Case Number: BC509237    Hearing Date: August 01, 2014    Dept: 34

(1) Motion to compel plaintiff to respond to form interrogatories – employment law;
(2) Motion to compel plaintiff to respond to special interrogatories;
(3) Motion to compel plaintiff to respond to requests for production;
(4) Motion to deem requests for admissions admitted

Moving Party: Defendants Archdiocese of Los Angeles Education & Welfare Corporation on behalf of St. Bernardine of Siena Children’s Center (“Archdiocese” or “SBSCC”), and Charlene Barkes (“defendants”)

Resp. Party: None

Defendants’ motions are GRANTED. The Court imposes monetary sanctions against plaintiff and her counsel of record, jointly and severally, in the requested amount of $1,800.00.

PRELIMINARY COMMENTS:

The Court is becoming increasingly concerned about plaintiff’s non-opposition to defendants’ motions. Plaintiff did not file an opposition to the demurrer that was heard on May 30, 2014. Plaintiff did not file an opposition to this motion to compel and motion for sanctions.

If plaintiff does not intend to proceed with this matter, she should so notify defendants and the Court.

BACKGROUND:

Plaintiff commenced this action on 5/17/13. Plaintiff filed a first amended complaint on 2/19/14 against defendants for: (1) breach of written contract; (2) breach of the implied covenant of good faith and fair dealing; (3) breach of implied contract; (4) wrongful termination (Lab. Code § 98.6); (5) wrongful termination in violation of public policy; (6) IIED; and (7) NIED. On 2/19/14, plaintiff filed a first amended complaint alleging the same seven causes of action.

Plaintiff was employed by SBSCC as a pre-school teacher from 1998 until 2012. (FAC ¶ 13.) Plaintiff alleges that teachers at the center never received training, instruction, or information as to the proper care and treatment of special needs students. (Id., ¶¶ 15-16.) Despite the fact that 25% of the students were special needs students, defendants did not implement a support program or otherwise assist or instruct the teachers in dealing with special needs students. (Id., ¶¶ 22-27.) Barkes became plaintiff’s immediate supervisor in 2003. (Id., ¶ 17.) Plaintiff raised Barkes’s failure to implement the program with the Archdiocese, but the teachers still did not receive any support. (Id., ¶ 28.) In 2010, plaintiff concluded that she and other teachers were not being paid all of the compensation to which they were entitled under state law. (Id., ¶¶ 19-20.) Plaintiff raised these issues with Barkes and the Archdiocese, but they failed to remedy the situation. (Id., ¶ 20.) Plaintiff alleges that defendants used a pretext to terminate plaintiff in retaliation for these complaints. (See id., ¶¶ 21, 29-41.)

On 5/30/14, the Court sustained defendants’ demurrer to the second, third, and seventh causes of action in the FAC, without leave to amend.

ANALYSIS:
Defendants move to compel plaintiff’s responses to defendants’ first sets of form interrogatories (employment law), special interrogatories, and requests for production. Defendants also request an order deeming defendants’ first set of requests for admissions to be admitted.

California Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250(a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280(a).) The requesting party may then “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanction under Chapter 7.” (Code Civ. Proc., § 2033.280(b).)

A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (Code Civ. Proc., §2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 [disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., §2033.280(c); Weil & Brown, ¶ 8:1375.)

California Code of Civil Procedure requires a response from the party to whom interrogatories are propounded within 30 days after service of the interrogatories. (Code Civ. Proc., § 2030.260(a).) If a party fails to serve timely responses, “the party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc. § 2030.290(b).) By failing to respond, the offending party waives any objection to the interrogatories. (Code Civ. Proc. § 2030.290(a).)

California Code of Civil Procedure requires a response from the party to whom a request for production of documents is directed within 30 days after service of a demand for inspection, etc. (Code Civ. Proc., § 2031.260(a).) If the party fails to serve a timely response, “the party to whom the demand for inspection . . . is directed waives any objection to the demand.” (Code Civ. Proc., § 2031.300(a).) The requesting party may then “move for an order compelling response to the inspection demand.” (Code Civ. Proc., § 2031.300(b).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, “[o]nce [a party] ‘fail[ed] to serve a timely response,’ the trial court had authority to grant [opposing party’s] motion to compel responses.” (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

Defendants served the subject discovery on plaintiff by mail on 1/15/14. (See Stringham Decl., ¶ 2, Exh. A [attached proofs of service].) When responses were not timely served, defense counsel made multiple phone calls to plaintiff’s counsel regarding the outstanding discovery, which went unreturned. (Id., ¶ 3.) Defense counsel thereafter mailed a letter to plaintiff’s counsel inquiring as to the status of the responses. (Id., ¶ 4, Exh. B.) Plaintiff’s counsel then responded that he had a medical condition that prevented him from providing responses. (Id., ¶ 5.) Defense counsel agreed to extend the time to respond to 3/10/14. (Id., ¶ 6, Exh. C.) Plaintiff failed to respond by 3/10/14. (Id., ¶ 7.) Defense counsel attempted to meet and confer regarding the status of the responses, to no avail. (Id., ¶¶ 7-9, Exh. E.) No responses had been received as of 7/10/14. (Id., ¶¶ 10-11.)

Accordingly, defendants’ motions are GRANTED. Plaintiff Karla Breceda must provide verified responses, without objections, to defendants’ special interrogatories (set one) and form interrogatories – employment law (set one). Plaintiff must provide verified responses, without objections, and responsive documents to defendants’ requests for production (set one). Defendants’ first set of requests for admissions are deemed admitted.

Sanctions

Defendants seek sanctions against plaintiff and her counsel of record in the following amounts: $562.50 (motion re form interrogatories); $412.50 (motion re special interrogatories); $412.50 (motion re requests for production); and $412.50 (motion re requests for admissions).

Pursuant to Code of Civil Procedure section 2033.280(c), “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” Pursuant to California Code of Civil Procedure sections 2030.290(c) and 2031.300(c), a court “shall” impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on any party “who unsuccessfully makes or opposes a motion to compel a response , unless [the Court] finds that one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.” (Code Civ. Proc., §§ 2030.290(c), 2031.300(c).) A request for sanctions “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.” (Code Civ. Proc., § 2023.040.) 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.” (Code Civ. Proc., § 2023.040.)

Defendants’ requests for sanctions are made in the notices. All four of the motions contain an identical declaration stating that $562.50 was incurred in preparation of each motion. (See Stringham Decl., ¶ 14.) However, Defendant is apparently only requesting $412.50 for three of the motions. As indicated above, the motions are unopposed. Therefore, the Court can only conclude that plaintiff believes that the amount of sanctions are reasonable.

The requested sanctions of $1,800 are imposed. Responses to be provided, and sanctions to be paid, within 30 days.