Gary Lovett v. Dell Inc., et al.		CASE NO. 113CV250531
DATE: 19 September 2014	TIME: 9:00	LINE NUMBER: 9

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

On 3 October 2014, the motion of Defendant Dell Inc. to compel Plaintiff Gary Lovett to provide verified responses to special interrogatories set one and request for monetary sanctions was argued and submitted.[1]

Plaintiff Gary Lovett did not file formal opposition to the motion.[2]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[3]

I.       Statement of Facts.

This matter arises from an employment dispute between Plaintiff Gary Lovett and Defendant Dell Inc.  According to the complaint filed on August 2, 2013, Dell hired Mr. Lovett to be a trainer and content developer for its San Jose based Networking Technical Assistance Center.  Prior to working at Dell, Mr. Lovett served as a Corpsman with the United States Navy in Afghanistan.  Mr. Lovett was honorably discharged in 2005 with a 100% disability rating due to injuries received in combat.[4]

The complaint alleges that a former co-worker and co-Defendant, Cerafin Castillo, continuously harassed and ridiculed Mr. Lovett about his military service while working for Defendant Dell.  According to the complaint, Dell failed to take sufficient action to remedy the situation despite Mr. Lovett’s numerous complaints and reports regarding the matter.

As a result, Mr. Lovett resigned from his position In October of 2012.  In August of 2013, Mr. Lovett filed this claim alleging constructive termination and a hostile work environment against Dell, and assault against Mr. Castillo.

II.      Discovery Dispute.

In a declaration submitted by Defendant’s attorney Douglas E. Dexter in support of Dell’s motion to compel, Mr. Dexter states Dell has struggled to obtain Mr. Lovett’s cooperation in discovery matters.  Dell took five hours of deposition from Mr. Lovett on December 17th and 18th of 2013.

On January 29, 2014, Dell served Mr. Lovett with a request for responses to special interrogatories, set one.  Mr. Lovett did not respond within 30 days.

Dell agreed to meet Mr. Lovett in Las Vegas, Nevada for deposition on March 4, 5, and 6th of 2014.  On March 4th, Mr. Lovett provided unsigned, uncaptioned written answers to the January 29, 2014 special interrogatories.

Dell requested Mr. Lovett provide signed and verified responses by April 14, 2014.  No response was received. In May of 2014, the parties agreed to stay further discovery pending mediation.

Following an unsuccessful mediation attempt, Dell sent a letter to Mr. Lovett’s attorney on August 20, 2014 requesting properly formatted verified responses to the January 29, 2014 special interrogatories.  Dell agreed to give opposing counsel until September 4, 2014 to comply.

After no verified responses were received, Dell filed this motion to compel verified interrogatory responses and request for monetary sanctions on September 5, 2014.

III.     Analysis.

A.  Motion to Compel Interrogatory 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 requests for the production of documents 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.

Defendant Dell has provided proof of service for the first set of special interrogatories. The deadline for Plaintiff Lovett to respond has lapsed, and the Plaintiff has not properly responded to any of Defendant’s discovery requests.  In order to properly respond, the party to whom the interrogatories are directed must sign the response under oath.  Code of Civ. Proc. § 2030.250 (a).  The responding party does not need to sign under oath if the response contains only objections.  Id.  In the present case, Plaintiff’s written responses contained no objections.  Where a verified response is required, any unverified response supplied is tantamount to no response at all.  (Appleton v. Super. Ct. (1988) 206 Cal.App.3d 632, 636.)

This Court notes in the reply papers that counsel for Defendant Dell, Inc. continued to extend every professional courtesy to defense counsel but no responses have been provided.

Accordingly, Defendant’s motion to compel responses to Defendant’s discovery request is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

         B.  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 request is not code-compliant.

Concerning the motions to compel initial responses, the Plaintiff has not unsuccessfully opposed Defendant’s motions. (Code Civ. Proc. § 2030.290). Therefore, reliance on section 2030.290 (c) for monetary sanctions is inapplicable in the present case. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a).  Under Rule 3.1348(a), 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) which states: “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.”

Additionally, Defendant Dell failed to comply with Code of Civil Procedure § 2023.040 requiring the original notice of motion be accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.  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).

In the instant case, Defendant improperly provided a supplemental reply to its uncontested motion to compel on September 26, 2014.  The reply contained a supporting declaration setting forth facts to prove the amount of monetary sanction sought.

“It is a mistake to leave key arguments and citations for the reply brief on the theory that this will give you ‘the last word with the court.  The court may refuse to consider arguments first raised in reply papers or grant the other side time for further briefing.”  (California Practice Guide, Civil Procedure Before Trial (Weil & Brown), § 9:106.1.)

The Court declines to consider Mr. Dexter’s declaration in support of monetary sanctions as it was offered as evidence for the first time in Defendant’s replay papers to an uncontested motion to compel.  (See Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273-1274 [“[o]bvious considerations of fairness in argument demand that the [moving party] present all of his points in the opening brief […] [t]o withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission […] [h]ence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before]; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [“This court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points”].)

The Court exercises its discretion to refuse to consider Defendant Dell’s reply as it contains evidence of the costs Dell has incurred to prepare the present motion and reply that was not stated in Defendant’s motion filed on September 5, 2014.

Defendant’s request for monetary sanctions is DENIED.

 

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IV.     Order.

Dell’s motion to compel verified special interrogatory responses is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

Dell’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.”

[2] “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).

[3] “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.”

[4] This Court wishes to thank Mr. Lovett for his service to this country.