Darrick Hurd vs. Jose Javier Felix		CASE NO. 113CV246056
DATE: 12 September 2014	TIME: 9:00	LINE NUMBER: 8

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

On 12 September 2014, the motion of Defendant José Javier Felix (“Defendant”) to Compel Responses to Form Interrogatories, Special Interrogatories, and for Production of Documents was argued and submitted.

Plaintiff did not file formal opposition to the motion. [1]

I.       Statement of Facts

This case arises out of a motor vehicle accident that occurred on 10 May 2011.

II.      Discovery Dispute

On 20 February 2014, Defendant served on Plaintiff Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One.

On 23 June 2014, Defendant sent a meet and confer letter to Plaintiff, requesting discovery responses.[2]

The present motion was filed on 17 July 2014.  There has been no response to either the discovery requests, or the meet and confer letter, or to this motion.

III.     Analysis

         A.  Defendant’s Motion to Compel Production of Documents

Defendant moves to compel responses to form interrogatories, special interrogatories, and for production of documents.  In support of the motion, Defendant cites Code of Civil Procedure § 2030.010 and § 2031.010.

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. § 2030.290(a) (interrogatories) § 2031.300(a) (response to demand for production).

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. § 2030.290(b) (interrogatories) § 2031.300(b) (response to demand for production). 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).

Here, Defendant’s request is not code-compliant.  Defendant cites Code of Civil Procedure, §§ 2030.010 and  2031.010, which are improper authority for a motion to compel a discovery response.  The code sections Defendant cites lay out what Defendant may demand, but do 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. § 2030.290(b) for the interrogatories, and § 2031.300(a) for the demand for production of documents.

However, Defendant is correct that they are entitled to discovery responses in a timely fashion, and a delay of 3 months is problematic.  Additionally, it is well established that California discovery should be construed in favor of discovery.  While Defendant does not technically cite the correct sections, Defendant does cite the correct statute in support of what they are entitled to discover.

Therefore, Defendant’s Motion to Compel Production of Documents is GRANTED.  Plaintiff shall provide code-complaint responses to Defendant, without objections, within 20 calendar days.

B.  Defendant’s Request for Monetary Sanctions

Defendant makes 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.).

In support of the request for sanctions, Defendants cite Code of Civil Procedure, §§ 2023.010, § 2023.030, § 2030.010, § 2031.010, and § 128.5.  Defendants’ request is not code-compliant.

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.” (Id.) 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 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).

Usually, the proper code sections to cite for a request for monetary sanctions based on a motion to compel responses to interrogatories and production of documents would be Code Civ. Proc. § 2030.290(c) and § 2031.300(c).  However, those statutes are applicable “against any party, person, or attorney who unsuccessfully makes or opposes a motion [to compel discovery].”  Since Plaintiff has not filed an opposition, Plaintiff has not unsuccessfully opposed the Defendant’s motion. (Code Civ. Proc. § 2030.290; 2031.300). Therefore, reliance on § 2030.290 and § 2031.300 for monetary sanctions is inapplicable in this case because Plaintiff has not unsuccessfully opposed Defendant’s motion. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), 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.[3]

Additionally, Code Civ. Proc. § 128.5 is inapplicable.  By the terms of the statute, “section 128.5 does not apply to conduct arising from a claim initiated after December 31, 1994.”  (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 807.)

Furthermore, Defendant is reminded that sanctions should only be awarded for expenses actually incurred.  Requests for prospective costs, such as future travel time, are not permitted.  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)  If Defendant does orally argue before the Court, the Defendant may bring up the issue of further sanctions at that time.

Accordingly, Defendant’s request for monetary sanctions in the amount of $685.00 is DENIED. [4]

Order

Defendant’s Motion to Compel Production of Documents is GRANTED.  Plaintiff shall provide code-complaint responses to Defendant, without objections, within 20 calendar days.

Defendant’s request for monetary sanctions in the amount of $685.00 is DENIED.

 

 

________________­­­____________ DATED:

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

 

[1] “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).

[2] 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.)

[3] In the future, counsel would be advised to add the following language in the notice of your 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).”

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