| Alejandre et al. v. Lopez & Arteaga, Inc. | CASE NO. 114CV261442 | |
| DATE: 5 September 2014 | TIME: 9:00 | LINE NUMBER: 19 |
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 motions[1] of Defendant Lopez & Arteaga, Inc. (“Defendant”) to compel Plaintiffs Noe Alejandre, Ruby Avila and Pablo Rivera (“Plaintiffs”) to respond to form interrogatories, set one, special interrogatories, set one and request for production of documents, set one, were argued and submitted.[2]
Plaintiffs did not file formal opposition to the motion.[3]
I. Statement of Facts.
The complaint in this matter was filed on 28 February 2014. Plaintiffs are or were employed in a grocery store that was owned, operated and controlled by Defendant. The complaint seeks damages for wage and hour violations for a missed meal breaks, rest breaks, failure to pay overtime, failure to provide the itemized employee wage statement provisions, failure to pay wages when due, failure to reimburse work-related expenses, and attorney’s fees.
Defendant answered the complaint on 7 April 2014.
II. Discovery Dispute.
Defense counsel served the foregoing discovery by first-class mail on 13 May 2014. In a follow-up letter dated 30 July 2014, defense counsel pointed out that responses were due on 18 June 2014.[4] Although no meet and confer is required for this motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order. (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)
To date, there has been no responses to either the discovery or defense counsel’s follow-up letter.
III. Analysis.
- Motion to Compel
Defendant motions to compel discovery responses. The request is code-compliant. In support of the motion to compel responses, Defendant cites Code of Civil Procedure §§ 2023.010, 2023.030, 2030.260(a), 2030.290(b), 2031.260(a), and 2031.300(a)-(b).
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. 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.
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)).
Here, Defendant properly cites the Code of Civil Procedure in support of his motion to compel discovery responses.
- Form Interrogatories, Set One, and Special Interrogatories, Set One
Defendant’s counsel provided proof of service for the first set of form interrogatories and special interrogatories. The deadline for Plaintiffs to respond has lapsed and Plaintiffs has not timely responded to any of Defendant’ discovery requests.
Accordingly, Defendant’s Motion to Compel discovery responses to set one of Form Interrogatories, Special Interrogatories is GRANTED. Plaintiffs are ordered to provide Defendant’s counsel discovery responses without objections within 20 calendar days of the date of the filing of this Order.
- Request for Production
Defendant has provided proof of service for Defendant’s Request for Production of Documents, Set One to Plaintiffs. The deadline for Plaintiffs to respond has lapsed and Plaintiffs has not timely responded to Defendant’s request.
Accordingly Defendant’s motion to compel responses to Request for Production, Set One to Plaintiffs is GRANTED. Plaintiffs shall respond to Defendant’s Request for Production, Set One, without objections within 20 calendar days.
B. Sanctions.
Defendant makes a request for monetary sanctions. This 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). The party’s motion must also state the applicable rule that has been violated. (Id.).
In support of the request for sanctions, Defendant cites Code of Civil Procedure, §§ 2023.010(d), 2023.030, 2030.290(c), and 2031.300(c)).
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.
Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” 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. § 2030.290(c) (Imposing monetary sanctions for a motion to compel answers to interrogatories); 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)).
Since Plaintiffs did not file opposition to Motion to Compel Defendant’s set one of Form Interrogatories, Special Interrogatories and Request for Production, the Plaintiffs has not “unsuccessfully opposed” the Defendant’s motions. (Code Civ. Proc. §2031.300(c).) Therefore, the reliance on §2031.300 for monetary sanctions is inapplicable. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a)[5], where “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.”
The Court suggests the proper procedure would be to put the following language in the notice of the motion: “If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a).
Therefore, monetary sanctions for failure to comply with the discovery responses are DENIED.
IV. Order.
Defendant’s Motion to Compel discovery responses to set one of Form Interrogatories, Special Interrogatories and Request for Production of Documents is GRANTED. Plaintiffs are ordered to provide Defendant’s counsel discovery responses without objections within 20 calendar days of the date of the filing of this Order.
Monetary sanctions for failure to comply with the discovery responses are DENIED.
| ____________________________
DATED: |
_________________________________________________
HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] Defendant filed three identical motions.
[2] 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.”
[3] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.” Rule of Court 3.1348(b).
[4] Since the month of May has 31 days, the responses would have been due by 17 June 2014.
[5] Rule 3.1348 renumbered effective January 1, 2009; adopted as rule 341 effective July 1, 2001; previously renumbered as rule 3.1030 effective January 1, 2007
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