Jason Aaron Martinez v. Esther Tongcha Kim, et al.		CASE NO. 113CV257903
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 20

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 plaintiff Jason Aaron Martinez (“Plaintiff”) to compel further responses to requests for production of documents (“RPD”) and form interrogatories (“FI”) and for monetary sanctions was argued and submitted.  Defendant Esther Tongcha Kim (“Defendant”) filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court (“CRC”), rule 3.1110(f).[1]

Statement of Facts

This is a personal injury action.  In the complaint, Plaintiff alleges that on 31 December 2011, Defendant negligently drove her vehicle at an unsafe speed through a red light at the intersection at El Camino Real and Pomeroy Avenue in Santa Clara, causing her vehicle to collide with Plaintiff’s vehicle.  As a result, Plaintiff allegedly suffered physical injuries, emotional distress, and property damage.

Plaintiff asserts causes of action against Defendant for (1) motor vehicle negligence, and (2) general negligence.

Discovery Dispute

On 9 April 2014, Plaintiff served the RPD and FI on Defendant.  The parties agreed to extend Defendant’s time to respond to 28 May 2014, and Defendant served initial responses to the RPD and FI on that date.

Plaintiff deemed Defendant’s responses to the RPD and FI to be deficient.  On 2 June 2014, Plaintiff’s counsel initiated meet and confer negotiations with Defendant’s counsel, outlining the purported deficiencies with Defendant’s responses to the RPD and FI, and demanding that Defendant serve supplemental responses.

Defendant served supplemental responses to the RPD and FI on 14 July 2014.

Plaintiff deemed the supplemental responses to RPD Nos. 1-2 and 6, and FI Nos. 6.4, 7.1, 14.1-14.2, 15.1, and 20.11 to be deficient.  Plaintiff’s counsel contacted Defendant’s counsel on 16 July 2014, outlining the purported deficiencies with those supplemental responses and advising that Plaintiff would move to compel further responses unless Defendant served a second set of supplemental responses the next day.

Defendant did not serve a second set of supplemental responses the following day, and then Plaintiff filed this motion to compel further responses to RPD Nos. 1-2 and 6, and FI Nos. 6.4, 7.1, 14.1-14.2, 15.1, and 20.11 on 25 July 2014.

Defendant served a second set of supplemental responses to FI Nos. 7.1, 15.1, and 16.1-16.10 on 7 August 2014.

On 8 August 2014, Defendant filed her opposition.

On 15 August 2014, Plaintiff filed his reply.

Discussion

Plaintiff moves to compel further responses to the RPD and FI, and requests an award of monetary sanctions against Defendant and her counsel.

I.             Motion to Compel Further Responses

Plaintiff moves to compel further responses to RPD Nos. 1-2 and 6, and FI Nos. 6.4, 7.1, 14.1-14.2, 15.1, and 20.11.

Defendant argues that the motion should be denied on the ground that she “acted in good faith” in discovery by deposing Plaintiff, “scheduling two [independent medical examinations] to determine the nature and extent of plaintiff’s injuries,” seeking “consultations” regarding Plaintiff’s wage-related damages, and providing two sets of supplemental responses to the FI.  (Defendant’s Opp’n, at pp. 1:20-2:7.)

However, whether Defendant deposed Plaintiff, scheduled medical exams, and contacted consultants is immaterial to whether she should be compelled to provide further responses to the RPD and FI.

Regarding the supplemental responses, Defendant filed a second set of supplemental responses to FI Nos. 7.1, 15.1, and 16.1-16.10 after Plaintiff filed this motion.  The Court exercises its discretion to review the second set of supplemental responses to FI Nos. 7.1 and 15.1 to determine whether they are complete and code-compliant.  (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409 [“Sinaiko”] [where the responding party provides a response after the propounding party files a motion to compel, the court has the discretion to review the answers and determine whether further responses are warranted].)  That being said, since Plaintiff does not move to compel further responses to FI Nos. 16.1-16.10, the fact that Defendant provided a second set of supplemental responses to those requests is of no consequence.

Thus, Defendant’s assertion that the motion should be denied because she “acted in good faith” is unavailing.  The Court will therefore deliberate the merits of the motion.

A.           RPD

Plaintiff moves to compel further responses and production responsive to RPD Nos. 1-2 and 6.

RPD No. 1 asks for all documents pertaining to the nature of the damage and/or cost of repair made to Defendant’s vehicle for damages attributable to the collision.   RPD No. 2 seeks all documents reflecting the ownership of Defendant’s vehicle.  RPD No. 6 asks for any and all records of any health care provider that treated Defendant for injuries attributable to the collision.

In her supplemental responses to the RPD, Defendant responded to RPD No. 1 with objections and by stating that she will produce a photograph of the vehicle.  She responded to RPD No. 2 with objections and substantively answered that she will produce the salvage certificate, but she “does not have any other documents responsive to this request.”  Defendant responded to RPD No. 6 with objections only.

Plaintiff argues that further responses to these requests are warranted because he has good cause for the discovery sought, Defendant’s objections lack merit, and her substantive responses are incomplete and evasive.

Aside from her assertion that she acted in good faith, which is discussed in detail above, Defendant does not proffer arguments in opposition to the motion as to the RPD.

1.            Legal Standard

A party propounding a request for production may move for an order compelling a further response if it deems that a statement of compliance with the demand is incomplete, a representation of an inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general.  (Code of Civ. Proc. [“CCP”], § 2031.310, subd. (a).)  The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.”  (Id., at subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [“Kirkland”].)  If good cause is shown, the burden shifts to the responding party to justify any objections. (Kirkland, supra, at p. 98.)

2.            Analysis

Good cause is established by a fact-specific showing of relevance.  (Kirkland, supra, at p. 98.)  Discovery is allowed for any matters that are relevant to the subject matter involved in the action, reasonably calculated to lead to the discovery of admissible evidence, and not privileged.  (CCP, § 2017.010.)  The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery.  (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)  Admissible evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid. Code, §§ 210 & 350-351.)  Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.  (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546 [“Gonzalez”].)

The discovery sought by RPD Nos. 1-2 pertains to damage to the vehicle driven by Defendant at the time of the collision, and the identity of anyone who has owned that vehicle.  Information about the damage to Defendant’s vehicle caused by the collision would tend to prove the severity of the collision, and facts regarding the severity of the collision are in dispute and material to the outcome of this case.  Also, information about the identity of those who owned the vehicle is reasonably calculated to lead to the discovery of potential witnesses to the damage as well as perhaps insurance information and, conceivably, other defendants.  The identity of potential witnesses is relevant information.  (See CCP, § 2017.010 [“[d]iscovery may be obtained of the identity and location of persons having knowledge of any discoverable matter”].)  Accordingly, the discovery sought by RPD Nos. 1-2 is reasonably calculated to lead to the discovery of admissible evidence, and therefore, is relevant.

The discovery sought by RPD No. 6 concerns medical records for Defendant’s injuries that she attributes to the collision.  Plaintiff contends that this information is relevant to the severity of the collision, and asserts that the parties dispute whether the collision was severe enough to have caused Plaintiff’s alleged injuries.  It is Plaintiff’s position that the discovery sought would tend to prove or disprove whether the collision was severe enough to have caused physical injuries.  Plaintiff’s argument is well-taken.  If Defendant received medical treatment for injuries that she attributes to the collision, that would tend to prove that the collision was severe enough to cause injuries.  Thus, the discovery sought by RPD No. 6 is relevant.

Accordingly, Plaintiff has demonstrated good cause for the discovery sought by RPD Nos. 1-2 and 6.

Since Defendant does attempt to justify her objections or responses to RPD Nos. 1-2 and 6, her objections are overruled.  (See Kirkland, supra, at p. 98.)

Turning to the sufficiency of Defendant’s substantive responses, responses to requests for production of documents must address each item or category of items separately with a statement of compliance or a statement of an inability to comply.  (See CCP, § 2031.210, subd. (a).)

In the supplemental response, Defendant substantively answered RPD No. 1 by stating that she will produce “copies of photographs of the vehicle defendant was driving.”  However, RPD No. 1 seeks documents pertaining to the nature of the damage and/or cost of repair made to Defendant’s vehicle for damages attributable to the collision.  While photographs of Defendant’s vehicle may reflect the nature of the damage, it is unclear from Defendant’s substantive answer whether other responsive documents exist.  A statement that the responding party will comply with a particular demand for production “shall state that the production . . . will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party . . . will be included in the production.”  (CCP, § 2031.220.)  Since Defendant does not specify whether production is being made either in whole or in part, and does not state that all responsive documents in her possession, custody, or control are being produced, Defendant’s response to RPD No. 1 is incomplete.  A further response to this request is therefore warranted.

In the supplemental response to RPD No. 2, Defendant substantively answered by stating that she will produce “the Salvage Certificate,” and “Defendant does not have any other documents responsive to this request.”  To the extent Defendant contends that she does not possess documents responsive to this request, her representation of an inability to comply is deficient because it lacks the requisite affirmation that a diligent search and reasonable inquiry had been made, and it does not specify why responsive documents are not in her possession.  (See CCP, § 2031.230.)  Thus, a further response to RPD No. 2 is warranted.

Defendant did not substantively respond to RPD No. 6.  Accordingly, a further response to RPD No. 6 is warranted.

Since Plaintiff has demonstrated good cause for the discovery sought, Defendant does not attempt to justify her objections, and her substantive responses to RPD Nos. 1-2 are deficient, further responses to RPD Nos. 1-2 and 6 are warranted.

B.           FI

Plaintiff moves to compel further responses to FI Nos. 6.4, 7.1, 14.1-14.2, 15.1, and 20.11.

FI No. 6.4 asks for information about any medical consultation or treatment Defendant received for injuries attributable to the collision.  FI No. 7.1 asks for information about any loss of or damage to a vehicle or other property that Defendant attributes to the collision.  FI Nos. 14.1 and 14.2 seek information about any violations of law that may have caused the collision.  FI No. 15.1 asks for information supporting Defendant’s denials and affirmative defenses.  FI No. 20.11 asks for the name and contact information of anyone who has had possession of Defendant’s vehicle since the collision.

Defendant initially responded to FI No. 6.4 with objections and substantive responses, and initially responded to FI Nos. 7.1, 14.2, 15.1, and 20.11 with substantive answers.  Defendant did not initially respond to FI No. 14.1.

In the supplemental responses, Defendant asserted additional objections to FI No. 6.4 and substantively answered FI No. 14.1.  Otherwise, the supplemental responses to the FI are essentially the same as the initial responses.

In the second set of supplemental responses, Defendants provided further substantive answers to FI Nos. 7.1, 14.1, and 15.1.

Plaintiff argues an order compelling further responses to FI Nos. 6.4, 7.1, 14.1-14.2, 15.1, and 20.11 is warranted because Defendant’s objections are without merit and her substantive responses are incomplete and/or evasive.

Defendant opposes the motion, asserting that her objections have merit and her responses are complete and straightforward.

                              1.            Legal Standard

If a party demanding a response to an interrogatory deems an answer to a particular interrogatory as incomplete or evasive, or an objection in the response to be without merit or too general, that party may move for an order compelling further response.  (CCP, § 2030.300, subd. (a).)  The objecting party bears the burden of explaining and justifying the objection.  (Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.)

                              2.            Analysis

i.             Defendant’s Objections

In her initial responses to the FI, Defendant objected on the ground of relevance to FI No. 6.4.  Defendant did not otherwise object to the FI in her initial responses.[2]

Defendant asserted additional objections to the FI in her supplemental responses and second set of supplemental responses.  However, objections to discovery requests not asserted in the initial responses are waived.  (Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4th 263, 273; accord CCP, § 2030.290, subd. (a).)  Since the only objection properly asserted in Defendant’s initial response is the relevance objection to FI No. 6.4, all of her other objections are overruled.

Turning to the relevance objection to FI No. 6.4—which asks for general information about any medical treatment Defendant received for injuries that she attributes to the collision—Defendant argues that her objection has merit because she does not assert a claim against Plaintiff for injuries.  In contrast, Plaintiff contends that the discovery sought concerning Defendant’s injuries is relevant to his claim for damages because any injury that Defendant sustained in the collision would demonstrate the speed and severity of the collision.  As discussed above, facts pertaining to any physical injury that Defendant attributes to the collision are relevant to this action, since any injury to Defendant would tend to prove the severity of the collision.

Thus, Defendant’s relevance objection is overruled.

                                             ii.            Defendant’s Substantive Responses

Responses to interrogatories must be as complete and straightforward as the information reasonably available to the responding party permits.  (CCP, § 2030.210.)  A substantive response to an interrogatory must either provide the information sought by the interrogatory, or make a statement of an inability to comply.  (Id., at subd. (a).)  Before making a statement of an inability to comply, the responding party must make a “reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations.”  (CCP, § 2030.220, subd. (c).)

               a.            FI Nos. 6.4, 14.1, & 20.11

Defendant substantively responded to FI No. 6.4 by stating that she is not making a claim for personal injury.  Since FI No. 6.4 asks for information about any injury she attributes to the collision—as opposed to any injury she asserts a claim for—Defendant’s response does not provide the information sought by the request.  Thus, the response to FI No. 6.4 is incomplete.  Also, “[a] party may not deliberately misconstrue a question for the purpose of supplying an evasive answer.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [“Deyo”].)  By misconstruing the interrogatory in order to avoid supplying the information sought, Defendant’s response is evasive.  Thus, a further response to FI No. 6.4 is warranted.

In her supplemental responses, Defendant substantively answered FI No. 14.1—asking whether Defendant contends that anyone involved in the collision violated the law—by stating “Defendant contends that she entered the intersection on a green light.”  This response is incomplete because it does not provide the information sought by the interrogatory.  In her second set of supplemental responses, she amended her answer to state:  “Not at this time.  Discovery and investigation continue and defendant reserves the right to introduce such evidence.”  The amended supplemental substantive answer is incomplete because it does not provide the information sought.  (See Deyo, supra, at pp. 782-783, fn.8 [“current information must be disclosed”].)  Accordingly, a further response to FI No. 14.1 is warranted.

FI No. 20.11 asks for the name, address, and telephone number of each person who has possessed the vehicle involved in the collision since the collision.  Defendant substantively answered by stating: “Defendant no longer has the vehicle.  The vehicle was deemed a total loss.”  This response does not provide the information sought by the interrogatory, and therefore, is incomplete.  In addition, this response is evasive because “a party may not provide deftly worded conclusionary answers designed to evade a series of explicit questions.”  (See Deyo, supra, at p. 783.)  Thus, a further response to FI No. 20.11 is warranted.

               b.            FI No. 7.1

FI No. 7.1 asks whether Defendant attributes any loss of or damage to a vehicle or other property to the collision, and if so, the interrogatory asks four additional questions about the damage.

Defendant did not substantively respond to the initial inquiry.  While her second set of supplemental responses to the four subparts of this interrogatory suggest that she does attribute loss or damage to a vehicle or property to the collision, her response to the initial inquiry is nevertheless incomplete.  Thus, a further response to FI No. 7.1 is warranted.

FI No. 7.1(a) seeks a description of the property.  Defendant substantively responded by stating “1998 Infiniti i30.”  This response provides the information sought by the interrogatory, and therefore, it is complete and straightforward.  A further response to FI No. 7.1(a) is accordingly not warranted.

FI No. 7.1(b) asks for the location and nature of the damage.  Defendant substantively responded to FI No. 7.1(b) by stating “to the front end.”  This response is incomplete because it does not describe the nature of the damage.  A further response to FI No. 7.1(b) is therefore warranted.

FI No. 7.1(c) asks for the amount of damage Defendant is claiming for each item of property damaged, and how that amount was calculated.  Defendant substantively answered by stating “I am not claiming any damages.”  Defendant’s response is incomplete because she does not provide the information sought by the interrogatory.  In addition, the use of the word “claiming” in the FI is not limited to claims asserted in the lawsuit, and therefore it could refer to any type of claim, including an insurance claim.  Defendant’s other discovery responses indicate that she made an insurance claim for the damage to her vehicle caused by the collision at issue in this case.  Thus, Defendant’s response to this interrogatory is evasive because she appears to have deliberately misconstrued the term “claiming” in order to avoid providing the information sought.  (See Deyo, supra, at p. 783.)  Therefore, a further response to FI No. 7.1(c) is warranted.

FI No. 7.1(d) asks if the property was sold, and if so, for the identity and contract information of the buyer, the date sold, and the sale price.  Defendant substantively answered by stating “[t]he vehicle was declared a total loss by my insurance company.”  Defendant’s response to FI No. 7.1(d) does not provide the information sought by the interrogatory, and therefore, is incomplete.  Accordingly, a further response to FI No. 7.1(d) is warranted.

               c.            FI No. 14.2

FI No. 14.2 asks whether any person was cited or charged with violating a law as a result of the collision, and if so, the interrogatory asks four questions about the citation or charge.

Defendant did not substantively answer the initial question posed by FI No. 14.2, and therefore, a further response to the initial question is warranted.

FI No. 14.2(a) asks for the name and contact information of the person cited or charged.  Defendant substantively answered FI No. 14.2(a) by stating her own name.  This response provides the information sought, and therefore, her answer is complete.  A further response to FI No. 14.2(a) is accordingly not warranted.

FI No. 14.2(b) asks for the law that was supposedly violated.  Defendant substantively responded to FI No. 14.2(b) by stating “[b]ased on information and belief, Vehicle Code Section 21453(a).”  Although this response provides the information sought, Plaintiff persuasively argues that Defendant’s response is evasive because she qualifies her response by stating that it is “based on information and belief.”  There is no legal authority allowing a party to respond to an interrogatory “based on information and belief.”  Defendant either has personal knowledge of the law that she was charged with violating, or alternatively, is obligated to refer to her citation or make reasonable inquiries to other persons and organizations to obtain the responsive information.  (See CCP, § 2030.220, subds. (a) & (c).)  Therefore, Defendant’s response to FI No. 14.2(b) is evasive, and a further response is warranted.

FI No. 14.2(c) asks whether the person charged or cited entered a plea, and if so, what plea was entered.  Defendant substantively answered FI No. 14.2(c) by stating “[c]annot recall.”  “[A]nswers such as, ‘I don’t recall’” are evasive.   (Deyo, supra, at p. 783.)  Furthermore, her response to FI No. 14.2(c) is incomplete because stating “cannot recall” does not provide the information sought or indicate that—after making a reasonable and good faith effort to obtain the information by inquiry—Defendant does not have personal knowledge to respond.  (See CCP, § 2030.220, subds. (a) & (c).)  Defendant must make a reasonable inquiry (e.g., contact the traffic court) to obtain the information sought.  Accordingly, a further response to FI No. 14.2(c) is warranted.

FI No. 14.2(d) asks for the name and address of the court or administrative agency that adjudicated the charge or citation, the names of the parties, and the case number.  Defendant substantively responded to FI No. 14.2(d) by stating “Defendant believes that she attended traffic school.”  This response does not provide the information sought by the interrogatory, and therefore, is incomplete.  A further response to FI No. 14.2(d) is therefore warranted.

               d.            FI No. 15.1

FI No. 15.1 asks for Defendant to identity each denial of a material allegation and each special or affirmative defense set forth in her answer, and for each denial or defense, to state (a) all facts upon which she bases the denial or special or affirmative defense, (b) the names and contact information of all persons with knowledge of those facts, and (c) the identity of all documents and other tangible things that support her denial or special or affirmative defense, and the name and contact information of the person who has each document or tangible thing.

Defendant did not provide any responsive information regarding her denials of the material allegations in the complaint.  Therefore, her response to FI No. 15.1 is incomplete.

Also, in the second set of supplemental responses, Defendant stated “N/A” in response to FI No. 15.1(b)-(c) with respect to her affirmative defenses.  However, “[a] party cannot state, ‘not applicable’ where the interrogatory is clearly applicable to him.”  (Deyo, supra, at p. 783.)  Since Defendant’s answer contains various affirmative defenses, this interrogatory is applicable to her, and her response to FI No. 15.1(b)-(c) is incomplete and evasive.  Thus, a further response to FI No. 15.1(b)-(c) is warranted.

In her second set of supplemental responses, Defendant substantively answered FI No. 15.1(a) as to each of her affirmative defenses by stating that she is presently unaware of any factual information that supports her affirmative defenses, “[t]he affirmative defense was stated in the event any such facts were revealed in discovery or investigation,” and “[d]iscovery and investigation continue and defendant reserves the right to introduce such evidence.”  These responses do not provide the information sought by the interrogatories or adequately state that—after making a good faith effort to obtain responsive information by inquiry—Defendant lacks sufficient personal knowledge to fully respond.  (See CCP, § 2030.220, subds. (a) & (c); see also Burke v. Super. Ct. (1969) 71 Cal.2d 276, 281-282 & 285 [a defendant must disclose the evidentiary facts underlying its affirmative defenses and denials, and interrogatories are designed to discover of facts presently known to a defendant upon which it predicates its defenses].)

Therefore, the response is incomplete.  If Defendant lacks information to respond to this request, then a code-compliant response would indicate that, after making a good faith effort to obtain responsive information, Defendant lacks does not have personal knowledge sufficient to fully respond to the interrogatory.  Accordingly, a further response to FI No. 15.1(a) is warranted.

               C.           Conclusion

In sum, Plaintiff has demonstrated good cause for the discovery sought by RPD Nos. 1-2 and 6, Defendant has not justified her objections to the discovery requests at issue, and her substantive responses to FI Nos. 6.4, 7.1 and 7.1(b)-(d), 14.1, 14.2 and 14.2(b)-(d), 15.1(a)-(c), and 20.11 are incomplete and/or evasive.  However, Defendant’s substantive responses to FI Nos. 7.1(a) and 14.2(a) are complete and straightforward.

Accordingly, further responses to RPD Nos. 1-2 and 6, and FI Nos. 6.4, 7.1 and 7.1(b)-(d), 14.1, 14.2 and 14.2(b)-(d), 15.1(a)-(c), and 20.11 are warranted.

Plaintiff’s motion to compel as to the FI is therefore GRANTED IN PART and DENIED IN PART.  The motion is GRANTED as to RPD Nos. 1-2 and 6, and FI Nos. 6.4, 7.1 and 7.1(b)-(d), 14.1, 14.2 and 14.2(b)-(d), 15.1(a)-(c), and 20.11.  The motion is DENIED as to FI Nos. 7.1(a) and 14.2(a).

II.            Request for Monetary Sanctions

Plaintiff makes a code-compliant request for an award of monetary sanctions against Defendant and her counsel in the amount of $5,402.

A court must impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or requests for production of documents, unless it finds that the one subject to the sanction acted with substantial justification[3] or that other circumstances make the imposition of the sanction unjust.  (See CCP, §§ 2030.300, subd. (d) & 2031.310, subd. (h).)  Where a responding party serves responses to the discovery requests at issue after the propounding party brings a motion to compel, the court may award sanctions against the responding party.  (See Sinaiko, supra, at p. 409; see also CRC, rule 3.1348(a).)

Defendant’s opposition to the motion was unsuccessful.  Moreover, she served the second set of supplemental responses to FI Nos. 7.1, 14.1, and 15.1 after Plaintiff filed the instant motion, and those responses were also mostly deficient.  Therefore, Defendant’s opposition to the motion was not justified.  The Court finds no other circumstances that would make the imposition of the sanction unjust, and thus, an award of monetary sanctions is warranted.

Plaintiff submits declarations from his attorney in support of his request for monetary sanctions.  Plaintiff’s counsel declares that he spent 1.5 hours meeting and conferring with Defendant’s counsel, 7 hours preparing the motion, and anticipates spending at least 4 hours preparing a reply and attending the hearing on this motion at a rate of $450 per hour.  (Wiener decl., ¶¶ 17-18.)  He further declares that Plaintiff incurred $90 in court reporter and filing fees in order to bring this motion.  (Id., at ¶ 18.)

Courts will only award monetary sanctions in the amount of “reasonable expenses . . . incurred by anyone as a result of [the sanctionable] conduct.”  (CCP, § 2023.030, subd. (a).)    Plaintiff did prepare a reply brief  without an additional declaration spending the amount of time spent preparing  the reply brief.  The time he anticipates spending to prepare and appear at the hearing has not been “incurred” and therefore will not be included in the award.[4]  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551 [courts only award sanctions for expenses actually incurred, not anticipated expenses].)  Additionally, the Court will not include the time counsel spent meeting and conferring in the award because the meet and confer requirement is a preexisting statutory obligation to bring a motion to compel further responses, and therefore, attorney’s fees for meeting and conferring are not incurred as a result of the sanctionable conduct.  (See CCP, §§ 2030.300, subd. (b) & 2031.310, subd. (b)(2).)  Lastly, while the Court finds the court reporter fee, filing fee, and counsel’s hourly rate to be reasonable, the amount of time he spent on this matter is not.   While the issues were important, the papers generated do not show a lot of heavy lifting.      The Court finds 4.0 hours to be a reasonable amount of time to have spent on this matter for a total of $1800 in attorney’s fees ($450 per hour x 4 hours).  The Court will therefore award monetary sanctions in the amount of $1,890.00in the attorney’s fees and in court reporter and filing fees).

Accordingly, Plaintiff’s request for an award of monetary sanctions against Defendant and her counsel is GRANTED IN PART in the amount of $1,890.00.

 

 

 

 

 

 

 

 

 

Conclusion and Order

Plaintiff’s motion to compel further responses to the RPD and FI is GRANTED IN PART and DENIED IN PART.

The motion is DENIED as to FI Nos. 7.1(a) and 14.2(a).

The motion is GRANTED as to RPD Nos. 1-2 and 6, and FI Nos. 6.4, 7.1 and 7.1(b)-(d), 14.1, 14.2 and 14.2(b)-(d), 15.1(a)-(c), and 20.11.  Accordingly, within 20 days of the date of the filing of this Order, Defendant shall provide verified code-compliant further responses to RPD Nos. 1-2 and 6 and FI Nos. 6.4, 7.1 and 7.1(b)-(d), 14.1, 14.2 and 14.2(b)-(d), 15.1(a)-(c), and 20.11, without objection, and produce all documents in conformity with the responses to the RPD.

Plaintiff’s request for an award of monetary sanctions against Defendant and her counsel is GRANTED IN PART in the amount of $1,890.  Accordingly, within 20 days of the date of the filing of this Order, Defendant and her counsel shall pay $1,890 to Plaintiff’s counsel.

 

________________­­­____________ DATED:

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

 

 

[1] “Each exhibit must be separated by a hard 8½ 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.”

[2] At the outset of her initial responses to the FI, Defendant lists several grounds for objections to the interrogatories and states that “[e]ach answer is subject to all objections.”  However, any objection must be made separately to each interrogatory and set forth in a response that bears the same identifying number or letter as the corresponding interrogatory.  (CCP, § 2030.210, subds. (a)(3) & (c).)  The specific ground for the objection must be “set forth clearly in the response,” and if the objection is based on a claim of privilege, the particular privilege must be clearly stated.  (CCP, § 2030.240, subd. (b).)  In light of the foregoing, any objection that is not specifically identified and set forth in the separate response to each interrogatory is overruled.

[3] The following might be useful in understanding the term “substantial justification.”  If the motion to compel is granted, to avoid sanctions the responding party must show “substantial justification” for his or her objection; e.g., reasonable grounds to believe the objection was valid when made and that opposition to the motion to compel therefore was justified.  (See Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-1558–refusing Ca Civ Pro § 2031.010 document requests and opposing motion to compel was “substantially justified” where refusing party’s motion for protective order was pending.)

Conversely, if the motion to compel is denied, to avoid sanctions the moving party must show “substantial justification” for making the motion; e.g., reasonable grounds to believe the deposition question was proper and that the objections thereto were invalid.  “Substantial justification” is generally defined as being justified to a degree that could satisfy a reasonable person, or stated another way, that it has a reasonable basis both in law and fact.  The burden for proving “substantial justification” for failing to comply with a discovery order is on the losing party claiming that it acted with “substantial justification.”  (Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434-1435.)  The justification must be “well-grounded in both law and fact”.  (Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, 747 [citations omitted].)

[4] Plaintiff’s counsel did not submit a supplemental declaration with the reply papers.