction is proper in the absence of a prior court order where the Court finds that an order compelling discovery would be futile. The facts do not show any reason for the Court to believe that an order compelling discovery would be futile. Therefore, the imposition of terminating sanction is not warranted.

Thus, the request for terminating sanctions is DENIED.

Conclusion

Plaintiffs’ motion to compel responses to interrogatories and respond to production of documents is GRANTED. Defendants are ordered to respond to the request without objection and within twenty (20) days of the date of the filing of this order as per Plaintiffs’ request in their reply.

Plaintiffs’ request for monetary sanction is DENIED.

Plaintiffs’ motion for terminating sanction is DENIED.