Casarez v. Target Corporation		CASE NO. 113CV240620
DATE: 19 December 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 December 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 December 2014, the motions of Defendant Mitsubishi Electric US, Inc. to:

1. compel responses and documents responsive to defendants demand for production, set three, and for monetary sanctions;
2. deem the facts admitted as set forth in requests for admissions, set one, and for monetary sanctions;
3. compel responses to form interrogatories, set two, and for monetary sanctions;
4. compel responses and documents responsive to defendants demand for production, set two, and for monetary sanctions; and
5. compel responses to form interrogatories, set two, and for monetary sanctions

were argued and submitted.

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

1. Statement of Facts.

Plaintiff claims that he was injured on 4 February 2011 by an elevator door as he was exiting from an elevator at a Target Corporation store in Saratoga, California.

The complaint was filed on 1 February 2013 alleging cause of action for negligence and premises liability against all defendants.

1. Discovery Dispute.

On 6 October 2014, Defendant Mitsubishi Electric US, Inc. served all of the foregoing discovery upon Plaintiff.  Service was accomplished by overnight mail, and therefore responses would have been due 32 days later, or by 7 November 2014.

Apparently no responses were forthcoming.  The present motions were filed on 18 November 2014.

 

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III.     Analysis.

1. “Meet and Confer”

The moving papers do not allege that there was any “meet and confer” with counsel for Plaintiff prior to the filing of this motion.

While meeting and conferring is not required for a motion to compel initial responses, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  The Court has concerns when there does not appear to be any effort to resolve discovery issues without Court intervention. (See McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)

1. Interrogatories and Request for Production of Documents

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.  (See Leach v. Superior Court (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.

Defendant has provided proof of service for the first set of form interrogatories, special interrogatories, and inspection demands. The deadline for the Plaintiff to respond has lapsed and the Plaintiff has not timely responded to any of Defendant’s discovery requests.

Accordingly, Defendant’s motions to compel responses and documents responsive to Defendant’s demand for production, set three, form interrogatories, set two, demand for production, set two, and responses to form interrogatories, set two, are GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

1. Requests for Admissions

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); see also St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778.)

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.)

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. (See Demyer v. Costa Mesa Mobile Home Estates, supra, 36 Cal.App.4th 393 at p. 395, fn. 4.)

The matters set forth in Defendant’s request for admissions, set one, are deemed ADMITTED.

1. C.

Defendant makes a request for monetary sanctions in the amount of $6,510.00 as compensation for the cost of bringing all of these motions.[2]

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.”

A court’s authority to award monetary sanctions arises from statutory authority, and not from the court’s own inherent authority.  (Trans-Action Commercial Investors, Ltd. v. Firmaterr (Jelinek) (1997) 60 Cal.App.4th 352, 366.)  This authority is restricted because the Legislature has seen fit to establish such limitations.  (Jelinek, 60 Cal.App.4th at 371. See also Bauguess v. Paine (1978) 22 Cal.3d 626, 638-39.[3])

Code of Civil Procedure section 2023.040 requires a notice of motion for sanctions to be supported by a memorandum of points and authorities. Pursuant to the California Rules of Court, such memoranda “must contain” “a concise statement of the law . . . and a discussion of the statutes . . . cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).) The failure to provide the court with the legal basis for the requested relief is grounds for denying a motion. (Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal. App. 4th 927, 934 [indicating that court may deny motion not accompanied by a memorandum setting forth the legal basis for the relief requested].)

1. Requests for Production of Documents and Interrogatories

The request is barely code-compliant.  Code of Civil Procedure, § 2023.040.

Defense counsel cited the code sections pertaining to the imposition of monetary sanctions against the party who “unsuccessfully makes or opposes” a motion to compel responses to interrogatories and requests for production.  Defense counsel also cites Code of Civil Procedure, § 2023.030(a) and the case of Ghanooni v. Super Shuttle of Los Angeles  (1993) 20 Cal. App. 4^th 256, 262.

Plaintiff did not “unsuccessfully makes or oppose” a motion to compel responses to discovery.  He did not oppose the motion at all.  In the future, counsel would be advised to add the following language in the notice of motion and in the memorandum of points and authorities: “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).”

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.” 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) (2d Dist. 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 party must cite to the statutory authority that awards sanctions for a particular discovery method (e.g., Cal. Code Civ. Proc. 2030.290, 2031.310, etc.). See Quantum Cooking Concepts, Inc. v. LV Assoc., Inc. (2d Dist. 2011) 197 Cal.App.4th 927, 934.

However, in the case of Ghanooni v. Super Shuttle of Los Angeles  (1993) 20 Cal. App. 4^th 256, 262, there is language which delineates the authority of the Court to order one who has engaged in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred as a cost of bringing the motion.

2. Requests for Admissions

Requests for admissions are a different story.  Under Code of Civil Procedure, § 2033.280(c), “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”  So whether the motion is opposed or not is immaterial.

3. Conclusion

This Court will allow Defense counsel to recover as attorneys fees and costs 1 1/2 hours for the preparation of each of the six motions at the rate of $205 per hour plus $60 in flyweight fees for each of the six motions.  Therefore, plaintiff and his counsel are ordered to pay to defense counsel the amount of $1865.50 in attorneys fees and $360 in filing fees for a total of per total of $2225.50 within 20 days of the date of the filing of this Order.

1. Order.

Defendant’s motions to compel responses and documents responsive to Defendant’s demand for production, set three, form interrogatories, set two, demand for production, set two, and responses to form interrogatories, set two, are GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

The matters set forth in Defendant’s request for admissions, set one, are deemed ADMITTED.

Plaintiff and his counsel are ordered to pay to defense counsel the amount of $1865.50 in attorneys fees and $360 in filing fees for a total of per total of $2225.50 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] “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] This court notices some discrepancies between the amounts of sanctions claimed in the notice of motion and in the memorandum of points and authorities.  The Court will consider the amount given in the notice of motion as they amount to which Defendant placed Plaintiff on notice.

[3] This case is still good law despite being superseded by Olmstead v. Arthur J. Gallagher & Co. (2002) 104 Cal. App. 4th 858, because Olmstead was ultimately reversed two years later.  The court responsible for the reversal had held that authorizing monetary sanctions for bad-faith acts was not applicable to claims initiated on or before December 31, 1994.