Christopher Reed v. Michael Puncsak CASE NO. 113CV255122
DATE: 13 June May 2014 TIME: 9:00 LINE NUMBER: 13
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 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the motion of Defendant Michael Puncsak to compel Plaintiff Christopher Reed to respond to Defendant’s Form Interrogatories, set one, Special Interrogatories, set one, Demand for Inspection, set one, and request for monetary sanctions was argued and submitted.

Plaintiffs did not file formal opposition to the motion.

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

Statement of Facts

This action arises from of a complaint filed by Plaintiff Christopher Reed and Lodario Reed against Defendants Michael Puncsak and Does 1-20 (Defendant) concerning an allegation of personal injury and property damage arising from a vehicle collision on November 15, 2011. On March 14, 2014 Plaintiff’s attorney William H. Bassett successfully requested that only the complaint of Lodario Reed be dismissed.

Plaintiff Christopher Reed (Plaintiff) alleges and Defendant generally denies that the Defendant rear ended Plaintiff’s vehicle when he came to a complete stop at a stop sign in the parking lot of Wal-Mart. Plaintiff claims that his personal injuries were caused by Defendant’s negligence. Defendant raised seven affirmative defenses stating that Plaintiff negligently caused the vehicle collision, Plaintiff failed to use reasonable care to mitigate, Plaintiff’s damages were caused by acts and omissions of persons other than the Defendant, statute of limitations bars Plaintiff’s complaint, Plaintiff was not insured at the time of the incident, Plaintiff failed to state facts sufficient to constitute a cause of action, and Plaintiff assumed the risk of any claimed injuries.

Discovery Dispute

There is an inconsistency between Defendant’s notice of motion and memorandum of points and authorities concerning the service date of Defendant’s Form Interrogatories, Special Interrogatories, and Demand for Inspection. The Defendant’s Notice of Motion dated May 19, 2014 states that the Defendant served the Plaintiff with discovery requests on January 28, 2014 while the Memorandum of Points and Authorities states that the discovery documents were served on February 24, 2014. After serving the Plaintiff with discovery materials, the Defendant then sent three meet and confer letters (Exhibit D: April 4, 2014; April 18, 2014; May 2, 2014) to Plaintiff’s attorney requesting the overdue responses. Plaintiff has not provided any responses to Defendant’s discovery requests.

Analysis

I. Motion to Compel Responses to Defendant’s Interrogatories and Demand for Inspection

Defendants move to compel Plaintiff to respond to Defendant’s Form Interrogatories set one, Special Interrogatories set one, and Demand for Inspection set one.

A. Legal Standard

If a party to whom interrogatories or demand for inspection are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling responses. Code Civ. Proc. § 2030.290(b) (interrogatories) § 2031.300(b) (response to demand).The party who fails to serve a timely response waives any right to object to the interrogatories or demands, including ones based on privilege or on the protection of work product. Code Civ. Proc. § 2030.290 (a) (interrogatories) § 2031.300(a) (response to demand). A party must respond within 30 days after service of an interrogatory or demand for inspection unless time to respond has been modified by a propounding or responding party’s successful motion. Code Civ. Proc. § 2030.260 (interrogatories) § 2031.260 (response to demand).

To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show that the responding party was properly served with the discovery request or demand to produce, that the deadline to respond has passed, and that the responding party did not timely respond to the discovery request or demand to produce. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290; 2031.040; 2031.260(a); 2031.300; Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.

With respect to law and motion, according to the California Practice Guide: Civil Procedure Before Trial, “There are no ‘defaults’ in law and motion matters.” (Chap. 9, Part 1., § 9:94; see § 9:105.11 ). Thus, an opposing party’s failure to raise opposition to the moving party’s request will not necessarily result in success for the moving party. However, where a party’s moving papers are technically sufficient, the opposing party’s failure to contest will likely cause the court to grant the motion.

Effective service of process by mail requires strict compliance not only with Cal. Civ. Proc. Code § 1013, but also with § 1013a. Dobrick v. Hathway, (1984) 160 Cal. App. 3d 913, 921. Strict compliance is required, and failure to comply deprives the court of jurisdiction. (Id.). The court’s jurisdiction does not depend upon the proof of service, but upon the fact that service has been made. Heinlen v. Heilbron, (1892) 94 Cal. 636, 641. However, while “strict compliance” with § 1013 and § 1013a is required, “strict compliance” is not equated with absurdity in compliance but is satisfied by substantial, without literal, compliance. Douglas v. Janis, (1974) 43 Cal. App. 3d 931, 937. Service is presumed if the party serving the document satisfies the formal requirements of § 1013. Jones v. Catholic Healthcare West, (2007) 147 Cal. App. 4th 300, 308.

As stated in §1013(a) service by mail is completed when “the notice or other paper shall be deposited in a [. . . ] mailbox regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party’s place of residence.” Service is complete at the time of deposit. (Id.). The documents must be accompanied by an unsigned affidavit or certificate of mailing. Cal. Code. Civ. Proc. §1013(b).

An affidavit may be used to prove service. Cal. Code. Civ. Proc. § 2009. However, for the affidavit to be in compliance with §1013a(3) the affidavit must set forth: (a) the name, address, and telephone number of the person serving the document; (b) a statement that the person serving the documents is over 18 and is a resident of or works in the county where the mailing took place and is not a party to the suit; (c) a statement that the person serving the document is readily familiar with their employer’s business ‘s practices for collecting and processing mail with the USPS; (d) a statement that the same day the document is placed for collection and processing, it is deposited in the ordinary course of business with the USPS in a sealed envelope with the postage fully paid; (e) the exact title of the document served; (f) the date the document was mailed; (g) the address of the business where the document was placed for deposit in the mail; (h) the name and address of the person served, as shown on the envelope.

B. Establishing Proof of Service, Passing of Deadline, and Failure to Timely Respond

Concerning the proof of service for Form Interrogatories set one (Exhibit A) the document is not signed which challenges the legitimacy of the service of the documents. The Court is concerned with Defendant’s establishment of proper service in order to have jurisdiction to rule on Defendant’s motion to compel. Heinlen v. Heilbron, (1892) 94 Cal. 636, 641.

Here, the Defendant has established that the Plaintiff was properly served because they are in compliance with § 1013(b). § 1013(b) is established because the Defendant attached an unsigned affidavit to the Form Interrogatories set one and the affidavit attested to compliance with all the proper procedures necessary to satisfy §1013(a). Compliance with the elements of § 1013 establishes a presumption that service was made. Jones v. Catholic Healthcare West, (2007) 147 Cal. App. 4th 300, 308. Because there is no opposition or arguments made to contest the service of Form Interrogatories, the presumption that Defendant properly served Plaintiff stands.

Regarding proof of service, the attached affidavit included all the elements set out in § 1013a(3) and therefore established proper proof of service. § 1013a(3) does not explicitly state that the Defendant must sign the proof of service but that the affidavit must state the name, address and telephone number of the person serving the documents. Here the affidavit listed the name, address, and telephone number of the person who deposited the documents in the mail.

Further, strict compliance with § 1013 and § 1013a is satisfied because the Defendants have substantially complied with these statutes by fulfilling all the express elements listed. Douglas v. Janis, (1974) 43 Cal. App. 3d 931, 937. Even if proof of service was contested by the Plaintiff, the Defendant provided a signed affidavit of proof of service for the motion to compel as a whole which would put the Plaintiff on notice of the Form Interrogatories set one.

With regard to the requests for responses to Special Interrogatories set one and Demand for Inspection set one the Defendant has provided proof of service for the first set of special interrogatories and demand for inspection. Code Civ. Proc. § 2030.080(a); § 2031.040. The 30 day deadline starting from the service date (January 28, 2014 or February 24, 2014) for Plaintiff to respond has lapsed and the Plaintiff has failed to make a timely response to Defendant’s interrogatories and demand for inspection. Cal Code Civ. Proc. §§ 2030.260(a); 2030.290 (interrogatories); §§ 2031.260; 2031.300 (Demand to Produce).

Defendant’s motion to compel Plaintiff’s response to Form Interrogatories set one, Special Interrogatories set one, and the Demand for Inspection is GRANTED. Plaintiff is to provide code compliant responses within 20 days of the service and filing of this Order.

II. Request for Monetary Sanctions

Defendant seeks monetary sanctions against Plaintiff and Plaintiff’s attorney in the sum of $390.00 for reasonable attorney’s fees and costs (including court reporter fees) incurred by the Defendant in connection with this motion. Defendant has made a code-compliant request for monetary sanctions.

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.” See Rule of Court 2.30.

Defendant correctly cited Rule of Court 3.1348(a), where 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 addition, Defendant seeks monetary sanctions pursuant to Code of Civil Procedure sections 2023.010 and 2023.030.

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.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

Here, there was no opposition to Defendant’s motion to compel discovery and therefore Defendant’s reliance on Rule of Court 3.1348(a) is proper. Defendant’s motion to compel is also in compliance with § 2023.040 because the defendant specifically requests monetary sanctions, addresses the Plaintiff Christopher Reed and his attorney as the party against whom sanctions are sought, and gives a memorandum of points and authorities and a declaration that factually supports the $390.00 monetary sanction being sought. In addition to the Defendant’s code-compliant request for sanctions, the defendant has established entitlement to sanctions under § 2023.010(d) and § 2023.030(a) because the Plaintiff has misused the discovery process by failing to timely respond to the Defendant’s authorized method of discovery.

Accordingly, monetary sanctions for failure to comply with the interrogatory requests and inspection demand are GRANTED.

Order

The motion of Defendant to compel Plaintiff Christopher Reed to respond to Defendant’s Form Interrogatories, set one, Special Interrogatories, set one, Demand for Inspection, set one, is GRANTED. Plaintiff is to provide code compliant responses without objections within 20 days of the date of the filing of this Order.

The request for monetary sanctions is GRANTED. Plaintiff is ordered to pay the sum of $390 to counsel for Defendant within 20 days of the date of the filing of this Order.