Randal Shuler v. John Stein, The Boccardo Law Firm		CASE NO. 113CV242279
DATE: 5 September 2014	TIME: 9:00	LINE NUMBER: 13

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 4 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 5 September 2014, the motion of Defendants to Compel Production of Documents was argued and submitted.

Plaintiff filed formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]  Using tabs to separate exhibits is very helpful in saving the Court time and effort.

I.       Statement of Facts

This case is a legal malpractice suit against Defendants John Stein and The Boccardo Law Firm.  Plaintiff was injured in an automobile accident on 6 January 2011. Defendants represented Plaintiff from 20 January 2011 to 22 December 2011, when Plaintiff became dissatisfied with Defendants.  Defendants filed a motion to be relieved as counsel, which was granted on 9 March 2012.  Plaintiff retained other counsel, and resolved the underlying suit for $250,000, which was the limit on the insurance policy in that case.

Plaintiff then filed this malpractice suit, claiming that but for the negligent mishandling of his case, Plaintiff would have obtained a recovery of at least $1.5 million.

II.      Discovery Dispute

Defendants served Plaintiff with Defendant’s Request of Production of Documents, Set No. One on 24 March 2014.  This asked Plaintiff to produce all documents Plaintiff identified in his response to Defendant’s Special Interrogatories, Set No. One.

On 28 April 2014, Plaintiff responded to Defendants’ document request by stating “N/A.”

On 17 July 2014, Plaintiff provided further responses, stating that Plaintiff will produce for inspection documents responsive to Defendant’s Request of Production of Documents, Set No. One.

Defendants sent meet and confer letters, attempting to resolve this discovery dispute.  However, the letters were sent to the mailing address Plaintiff had designated as secondary, and Plaintiff did not retrieve those letters until 14 August 2014.

On 4 August 2014, Defendants filed this Motion to Compel Production of Documents.

On 25 August 2014, Plaintiff filed a formal opposition.  On 25 August 2014, Plaintiff also sent a letter to Defendants, offering to meet and produce documents in Santa Clara, from 2-4 September 2014.  Plaintiff has also indicated that 75% of the documents are already in Defendants possession.

On 28 August 2014, Defendants filed a Reply to Plaintiff’s Opposition, stating Defendants had called Plaintiff to discuss the matter but Plaintiff has not returned the call.

III.     Analysis

         A.  Defendants’ Motion to Compel Production of Documents

Plaintiff has not provided any documents, or a statement indicating Plaintiff does not have possession of those documents.  Therefore, this is a Motion to Compel Production of Documents.  In support of their motion, Defendants cite California Code of Civil Procedure §§ 2031.010(a), § 2031.210(a), and § 2031.230.

To prevail on its motion, a party needs to show 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. Superior Court. (1980) 111 Cal.App.3d 902, 905-906.)

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. § 2031.300.

If a party to whom interrogatories or demands 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. § 2031.300(b). 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. § 2031.300(a).

Here, Defendants’ request is not code-compliant.  Defendant cites the improper authority for a motion to compel the production of documents.  Code Civ. Proc. §§ 2031.010(a), § 2031.210(a), and § 2031.230.  The code sections Defendants cite lay out what Defendants may demand, and how Plaintiff should answer, but not provide authority for the Court to compel answers.  The proper authority to cite for this Motion to Compel Production of Documents would have been Code Civ. Proc. § 2031.300(b).

However, Defendants are correct that they are entitled to discovery responses in a timely fashion, and a delay of nearly 6 months is unacceptable.  Additionally, it is well established that California discovery should be construed in favor of discovery.

Therefore, Defendants’ Motion to Compel Production of Documents is GRANTED.  Plaintiff shall provide code-complaint responses to Defendant within 20 calendar days.  In the absence of any meaningful explanation as to why the usual and customary practices of code compliant delivery of the documents are inadequate, the Court will leave the method of delivery up to the choice of Defendant.

B.  Defendant’s Request for Monetary Sanctions

Defendants make a request for monetary sanctions.

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).  The party’s motion must also state the applicable rule that has been violated. (Id.).

Defendants’ request is not code-compliant.  In support of the request for sanctions, Defendants cite Code of Civil Procedure, §§ 2023.020(a) and § 2023.030(a).  The Court notes that the citation to Code Civ. Proc. § 2023.020(d) is probably a typo, and Defendants might have meant to cite Code Civ. Proc. § 2023.010(d).

However, section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

“Section 2023.030 authorizes a court to impose the specified types of sanctions, “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” (Ibid.) This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.”  (New Albertsons, Inc. v. Superior Court (Shanahan) (2008) 168 Cal.App.4th 1403, 1422.)  As such, section 2023.030 does not provide an independent basis for an award of sanctions and thus is not self-executing.  In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

The California Code of Civil Procedure states that the Court shall impose monetary sanctions in many different situations. See Code Civ. Pro. § 2031.300(c) (Imposing monetary sanctions against losing party in motion to compel response to inspection demand). However, where the Court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust” no monetary sanctions shall be imposed. (Code Civ. Proc. § 2023.030(a)). Where there are no opposition papers filed, the proper source of authority for monetary sanctions is Rule of Court 3.1348(a) as there has been no failed opposition.

In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49).  Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551).

Here, Defendants cite the incorrect authority in support of a request for monetary sanctions.  As discussed above, sections 2023.010 and 2023.030 do not provide a basis for the imposition of sanctions.  The proper authority to cite for a request for monetary sanctions based on a motion to compel production of documents would be Code Civ. Proc. § 2031.300(c).

Furthermore, Defendants are reminded that sanctions should only be awarded for expenses actually incurred.  Requests for prospective costs, such as future travel time, are not permitted.

Accordingly, Defendants’ request for monetary sanctions in the amount of $1,680.00 is DENIED. [2]

Order

Defendants’ Motion to Compel Production of Documents is GRANTED.  Plaintiff shall provide code-complaint responses to Defendant within 20 calendar days.

Defendants’ request for monetary sanctions in the amount of $1,680.00 is DENIED.

 

 

________________­­­____________ DATED:

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

 

[1] “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.”

[2] See “Civil Discovery Sanctions in California Courts–“The 3:10 to Discoveryville”  http://www.abtl.org/report/nc/abtlnorcalvol23no1.pdf