Edward Hillstead v. Board of Trustees etc. CASE NO. 113CV253053
DATE: 19 June 2014 TIME: 9:00 LINE NUMBER: 18
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 408.882.6856 and the opposing party no later than 4:00 PM Wednesday 18 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 19 June 2014, the following motions of defendant the Board of Trustees of the Leland Stanford Junior University were argued and submitted: (1) motion to deem admitted matters set forth in requests for admission, set one (“RFA”), and for an award of monetary sanctions; (2) motion to compel initial responses to form interrogatories, set one (“FI”), and for an award of monetary sanctions; (3) motion to compel initial responses to inspection demands, set one (“RPD”), and for awards of monetary sanctions. Plaintiff Edward Hillstead filed formal oppositions to the motions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

This is a personal injury action. On 17 September 2011, Plaintiff Edward Hillstead (“Plaintiff”) was playing a round of golf at the Stanford Golf Course. Plaintiff alleges that as he was exiting the tee of the 15th hole, he stepped on a wet railroad tie that had been placed as a step and/or border on the tee box, causing him to slip and fall.

On 16 September 2013, Plaintiff filed a complaint against the Board of Trustees of the Leland Stanford Junior University (“Defendant”) and Stanford University Golf Course, alleging causes of action for premises liability and general negligence.

Discovery Dispute

On 13 February 2014, Defendant served Plaintiff with the RFA, FI, and RPD via U.S. mail. (Motion to Compel FI, Bower Dec., p. 2:3-8, Ex. A; Motion to Deem Admitted, Bower Dec., p. 2:3-8, Ex. A; Motion to Compel RPD, Bower Dec., p. 2:2-7, Ex. A.) Plaintiff’s responses to the RFA, FI, and RPD were due by 20 March 2014. (Motion to Compel FI, Bower Dec., p. 2:9; Motion to Deem Admitted, Bower Dec., p. 2:9; Motion to Compel RPD, Bower Dec., p. 2:8.)

Plaintiff requested that Defendant provide him with a two-week extension until 3 April 2014, to respond to the discovery requests. (Motion to Compel FI, Bower Dec., p. 2:10-12; Motion to Deem Admitted, Bower Dec., p. 2:10-13; Motion to Compel, RPD Bower Dec., p. 2:9-11.) Defendant agreed to grant Plaintiff the extension of time to respond as requested. (Id.)

Plaintiff did not serve Defendant with any responses to the RFA, FI, and RPD by the 3 April 2014 deadline. (Id.)

On 8 May 2014, Defendant filed the instant motions to deem admitted matters set forth in the RFA, to compel initial responses to the FI and RPD, and for awards of monetary sanctions. Plaintiff filed papers in opposition to the motions on 9 June 2014. Plaintiff filed a reply on 13 June 2014.

Discussion

Defendant moves for an order deeming admitted matters set forth in the RFA, and to compel initial responses to the FI and RPD, on the grounds that Plaintiff had not provided any responses to the discovery requests as of 8 May 2014, the date of the filing of the instant motions.

I. Procedural Issues

Defendant argues that Plaintiff’s opposition should be disregarded as it was not timely filed.

Code of Civil Procedure section 1005, subdivision (b) requires all opposing papers to be filed and served at least 9 court days before the hearing. No paper may be rejected for filing on the ground that it was untimely submitted for filing. (Cal. Rules of Court, rule 3.1300(d).) If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must indicate. (Id.)

Here, Plaintiff’s opposition should have been filed by 6 June 2014, 9 court days before the 19 June 2014 hearing. Plaintiff’s opposition was not filed until 9 June 2014, and is therefore untimely. Nonetheless, this Court exercises its discretion to consider the arguments raised in the untimely opposition since Defendant filed a substantive reply to the opposition and was not prejudiced by the delay in any way.

II. Motion to Deem Matters Admitted

A. Legal Standard

The party to whom requests for admission have been propounded is required to serve a response within 30 days, or on any later date to which the parties have agreed. (Code Civ. Proc., §§ 2033.250, 2033.260.) An additional 5 calendar days are added if the discovery is served by mail within California. (Code Civ. Proc., § 1013, subd. (a).)

If the party to whom requests for admissions are directed fails to serve a timely response, that party waives any objection to the requests. (Code Civ. Proc., § 2033.280, subd. (a).) In addition, the propounding party may move for an order that the truth of any matters specified in those requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The court shall make this order unless it finds that, prior to the hearing on the motion, the responding party served a proposed response that is substantially code-compliant. (Code Civ. Proc., § 2033.280, subd. (c); see also Tobin v. Oris (1992) 3 Cal.App.4th 973, 983.)

There is no limitation period or meet and confer requirement for bringing a motion to deem matters admitted. (See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4; Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584.) The moving party need only show that the discovery was properly propounded and a timely response was not served. (Id.)

B. Analysis

Here, Defendant’s counsel declares that he caused the RFA to be served on 3 February 2014, and Plaintiff had yet to serve any responses as of 8 May 2014, the date of the filing of the instant motion. (Motion to Deem Admitted, Bower Dec., p. 2:13-14.) In his opposition, Plaintiff concedes that he failed to timely serve his responses. (Motion to Deem Admitted, Opp’n., p. 2:3.) However, Plaintiff’s counsel declares that he caused Plaintiff’s responses to the RFA to be served after the filing of the motion, on 2 June 2014. (Motion to Deem Admitted, Cattermole Dec., p. 1:25-27, Ex. A.)

Plaintiff’s responses to the RFA consist solely of unqualified denials. (Id.) Thus, the responses are substantially code-compliant (Code Civ. Proc., § 2033.220, subd. (b)), which is all that is required to defeat a motion to deem matters admitted. (See Tobin v. Oris (1992) 3 Cal.App.4th 814, 828.)

Accordingly, Defendant’s motion to deem matters admitted is DENIED without prejudice to a motion to compel further responses.

III. Motions to Compel Initial Responses to the FI and RPD

A. Legal Standard

The party to whom interrogatories or requests for production of documents have 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., §§ 2030.260, 2030.270 [interrogatories], 2031.260, 2031.270 [requests for production].) An additional 5 calendar days are added if the discovery is served by mail within California. (Code Civ. Proc., § 1013, subd. (a).)

If the party to whom interrogatories or requests for production of documents are directed fails to serve a timely response, that party waives any objection to the discovery. (Code Civ. Proc., § 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [requests for production].)

Additionally, the propounding party may move for an order compelling a response to the interrogatories or requests for production of documents. (Code Civ. Proc., §§ 2030.290, subd. (b) [interrogatories], 2031.300 [requests for production].)

There is no limitation period or meet and confer requirement for bringing a motion to compel an initial response to interrogatories. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-411; Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.) The moving party need only show that the discovery was properly propounded and a timely response was not served. (Id.)

B. Analysis

Here, Defendant’s counsel declares that he caused the FI and RPD to be served on 3 February 2014, and Plaintiff had yet to serve any responses as of 8 May 2014, the date of the filing of the motions. (Motion to Compel FI, Bower Dec., p. 2:13; Motion to Compel, RPD Bower Dec., p. 2:12.) In his opposition, Plaintiff concedes that he failed to timely serve his responses. (Motion to Compel FI, Opp’n., p. 1:27-28; Motion to Compel RPD, Opp’n., p. 1:27-28.) However, Plaintiff’s counsel declares that he caused Plaintiff’s responses to the FI and RPD to be served after the filing of the motion, on 2 June 2014. (Motion to Compel FI, Cattermole Dec., p. 1:25-28; Motion to Compel RPD, Cattermole Dec., p. 1:25-28.)

In a situation where discovery responses are served after a motion to compel responses is filed, the court has substantial discretion to decide how to rule on the motion, including the discretion to deny the motion as moot. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 409.)

Since Plaintiff served responses to the FI and RPD at issue after Defendant filed this motion, the Court exercises its discretion to deny the motion to compel initial responses as moot.

To the extent Defendant deems Plaintiff’s responses to the FI and RPD to be deficient, it may meet and confer with Plaintiff, and if necessary, bring a motion to compel further responses. (See Code Civ. Proc., § 2030.300 [interrogatories], 2031.310 [requests for production], Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 409.)

Accordingly, Defendant’s motion to compel initial responses to the FI and RPD is DENIED as moot.

IV. Defendant’s Requests for Sanctions

Defendant requests awards of monetary sanctions against Plaintiff and his counsel in connection with each of its motions. In connection with its motion to deem matters admitted, Defendant requests an award in the amount of $1,192.50 under Code of Civil Procedure section 2033.280. In connection with its motion to compel responses to the FI, Defendant requests an award in the amount of $795.00 under Code of Civil Procedure section 2030.290. In connection with its motion to compel responses to the RPD, Defendant requests an award in the amount of $795.00 under Code of Civil Procedure section 2031.300. In its reply, Defendant also cites to California Rules of Court, rule 3.1348 as a basis for an award of monetary sanctions.

With respect to the RFA, Code of Civil Procedure section 2033.280, subdivision (c) states that it is “mandatory that the court impose a monetary sanction [. . .] on the party or attorney, or both, whose failure to serve a timely response [. . .] necessitated this motion.”

With respect to the FI and RPD, Code of Civil Procedure sections 2031.300, subdivision (c) and 2030.290, subdivision (c) state that the Court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel responses to inspection demands or interrogatories 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.

Here, Defendant makes code-compliant requests for monetary sanctions against Plaintiff and his counsel. Plaintiff failed to serve timely responses to the RFA, and thus, a monetary sanction is mandatory. Additionally, Plaintiff did not act with substantial justification in failing to serve timely responses to the FI and RPD, and no other circumstances render the imposition of sanctions unjust. Furthermore, although Plaintiff served responses to the RFA, FI, and RPD after the filing of the motions, Defendant is still entitled to sanctions. As set out in California Rules of Court, rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though [. . .] the requested discovery was provided to the moving party after the motion was filed.” (See also Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 408-409.)

Defendant’s counsel declares that he spent 4.5 hours preparing the motion to deem matters admitted, 3 hours preparing the motion to compel responses to the FI, and 3 hours preparing the motion to compel responses to the RPD, at his hourly rate of $265.00.

The Court finds that the hourly rate is reasonable, but the time spent preparing the motions is excessive because the papers for each motion are largely identical and very brief. A more reasonable amount of time to have spent preparing the motions would be 2 hours for the motion to deem matters admitted, 1 hour for the motion to compel responses to the FI, and 1 hour for the motion to compel responses to the RPD.

Accordingly, Defendant’s requests for monetary sanctions are GRANTED IN PART in the amount of $1,060.00.

Conclusion and Order

Defendant’s motion to deem matters admitted is DENIED without prejudice to a motion to compel further responses. Defendant’s motion to compel initial responses to the FI and RPD is DENIED as moot. Defendant’s requests for monetary sanctions are GRANTED IN PART in the amount of $1,060.00. Accordingly, within 20 calendar days of the date of the filing of this Order, Plaintiff and his counsel shall pay $1,060.00 to Defendant’s counsel.