Case Number: KC066122    Hearing Date: July 15, 2014    Dept: J

Re: Ronald D. Brown, et al. v. Jose Douglas Fallas (KC066122)

(1) MOTION TO COMPEL COMPLIANCE WITH DISCOVERY COURT ORDER AND REQUEST FOR FURTHER SANCTIONS; (2) MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS AND SPECIAL INTERROGATORIES

Moving Parties: Plaintiffs

Respondent: Defendant

POS: Moving OK; Opposing papers filed just 8 court days prior to the hearing and served by regular mail contrary to CCP §§ 1005(b) and (c)

[PROCEDURAL NOTE: Counsel for plaintiffs have improperly combined two discovery motions, one to compel responses to a Request for Production of Documents, and another to compel responses to Special Interrogatories, into a single motion. Counsel for plaintiffs are directed to pay an addition motion filing fee prior the hearing.]

(1) MOTION TO COMPEL COMPLIANCE WITH DISCOVERY ORDER AND FOR FURTHER SANCTIONS:

Plaintiffs Ronald and Kathleen Brown (collectively “Plaintiffs”) move for orders granting issue and evidence sanctions, and awarding additional monetary sanctions. Specifically, Plaintiffs seek an order that the allegations in paragraphs 10, 23 and 28 of the Complaint regarding the shed encroachment and the sewer connection are now deemed admitted, and that no evidence to the contrary may be submitted by Defendant. Plaintiffs also seek additional monetary sanctions against Defendant and his counsel, jointly and severally, in the amount of at least $2,510.00, plus additional attorneys fees should Reply papers be prepared, and a court appearance be necessary. The grounds for the motion are that Defendant, assisted by his counsel, has engaged in discovery abuse by failing to obey the court’s Order of April 23, 2014 that he failed to: (1) serve on Plaintiffs either (a) the originals of responses to five items of written discovery, or (b) amended proofs of service of each of those; and (2) pay $2,760.00 within 10 days.

If anyone engages in conduct that is a misuse of the discovery process, the court may impose monetary sanction, issue sanction, evidence sanction, terminating sanction, and contempt sanction. (CCP § 2023.030.) The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Ibid.) Terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) Terminating sanctions should not be ordered as a first response when noncompliance is through no fault of the party. (Ibid.)

Plaintiffs contend that Defendant violated the court’s April 23, 2014 Order because: (1) Defendant did not serve, as ordered, either the originals of responses to prior discovery or corrected proofs of service of those; (2) Defendant provided substantially amended responses to some of that discovery, instead of the originals; (3) as to the Document Requests and Order, the supplemental response still fails to explain why the document were not provided or even that a good faith search for them had been conducted; and (4) neither Defendant nor his counsel have paid the $2,760.00 in monetary sanctions.

On April 23, 2014, the court granted Plaintiffs’ motion for orders compelling Defendant to serve on Plaintiffs the originals of discovery responses and to identify and produce documents. The court adopted the tentative ruling as the court’s order and Defendant was ordered to “provide further verified responses to the subject discovery within 10 days.” (See April 23, 2014 Minute Order.) Defendant was also ordered to serve “either the original responses or corrected proof of service” within 10 days and pay $2,760.00 as monetary sanctions within 10 days. (Id., Tentative Ruling.)

Plaintiffs submit evidence that Defendant served supplemental responses to Plaintiffs’ (1) request for production of documents, set one, (2) request for admission, set one, (3) request for admissions (genuineness of documents); and form interrogatories, set one (Motion, Woodward Decl. ¶ 3, Exhs. Sup 1B, Sup 2B, S2BS and S3B); but that Defendant did not serve, as ordered, either the originals of responses to prior discovery or corrected proofs of service of those.

Defendant, in response, contends that he has complied with the court order by serving his supplemental responses to the subject discovery. It appears that Defendant is correct. By serving supplemental responses to the subject discovery, there is no need to serve the originals of his initial responses to discovery or corrected proofs of service of those, since his supplemental responses supersedes his original responses.

Plaintiffs also contend that Defendant’s supplemental responses are deficient. However, in order to seek further responses on the supplemental responses, Plaintiffs must bring a separate motion under CCP §§ 2030.300, 2031.310, and 2033.290.

Plaintiffs also contend that Defendant violated the prior court order by failing to pay monetary sanctions as ordered. However, the court declines to issue further sanctions for such failure since a sanctions order is enforceable in the same way as a “money judgment”; i.e., a writ of execution may be issued by the court and levied on the property of the person sanctioned. (See CCP §§ 680.230, 680.270, 699.510; Newland v. Sup.Ct. (Sugasawara) (1995) 40 Cal.App.4th 608, 615.)

Thus, the motion is denied.

(2) MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS AND SPECIAL INTERROGATORIES:

Plaintiffs also move for an order compelling objection-free, verified responses to request for production of documents, set one, from Plaintiff Kathleen Brown to Defendant Jose Fallas, and special interrogatories to Cross-Complainant Jose Douglas Fallas from Cross-Defendant Ronald Brown. Plaintiffs seek sanctions against Defendant/Cross-Complainant Jose Douglas Fallas and his counsel. (Plaintiffs represent that the cost of filing the motion is $60.00; and the attorneys’ fees are at least $1,400.00, and will increase should Reply papers be prepared after receipt of any Opposition papers.)

CCP §§ 2030.290(b) and 2031.300(b) allow the propounding party to file a motion to compel responses to interrogatories and document demands if a response has not been received. If responses are untimely, responding party waives objections. (CCP §§ 2030.290(a) and 2031.300(a).) Monetary sanctions are authorized against the “party, person or attorney” who unsuccessfully makes or opposes a motion to compel. (CCP § 2030.300(d).)

The subject discovery requests were propounded by mail on February 24, 2014 and March 5, 2014. (Motion, Woodward Decl. ¶¶ 2, 4.) Defendant has not provided any responses to the subject discovery. (Id., ¶¶ 3, 5.) On April 23, 2014 and May 5, 2014, counsel for Plaintiffs sent letters to Defendant’s counsel asking for the responses. (Id., ¶¶ 6-7, Exhs. C-D.) Defendant, however, failed to respond to the subject discovery. (Ibid.)

Defendant, in opposition, represents that he will serve the responses to the outstanding discovery prior to the hearing of this motion. Assuming that this is done, the motion will be deemed moot.

However, monetary sanctions are warranted. While counsel for Defendant explains that the delay was due to the difficultly in working with their client, it appears that had counsel responded to Plaintiffs’ counsel’s meet and confer letters and/or sought extension in responding to the subject discovery, this motion would not have been necessary. Thus, Defendant and his counsel are jointly order to pay to counsel for Plaintiffs reasonable monetary sanctions of $960.00 (3 hours @ hourly rate of $300 + $60) within 10 days.

Should the parties to this action have any additional discovery disputes, counsel should be prepared to submit to the court the name(s) of a proposed discovery referee to whom all future discovery motions will be referred.