| Gibraltar SSI, LLC v. McAfee Capital, LLC, et al. | CASE NO. 114CV263876 | |
| DATE: 3 October 2014 | TIME: 9:00 | LINE NUMBER: 16 |
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 Plaintiff Gibraltar SSI, LLC (“Plaintiff”) to compel Defendant P2 Capital, LLC and et al. (“Defendant”) for the following 1) Form Interrogatories (“FI”), set one, 2) Special Interrogatories (“SI”), set one, 3) Request for Production of Documents (“RPD”), and 4) Requests for Admission was argued and submitted.[1]
Defendants filed formal opposition to the motion.[2] Plaintiff filed a reply to the opposition.
The Opposition to the Motions was untimely [(Code of Civil Procedure, § 1005(b) [3]] and will be considered. (Rule of Court 3.1300(d).[4]) Plaintiff filed a Reply memorandum that was untimely and will be considered.
I. Statement of Facts.
This motion arises from an action alleging that Defendant has fraudulently recorded a deed of trust against Eric McAfee (“Mr. McAfee”) and Marguerite McAfee’s (“Mrs. McAfee”) resident in order to hinder and delay Plaintiff’s collection effort on a judgment against Mr. McAfee to set aside numerous fraudulent conveyances and to recover damages from the fraudulent and otherwise wrongful conduct and actions taken by Defendant and related and/or party defendants to the case. Plaintiff noted that Defendant P2 Capital, LLC is the holding company of Mrs. McAfee. [Compl., ¶] Furthermore, Plaintiff alleged that Defendant knowingly and actively engaged in conduct intended to circumvent the charging order issued by the Court on 01 August 2013.
II. Discovery Dispute
On 25 June 2014, Plaintiff served 1) Form Interrogatories (“FI”), set one, 2) Special Interrogatories (“SI”), set one, 3) Request for Production of Documents (“RPD”), and 4) Requests for Admission on Defendant.
On 28 July 2014, Defendant, through counsel, served unverified responses.
On 07 August 2014, after reviewing the unverified response, Plaintiff’s counsel sent a meet and confer letter to Defendant stating that the responses were unverified and requesting for further verified, code complaint responses to the discovery.
On 12 August 2014, Defendant’s counsel emailed stating that she was “working on” amended responses and asking for another week. Plaintiff’s counsel consented to extend the time until 19 August 2014 for the verified amended responses.
On 5 September 2014, Plaintiff’s counsel filed this motion to compel Defendant’s counsel to respond since Plaintiff’s counsel has not received any verified code-compliant discovery responses.
On 22 September 2014, Defendant served amended responses to the discovery. As best as this court can determine, these responses were verified on 9 September 2014. The responses, proofs of service and verifications are provided in the Declaration of Mr. Penhallegon in support of the reply papers.
On 23 September 2014, Defendant’s counsel filed an opposition paper and on 29 September 2014, Plaintiff’s counsel filed a reply to the opposition paper.
III. Analysis.
- Motion to Compel Reponses to FI, SI, RPD and RFA
- Mootness
If a party to whom FI, SI, RPD and RFAs are directed fails to serve a timely response, the party propounding the discovery may move for an order compelling responses. [CCP §§ 2030.290(b) (interrogatories), 2031.300(b) (response to demand), 2033.280(b) (Request for Admission); see also Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CA4th 390, 404]. The party who fails to serve a timely response waives any right to object to the discovery, including ones based on privilege or on the protection of work product. [CCP §§ 2030.290(a) (interrogatories); 2031.300(a) (response to demand for production), 2033.280(a) (response to request for admission)]. Furthermore, where verification is required, unverified response is ineffective; it is the equivalent of no responses. [See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636].
However, the court may relieve a party who fails to file a timely response from such waiver, if the party’s failure to serve a timely response resulted from “mistake, inadvertence or excusable neglect” and the party has subsequently served a response in “substantial compliance” with § 2033.220. [CCP § 2030.290; 2031.300, 2033.280; see Brigante v. Huang (1993) 20 CA4th 1569, 1584; (disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 C4th 973, 983)]
Additionally, when discovery responses are served after a motion to compel is filed, the court has substantial discretion deciding how to rule in light of the particular circumstances presented. [See Id. at pp. 408-409.] Through this discretion the court may deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if the are code-compliant. [See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 CA4th 390 at 409].
In Defendant’s opposition paper, counsel has claimed that she has served the moving party the verifications. However, there was no evidence in the opposition papers to indicate whether or not Defendant’s counsel served such verification. Nonetheless, in Plaintiff’s reply paper, Plaintiff has provided Defendant’s unverified and amended verified responses to the Court.
Upon review of the responses as set forth in the Declaration of Mr. Penhallegon, it appears that defendant’s amended responses were verified and code-compliant. Therefore, Plaintiff’s motion to compel is MOOT.
- Notice of Motion and Separate Statement
In the moving papers, Plaintiff contended that even if the responses were verified, the amended discovery responses were non-responsive and defective, which includes boilerplate objections and references to documents.
However, Plaintiff’s motion to compel is a misnomer of motion since Plaintiff not only requesting verified code-compliant responses but also request to compel Defendant to further respond to the discovery requests.
Because this motion before the court is not a motion to compel further responses, parties were not required to meet and confer and the moving party is not required to supplement a separate statement. However, if Plaintiff wishes to seek further responses for unsatisfactory responses deemed improper by the propounding party (e.g. objections or evasive or incomplete answers, boilerplate Reponses), Plaintiff may request for a motion to further responses. [CCP §§ 2030.300, 2031.310; see Best Products, Inc. v. Sup.Ct. (Granatelli Motorsports, Inc. (2004) 119 Cal. App. 4th 1181, 1189–1190 (motion to compel proper to challenge “boilerplate” responses)].
This motion must be served within 45 days after services of verified responses. Otherwise, the propounding party waives the right to compel any further responses to the discovery requests. [CCP §§ 2030.300(c), 2031.310(c), 2033.390(c) 2016.050; see also Sperber v. Robinson (1994) 26 CA4th 736, 745.]
Accordingly, this Court DENIES Plaintiff’s motion to compel to FI, SI, RPD and RFAs as MOOT.
- Sanctions.
Plaintiff makes a request for monetary sanctions. The request is code-complaint.
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.
- Monetary Sanctions
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. § 2033.280(c) (Imposing monetary sanctions for delay or failure to respond to a request for admission); Code Civ. Pro. § 2031.300(c) (Imposing monetary sanctions against losing party in motion to compel response to inspection demand).]
Even though, the Court may deny the motion to compel as moot, the court also may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though … the requested discovery was provided to the moving party after the motion was filed”].)
Whether a particular response does resolve satisfactorily the issues raised by a motion is a matter best determined by the trial court in the exercise of its discretion, based on the circumstances of the case. In many cases involving untimely responses, the propounding party will take the motion off calendar or narrow its scope to the issue of sanctions. If the propounding party proceeds with the motion, however, the trial court has the discretion to rule on the motion. The trial court might compel responses without objection if it finds no legally valid responses have been provided to one or more [discovery requests] it might deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions; it might treat the motion as one under section 2030.300 and either determine that further answers are required, or order the propounding party to “meet and confer” (§ 2030.300, subd. (b)) and file a separate statement (Cal. Rules of Court, rule 3.1020(a)(2), (c)); or it might take the motion off calendar, thereby requiring the propounding party to file a motion under section 2030.300. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 CA4th 390 at 409.)
Here, there are no facts presented to explain why Defendant failed to make a reasonable and good faith attempt to resolve the matters by providing the verification before the filing of this motion on September 5, 2014. Timely verified code-compliant discovery responses were due on 25 July 2014 and was extended to 19 August 2014. Defendant claims that she had difficulty reaching her client but does not state the particulars. The Court observes that the client verified the responses on 9 September 2014, yet the responses were not served until 22 September 2014. It took the Plaintiff’s motion to force the Defendant’s compliance to produce the amended responses and verification on 22 September 2014.
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).
Here, Plaintiff’s counsel claims to have spent 10.9 hours preparing the motion and 1.75 hours for the reply brief. However, this Court believes that the preparation of a simple motion to compel responses should have taken no more than three hours at an absolute outside. There would have been no need to prepare a Separate Statement.
Plaintiff’s counsel requests 2.8 hours in sanctions for preparing meet and confer correspondence and reviewing responses. This time is not appropriate to calculate for sanctions. Meeting and conferring is strongly encouraged to prevent the need to bring these motions, and for some motions necessary as a prerequisite to bring a motion, but the time spent meeting and conferring is not, in itself, incurred in filing the motion.[5] The Court will not award sanctions for this time.
Therefore, this Court ordered that Defendant pay the sum of $1781.25 and costs of $90 for a total of $1871.25 to counsel for Plaintiff within 20 days of the date of this order.
IV. Order.
This Court DENIES Plaintiff’s motion to compel to FI, SI, RPD and RFAs as MOOT.
Plaintiff’s request for monetary sanctions against Defendant is GRANTED IN PART. Defendant pay the sum of $1781.25 and costs of $90 for a total of $1871.25 to counsel for Plaintiff within 20 days of the date of this order.
| ____________________________
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] This Court suggests that the Opposition papers should include the exhibits addressing certain evidence in its paper.
[3] “Opposition papers must be served and filed with the court at least nine days before the hearing on the motion and all reply papers at least five days before the hearing.” [CCP§ 1005(b)].
[4] “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”
[5]The Court does not have the authority to grant sanctions for failure to meet and confer. (See Weil & Brown at ¶¶8:867, 8:1194, citing CCP § 2023.040; see Code Civ. Proc., § 2023.030, subd. (a).)
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