Velasquez v. Walgreen Co. et al.		CASE NO. 112CV227453
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 6

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

On 22 August 2014, the motion of Defendants in Walgreen Co. and Zoline California Holding LLC to compel Plaintiff to respond to Defendants’ first supplemental interrogatory and to first supplemental request for production of documents and for monetary sanctions was argued and submitted.[1]

Plaintiff’s opposition to the motions were untimely [(Code of Civil Procedure, § 1005(b)] but will be considered.  (Rule of Court 3.1300(d).)

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

I.             Statement of Facts

The complaint in this matter was filed on 28 June 2012.  Plaintiff claims that on 28 June 2011, she fell in the Walgreen parking lot due to a large deep depression in the asphalt surface of the parking lot.

This matter has a trial date of 27 October 2014.

II.            Discovery Dispute

On 12 July 2013, Defendants served their supplemental interrogatory (Code of Civil Procedure, § 2030.070) and supplemental demand for inspection (Code of Civil Procedure, § 2031.050).[3]  Despite prolonged meet and confer, responses were not served.

On July 2014, this motion was filed and served.

On 19 August 2014, plaintiffs filed her opposition to this motion.  The papers state that Plaintiff’s counsel served verified responses without objections.  She therefore argues that the motion should be denied as moot.

 

III.           Analysis

A.  Motion To Compel Responses to Supplemental Interrogatory and Supplemental Demand for                                     Inspection.

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.)

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 for production).

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.

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

Accordingly Defendant’s motion to compel responses to Defendant’s discovery requests is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

               B.           Sanctions.

Defendants make a request for monetary sanctions.  The request is 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.

In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409, the Court of Appeal recognized that, in exercise of its discretion and based on the circumstances of the particular case, the trial court is in the best position to determine whether action taken subsequent to the filing of a discovery motion renders that motion moot.  In these circumstances, the Court will deem the matter to be MOOT unless there is a defect in the verification or service of the responses.

However, the issue of the request of Defendants for monetary sanctions is not moot.

“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.”  (Rule of Court 3.1348(a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 409.)

Defendants cite Code of Civil Procedure, §§ 2030.290(c) and 2030.300(c) as the entitlement for monetary sanctions.  Defense counsel claims nine hours in the preparation of this motion.  That seems a bit more than what this court might consider reasonable.  The Court believes that $760.00 (for four hours of time at the rate of $190.00) is appropriate.  Therefore, Plaintiff is to pay the sum of $820.00 to counsel for Defendants within 20 days of the date of the filing and service of this Order.

Defendant also seeks sanctions for time possibly spent arguing the motion. The Court does not grant speculative sanctions.  Sanctions should be awarded only for expenses actually incurred.  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)  If Plaintiff does wish to contest the tentative ruling and orally argue before the Court, the Defendants may bring up the issue of further sanctions at that time.

IV.           Order

The Court will deem the matter to be MOOT unless there is a defect in the verification or service of the responses.

Plaintiff is to pay the sum of $820.00 to counsel for Defendants within 20 days of the date of the filing and service of this Order.

 

 

________________­­­____________ DATED:

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

 

 

[1] Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”

[2] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[3] According to the notice of motion, “[t]he responses were served last year on July 12, 2013 and were due last year on August 16, 2013.”  (Notice of motion, page 2, lines 1-2.)