Blake Anderson v. Jordan Savara, D.C., et al.		CASE NO. 112CV237983
DATE: 3 October 2014	TIME: 9:00	LINE NUMBER: 5

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 2 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 3 October 2014, the motion of Defendant Jordan Savara, D.C. to “compel Plaintiff to provide verified supplemental responses to defendant’s interrogatories and requests for production of documents and an award of monetary sanctions” was argued and submitted.[1]

Defendants filed formal opposition to the motion.

I.       Statement of Facts.

This matter arises out of a personal injury claim. Plaintiff alleges, inter alia, that Defendant, in the course of his work as a chiropractor caused injury to Plaintiff. Plaintiff claims he has complex regional pain syndrome requiring extensive medical treatment and is seeking damages for medical expenses, loss of income and general damages.  Defendant denies the allegations.

In an order made following the motion of Defendant for summary adjudication of the second cause of action for simple battery in Plaintiff’s First Amended Complaint on 28 August 2014, Judge Arand ruled that

“[n]o triable issue of material fact exists showing Dr. Savara intended to harm or injure plaintiff during the encounter giving rise to this lawsuit.  Accordingly, plaintiff cannot establish an essential element to his simple battery claim as set forth in the second cause of action in the First Amended Complaint.”

The matter has a trial date of 3 November 2014.

II.      Discovery Dispute.

On 14 March 2013, Defendant served multiple forms of discovery on Plaintiff. Plaintiff served responses on 16 August 2013.

On 23 April 2014, Defendant served a request for supplemental responses for special interrogatories and requests for the production of documents. On 1 July 2014, Plaintiff served unverified responses that included objections.

After a lengthy meet and confer process that produced no results, on 4 September 2014, Defendant filed the instant motion to compel responses.

On 22 September 2014, Plaintiff filed his reply, which included verified responses to the discovery in question.

III.     Analysis.

A.  Motion to Compel Initial Responses

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 or demand for inspection 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.

A general boilerplate objection is disfavored because of the inference that it implies that there are documents in existence that are responsive to the request, but that because of the objection, they are not going to be produced. See Standon v. Sup. Ct. (1990) 225 Cal.App.3d 898, 901. A boilerplate objection constitutes a response, may still be evasive and sanctionable if they are not specific enough. See Korea Data Sys. Co. v. Superior Ct. (4th Dist. 2997) 51 Cal.App.4th 1513, 1516.

Even if the responding party serves an untimely response, the Court may consider the motion, in its own discretion. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2d Dist. 2007) 148 Cal.App.4th 390, 396.

This issue revolves strictly on a matter of timing. On 23 April 2014, Defendant served the supplemental requests on Plaintiff. The responses were due on 28 May 2014. At this point, Defendant was within his rights to file and serve a motion to compel initial responses. On 1 July 2014, Plaintiff served unverified responses with generalized and boilerplate objections to the supplemental requests, along with an unverified statement that no previous answers changed. The objections themselves were waived as a matter of law, but the objections still constituted a response. See, e.g., Food 4 Less Supermkts., Inc. v. Superior Ct. (2d Dist. 1995) 40 Cal.App.4th 651, 657-58.

Defendant filed the instant motion on 4 September 2014, over two months after receiving the purportedly defective responses. The timing is quite different from that in Sinaiko, where the responding party did not serve any responses until the day the motion to compel was filed.

The instant motions should have been motions to compel further responses under Code of Civil Procedure sections 2030.300 and 2031.310. Defendant seems to acknowledge this because he filed a Separate Statement, a document required for a motion to compel further responses but not initial responses. Because the paperwork was sufficient, the Court might have entertained treating this as a motion to compel further responses, but those are subject to a 45-day time limit from the date responses are served. See Code Civ. Proc. §§ 2030.300(c), 2031.310(c).This deadline has passed. The Court determines that Defendant’s motion to compel initial responses is MOOT.

As part of his opposition, Plaintiff filed amended supplemental responses to the special interrogatories and requests for the production of documents that included verifications. The Court makes no comment about how compliant these responses are, and whether they are subject to a new 45-day time limit for a new motion to compel further responses under Code of Civil Procedure sections 2030.300(c) and 2031.310(c).

Defendant’s motion to compel initial responses to Defendant’s Supplemental Interrogatories and Requests for Production of Documents is MOOT.

         B.  Sanctions.

Defendant makes a request for monetary sanctions. Defendant was not successful in the instant motion, so the Court will decline to award sanctions on this matter.

The Court does note that Plaintiff’s counsel asserted unmeritorious objections in Plaintiff’s responses since these objections were waived as a matter of law. The Court considered issuing notice that it was considering imposing monetary sanctions under Code of Civil Procedure section 2023.030(a) on counsel for misuse of the discovery process as defined under Code of Civil Procedure section 2023.010(e) and as authorized under Code of Civil Procedure sections 2030.300 and 2031.310. The Court believes that reminding counsel of his duties and responsibilities as an attorney and officer of the court will be sufficient in this instance.

Defendant’s request for monetary sanctions is DENIED.

IV.     Order.

Defendant’s motion to compel initial responses to Defendant’s Supplemental Interrogatories and Requests for Production of Documents is MOOT.

Defendant’s request for monetary sanctions is DENIED.

 

 

________________­­­____________ 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.” Defendant also cites Code of Civil Procedure sections 2030.300 and 2031.310 which speak to seeking further responses, but does not cite this authority in his memorandum of points and authorities. Any argument for further responses is waived.