| Bernel et al. v. Century Tow | CASE NO. 113CV255888 | |
| DATE: 3 October 2014 | TIME: 9:00 | LINE NUMBER: 3 |
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 Century Tow to have its requests for admissions (“RFA”), Set Two, deemed admitted, to request for production of documents, Set One, to compel response to special interrogatories, Set One, and for monetary sanctions, was argued and submitted.
Plaintiffs Anthony Bernel, Adrian Villareal, and Jose Padilla (hereinafter “Bernel”) filed a formal opposition to defendant’s motion. Defendants filed a reply to Plaintiff’s formal opposition.
All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]
I. Statement of Facts
This case arises from a wage and hour dispute between Plaintiffs, Bernel, and Defendant, Century Tow. Plaintiffs are truck drivers formerly employed by Century Tow, an operation for automobile towing services. Plaintiffs allege that Century Tow failed to pay them minimum, overtime, and premium wages, did not provide rest breaks, did not comply with itemized employee wage statement provisions, and wrongfully terminated their employment, all of which culminate in violation of Unfair Competition laws. Bernel additionally alleges that he was wrongfully terminated following a complaint made about Century Tow engaging in illegal practices.
Plaintiffs filed this action on 8 November 2013, seeking recovery of lost wages in the form of compensatory damages, liquidated damages, statutory damages, permanent injunctions, and a declaratory judgment that the defendant violated the Plaintiffs’ rights under the California Labor Code and Wage Order 5. Defendants answered plaintiffs’ complaint on 22 January 2014, asserting the affirmative defenses of statute of limitations, laches, unclean hands, inequitable conduct, failure to mitigate damages, a failure to state a claim upon which relief can be granted, and waiver. Defendant’s answer was considered timely upon being granted an extension of time.
II. Discovery Dispute
On 9 September 2014, Century Tow served the RFA on Plaintiffs because Plaintiffs failed to provide timely, verified responses. On 22 September 2014, Plaintiffs filed a formal opposition to Defendant’s motion. On 26 September 2014, Defendants filed its reply.
III. Discussion
- Meet and Confer
Code of Civil Procedure section 2033.280 does not require a party to meet and confer before filing a motion to deem requests for admissions admitted, to compel response to interrogatories, and for production of documents.[2] Accordingly, the Court will reach the merits of the motion.
The parties have met and conferred on several occasions, with the Defendant’s counsel alleging that he made clear to the Plaintiffs that Plaintiffs must attach original verifications to each of their discovery responses. (See Ngo Decl., ¶ 7.) Defendants have attached a copy of one of their meet and confer letters dated 30 July 2014. (See Ex.1.)
B. Motion to Have RFA Deemed Admitted
Century Tow moves for an order deeming admitted the truth of the matters specified in the RFA on the ground that Plaintiffs provided unverified responses that cannot be considered timely.
1. Legal Standard
The party to whom a request for admission has been propounded is required to serve a response within 30 days, or on any later date to which the parties have agreed. (See Code Civ. Proc. §§ 2033.250, 2033.260.) If the party to whom requests for admissions are directed fails to serve a timely response, the propounding party may move for an order that the truth of any matters specified in those requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The court shall make this order unless it finds that, prior to the hearing on the motion, the responding party served a proposed response that is substantially code-compliant. (Code Civ. Proc., § 2033.280, subd. (c).)
There is no time limit for bringing the motion or meet and confer requirement. (See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4, disapproved of on another point by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973; Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584, disapproved of on another point by Wilcox v. Birtwhistle, supra, 21 Cal.4th 973.) The moving party need only show that the discovery was properly propounded and a timely response was not served. (See id.)
2. Merits of Motion
As previously indicated, the court shall make an order that the truth of any matters specified in requests for admissions be deemed admitted unless it finds that, prior to the hearing on the motion, the responding party served a proposed response that is substantially code-compliant. (Code Civ. Proc., § 2033.280, subd. (c); see Code Civ. Proc., § 2033.220.)
Here, Century Tow’s counsel declares that he served the RFA on 9 September 2014, and Plaintiffs’ counsel served unverified but otherwise code-compliant responses, though verification papers may follow in a delayed fashion afterwards. (See Ngo Decl., ¶¶ 2, 4.) Defendant’s counsel cites Appleton v. Superior Court (3rd Dist. 1988) 206 Cal.App.3d 632, 636, which held that unverified responses were equivalent to no responses at all. The Court is inclined to follow Appletonand, therefore, finds that the unverified responses are not code-compliant.
Accordingly, the motion of Defendant to deem matters in the requests for admissions to be admitted is GRANTED and the matters set forth in the request for admissions served upon Plaintiffs by Defendant are deemed ADMITTED.
B. Motion to Compel Response to Interrogatories and Production Request
Century Tow moves to compel Plaintiffs to provide verified responses to Century Tow’s interrogatories and production request.[3]
1. Legal Standard
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.
2. Merits of Motion
As indicated earlier, this Court finds that the Plaintiffs’ unverified responses are not code-compliant, and thus, cannot be considered timely. Accordingly, the motion is GRANTED. Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.
C. 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.”
1. Plaintiffs’ Request.
In the opposition papers, Plaintiffs seek monetary sanctions pursuant to Code of Civil Procedure, § 2023.010. The Court will decline to do so for two reasons. First, Plaintiffs did not prevail in the motion.
Second, Code of Civil Procedure, § 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. Therefore, pursuant to Code of Civil Procedure, § 2023.040, the request is not code compliant.
The request of Plaintiffs for monetary sanctions against Defendant is DENIED.
2. Defendant’s Request.
Defendant seeks $1515.00 for five hours of billable time in the preparation of the motion, review of the opposition and preparing the reply brief plus costs of $90 for the filing fee. This request is pursuant to Code of Civil Procedure, § 2033.280(c). The request is code compliant.
“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery [when] the requested discovery was provided to the moving party after the motion was filed.” (Rule of Court 3.1348(a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 409.)
In Sinaiko, supra, the Court of Appeal recognized that, in exercise of its discretion and based on the circumstances of the particular case, the trial court is in the best position to determine whether action taken subsequent to the filing of a discovery motion renders that motion moot.
Here, Defendant seeks monetary sanctions against Plaintiffs because their responses to Defendant’s discovery requests were unverified, despite being otherwise code-compliant. Defendant’s counsel cites Appleton v. Superior Court (3rd Dist. 1988) 206 Cal.App.3d 632, 636, which held that sanctions were mandatory for filing unverified responses to requests for admission.
While Plaintiffs did provide verification papers dated 17 September 2014 after Defendants served them with a RFA, the unavoidable result is that the imposition of sanctions is mandatory in this situation. According to Weil & Brown (§§ 8:1376-1377), this Court has no choice in this matter:
“Monetary sanctions also mandatory: although delayed responses may defeat a motion to compel, they will not avoid monetary sanctions. Regardless of the reason for the delay in responding, it is mandatory that a monetary sanction be imposed on the party or attorney, or both, whose failure to serve a timely response necessitated the filing of the deemed-admitted motion. [CCP § 2033.280(c)].
[¶] This is the only place in the Discovery Act where sanctions for delay or mandatory. The purpose is to provide incentive to timely response to RFAs: i.e., no excuses accepted!”
Accordingly, Century Tow’s request for monetary sanctions against Plaintiffs and/or their counsel is GRANTED. Plaintiffs and/or their counsel are to pay the sum of $1515.00 to counsel for Defendant within 20 days of the date of the filing of this Order.
IV. Conclusion and Order
The motion of Defendant to deem matters in the requests for admissions to be admitted is GRANTED and the matters set forth in the request for admissions served upon Plaintiffs by Defendant are deemed ADMITTED.
The request of Plaintiffs for monetary sanctions against Defendant is DENIED.
Defendant’s request for monetary sanctions against Plaintiffs and/or their counsel is GRANTED. Plaintiffs and/or their counsel are to pay the sum of $1515.00 to counsel for Defendant within 20 days of the date of the filing of this Order.
| ____________________________
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] 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] 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.” This was not done here as Defendants also seek to compel responses to interrogatories and product requests.
Link to this page