Ngo v. BoBo Drinks, Inc., et al.		CASE NO. 114CV261430
DATE: 3 October 2014	TIME: 9:00	LINE NUMBER: 15

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 motions of Defendants Windi Trinh, Steven Trinh, and BoBo Drinks, Inc. to compel initial responses to their respective Requests for Production of Documents and Special Interrogatories, Sets One from Plaintiff Becky Ngo was argued and submitted. The motion of BoBo Drinks, Inc. to have matters in Defendant’s Requests for Admission, Set One was also argued and submitted[1]

Defendants filed formal opposition to the motion.

I.       Statement of Facts.

This matter arises out of a complaint for fraud, unfair business practices, conversion, and conspiracy. Plaintiff alleges that Defendants induced Plaintiff into paying certain monies in exchange for establishing a franchise location in San Jose. Plaintiff also incurred expenses from developing the property for the proposed franchise location. Defendants denied each allegation in the complaint and filed a cross-complaint for breach of contract.

II.      Discovery Dispute.

On 8 July 2014, each Defendant served by mail Requests for the Production of Documents and Special Interrogatories on Plaintiff. Defendant BoBo Drinks, Inc. also served by mail Requests for Admission on Plaintiff. Plaintiff’s counsel was away on 8 July 2014, returning on 10 July. From 11 August 2014 through 18 August 2014, counsel was again away. Plaintiff never served responses to the discovery.

On 4 September 2014, Defendants filed four motions to compel initial responses to the at-large discovery. On 23 September 2014, Plaintiff opposed the motion by stating that code-compliant responses to each form of discovery were served.

III.     Analysis.

A.  Motion to Compel Initial Responses to Interrogatories and Requests 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.  (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.

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

Plaintiff argues that the motion was unnecessary because responses were served that were in substantial compliance with the Discovery Act. See Code Civ. Proc. §§2030.290(a), 2031.300(a). These sections refer to the waiver of objections in the responses, not to the propriety of granting or denying the motion before the Court. Plaintiff does not argue that the Court should relieve the waiver of objections. Even if the Court were to entertain such a request, Plaintiff’s responses fall short of substantial compliance with the Discovery Act. Plaintiff’s responses are unverified. See, e.g., Appleton v. Superior Ct. (3d Dist. 1988) 206 Cal.App.3d 632, 636 (unverified responses are tantamount to no responses at all). Plaintiff also failed to provide a proof of service for these responses. To the extent that Plaintiff seeks any relief under sections 2030.290(a) and 2031.300(a), that relief is denied.

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

         B. Motion to have Matters Deemed Admitted

Code of Civil Procedure, § 2033.280 states:

“If a party to whom requests for admissions are directed failed to serve a timely response, the following rules may apply:

(a) The party to whom the requests for admissions are directed waives any objection to the requests, including one based on privilege or on the protection for work product. . . .”

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted as well as for monetary sanctions under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the requests for admissions that is in substantial compliance with Section 2033.220.  It 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 admissions necessitated this motion.”

Defendant BoBo Drinks, Inc. served Requests for Admission, Set One on 8 July 2014. Plaintiff never served verified responses to these Requests for Admission.

Plaintiff argues, as she did with the other discovery responses, that the motion should not be granted because she served responses in substantial compliance with the Discovery Act. These Requests for Admission were not verified and no proof of service was attached. These responses were not in substantial compliance with section 2033.220.

The motion is GRANTED without prejudice to Plaintiff for later relief from admissions.  Their requests for admissions are deemed ADMITTED.

         C.  Sanctions.

Defendants make a request for monetary sanctions.  The request is code-compliant.

If the responding party provides code-compliant, verified, discovery responses prior to the motion, the responding party may claim that the motion is moot and should thus go off calendar.  InSinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409, 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.

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.)

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 Court may impose monetary, evidentiary, contempt or terminating sanctions where a party is engaging in conduct that is a misuse of the discovery process.  (See Code Civ. Pro. § 2023.030).  Misuses of the discovery process include but are not limited to:

(d) Failing to respond or to submit to an authorized method of discovery.  (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (Code Civ. Pro. § 2023.010).

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). However, where the Court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust” no monetary sanctions shall be imposed. (See e.g., Code Civ. Proc. § 2031.060(h)).

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).

Plaintiff’s counsel asserts that sanctions are unjustified because counsel was out of town both on the day that the discovery was served and on the day discovery was due. Counsel submits her out-of-office e-mail as evidence of this. While the Court believes counsel was out of the office when the discovery was propounded, she does not provide any evidence to show that opposing counsel knew of this. Even if opposing counsel did know, the discovery was served via mail, meaning they would not arrive until after counsel returned, which is why the Code of Civil Procedure allows five more days to respond to such service.

The fact that counsel was out of the office on the day the responses were due is immaterial. Counsel could have provided the responses earlier, especially given that the due date was only two days after counsel left for her business. Plaintiff’s counsel also does not provide any justification for what she was doing between those two time frames that would prevent counsel and her client from responding to discovery. The Court also has no evidence from Plaintiff’s counsel indicating that she contacted Defendants’ counsel prior to the due date. This appears to be sloppy on the part of counsel. The Court will not find substantial justification in lack of organization or timekeeping.

However, Plaintiff’s counsel also asserts that the fault lies entirely with her and thus only she should be subject to the sanctions. The Court agrees with this assessment and will not find fault in the client’s non-responsiveness. Defendants have not shown that the client had knowledge of the pending discovery responses.

Defendants’ counsel declares that he bills for $410.00 per hour. This is a reasonable billing rate within Santa Clara County.

Defendants’ counsel declares that for the four motions he filed he spent one hour for each one preparing it, totaling four hours. Three of the motions are exactly the same, except for changing the name of the moving Defendant. The Court does not believe that these three motions, following the exact same law, and using the exact same verbiage each took the exact same amount of time. One of these motions was the ‘original’ with the others likely being copy-pasted. The Court will award sanctions in the amount of one hour of work for the three motions relating to Special Interrogatories, Sets One and Requests for the Production of Documents, Sets One. The Court will also award sanctions in the amount of one hour of work for the motion relating to the Requests for Admission, for a total of two hours.

Counsel also seeks filing fees for the costs of the motions. Because these motions could have been filed as a single motion, and because discovery sanctions are remedial, not punitive, in nature, the Court will award only the amount of one filing fee of $90.00.

Defendants’ request for monetary sanctions is GRANTED IN PART in the amount of $910.00 against Plaintiff’s counsel who shall pay this amount to Defendants’ counsel within 20 days of the date of this order.

IV.     Order.

Defendants’ motion to compel responses to Defendants’ discovery requests is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

The motion is GRANTED without prejudice to Plaintiff for later relief from admissions.  Their requests for admissions are deemed ADMITTED.

Defendants’ request for monetary sanctions is GRANTED IN PART in the amount of $910.00 against Plaintiff’s counsel who shall pay this amount to Defendants’ counsel within 20 days of the date of this order.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] The matters were filed as four separate motions, two from BoBo Drinks, Inc. and one from each other respective Defendant. Because the factual matters are the same, the Court will treat the motions as if they were all filed as one single motion.