Pubmatic, Inc. v. EES Interactive Corp.		CASE NO. 113CV252422
DATE: 8 August 2014	TIME: 9:00	LINE NUMBER: 12

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 7 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 8 August 2014, the motion of Plaintiff PubMatic, Inc. to compel Defendant EES Interactive Corp. to provide further responses to Plaintiff’s requests for production of documents, set one, was argued and submitted.[1]

Defendant filed nominal opposition to the motion, asking that the matter be continued for at least 60 days to allow for a hearing on defense counsel’s motion to withdraw and so that Defendant could substitute new counsel.

In the absence of any agreement by Plaintiff to the contrary, this Court will decline the request to continue this motion.

Statement of Facts

This complaint seeks damages for breach of contract.

Plaintiff is a digital media platform company which assists publishers and automating the process of evaluating and selling their advertising inventory.  Defendant provides interactive market consulting services.

Defendant contracted with Plaintiff to buy display advertising.  Plaintiff provided the negotiated goods and services but Defendant did not pay for them.  Plaintiff seeks damages in excess of $350,000.

Discovery Dispute

Plaintiffs served its first request for production of documents on or about December 12, 2013.  Defendant promised to produce responsive documents subject to entering into a stipulated protective order.  That stipulation was entered into on or about 1 May 2014.  For reasons not clear to Plaintiff, Defendant has failed to produce a single document.

Analysis

To prevail on its motion, a party needs to show is that the discovery requests were properly served, that the time to respond has expired, and that no response of any kind has been served.  (Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)  A CCP § 2031.010 demand may be used to obtain inspection of “documents,” tangible things or land in the possession, custody or control of another party. Code Civ. Proc. § 2031.010(a).  Inspection is limited to matters within the permissible scope of discovery (“relevant to subject matter”) and not protected by privilege, work product, right of privacy, etc.  Code Civ. Proc. § 2031.010(a).

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.

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(a), 2031.300(a); 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. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) (“Weil & Brown”) at ¶¶8:1483-8:1488, 8:1136.)

Plaintiff  has provided proof of service for the inspection demands. The deadline for Defendant to respond has lapsed and Defendant has not timely responded to any of Defendant’s discovery requests.

Accordingly, Plaintiff’s motion to compel Defendant to provide responses to Plaintiff’s request for production of documents, set one, discovery requests is GRANTED.  Defendant is ordered to produce code-compliant responses without objections within 20 days of the date of the mailing of this Order.

Sanctions

In its Memorandum of Points and Authorities, Plaintiff makes a demand for monetary sanctions.  The request is not 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.”  See Rule of Court 2.30.

Since the Notice of Motion did not contain a request for monetary sanctions nor identified the party against whom sanctions were sought, the request of Plaintiff for monetary sanctions is DENIED.

Order

Plaintiff’s motion to compel Defendant to provide responses to Plaintiff’s request for production of documents, set one, discovery requests is GRANTED.  Defendant is ordered to produce code-compliant responses without objections within 20 days of the date of the mailing of this Order.

The request of Plaintiff for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara