Rodriguez, et al. v. Pacific Bell Telephone Company, et al. CASE NO. 113CV255163
DATE: 23 May 2014 TIME: 9:00 LINE NUMBER: 16
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, the motion of Defendants Pacific Bell Telephone Company and Andrew Zuniga (” Defendants”) to compel Plaintiff Amanda Rodriguez (“Plaintiff”) to serve verifications and verified responses to Pacific Bell’s form interrogatories, set one, special interrogatories, set one and request for production of documents, set one, and for an order establishing the truth of each matter specified in the request for admissions was argued and submitted.

Defendants did not file formal opposition to the motion.

Statement of Facts

On 10 June 2012, the three plaintiffs were stopped in front of a red traffic light on Landess Avenue near Yellowstone Avenue in the city of Milpitas. They were rear-ended by Defendant Andrew Zuniga who was driving a motor vehicle owned by Defendant Pacific Bell Telephone Company.

The present lawsuit was filed on 25 October 2013. Defendants answered the lawsuit on 30 January 2014.

Discovery Dispute

On 30 January 2014, Defendants served the above discovery upon all three Plaintiffs. Defense Counsel granted a two-week extension of time up to and including 20 March 2014 within which to respond to the discovery requests at issue. While the parties engaged in satisfactory meet and confer issues involving discovery responses of the other Plaintiffs, Amanda Rodriguez never served verified responses. According to her counsel, she is out of the country.

Analysis

A. Lack of Verifications

The Civil Discovery Act requires that responses to discovery be signed under oath by the party to whom the discovery is directed. See Code of Civil Procedure, §§ 2030.250(a); 2031.250(a); 2033.240(a). Unverified responses to are tantamount to no responses at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

The motion to compel verifications is GRANTED. Plaintiff Amanda Rodriguez is to serve the verified responses without objection within 20 days of the date of the filing of this Order.

B. Requests For Admissions

When a responding party makes no response to document requests or interrogatories, the propounding party may move for an order compelling responses and production of the requested documents pursuant to Code of Civil Procedure (“CCP”) sections 2030.290 and 2031.310. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) (“Weil & Brown”) at ¶¶8:1483-8:1488, 8:1136.)

With respect to RFA, failure to timely respond to RFA does not result in automatic admissions. (Id. at ¶8:1370.) The propounder of the RFA must “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.” (Id., citing CCP § 2033.280(b).) The Court shall grant the motion, “unless it finds that the party to whom the [RFA] have been directed has served, before the hearing on the motion, a proposed response … in substantial compliance with” CCP section 2033.220 prior to the hearing. (Id. at ¶8:1374, citing CCP § 2033.280(c).)

To prevail on its motion, all Plaintiff needs to show is that the discovery requests were properly served upon West Bay, that the time to respond has expired, and that no response of any kind has been served. (See Id. at ¶8:1140, citing Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)

Moreover, if a party to whom interrogatories, document production requests, and request for admissions are directed fails to serve timely responses, that party waives any right to object to the requests, including ones based on privilege or the protection of attorney work product. (CCP §§ 2030.290, 2031.300, 2033.280(a).) 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; and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Id.)

Regarding the RFA, Defendants request the Court deem them admitted. Such a request must be granted unless the Court finds that the party to whom the RFA have been directed has served, before the hearing on the motion, a proposed response that is in substantial compliance with CCP section 2033.220. (Weil & Brown, supra, at ¶8:1374, citing CCP § 2033.280(c).) Given that the statutory language is mandatory and that West Bay has not provided any responses prior to the hearing on this Motion, the Court must GRANT Defendants’ request to have the RFA be deemed admitted.

Sanctions

Defendants make a request for monetary sanctions. 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 the instant matter, the notice of the motion does not contain notice of any request for any type of sanction against any party.

The request of Defendants for monetary sanctions is DENIED.

Order

The motion to compel verifications is GRANTED. Plaintiff Amanda Rodriguez is to serve the verified responses without objection within 20 days of the date of the filing of this Order.

Defendants’ request to have the RFA be deemed admitted is GRANTED.

The request of Defendants for monetary sanctions is DENIED.