Bosley v. Lien Enforcement, Inc. CASE NO. 113CV247332
DATE: 13 June May 2014 TIME: 9:00 LINE NUMBER: 10
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 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the Plaintiff’s motion to compel responses to (1) Special Interrogatories (Set One); (2) Form Interrogatories (Set One); (3) Requests for Production of Documents (Set One); and (4) Monetary Sanctions in the Amount of $1,340.00 was argued and submitted. The Defendants did not file formal opposition to the motion.

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

Statement of Facts

Plaintiff alleges Defendants negligently provided a negative report based on a disputed debt to credit bureaus causing monetary and emotional damages. The disputed debt concerns a motor home the Plaintiff claims was sold in 2006. This motor home in 2008 was allegedly towed, and with some fines, penalties, tow or storing charges, resulted in an amount of about $2,259.72 with interest. The Defendants allegedly own and manage the collection of this amount (“Debt”). The Plaintiff argues that he has disputed this Debt with the Defendants because he does not own the vehicle. The Plaintiff claims that despite the correspondence with the Defendants concerning the disputed Debt, the Defendants nonetheless reporting this as a negative report on the Plaintiff’s credit record on or about February 2013. This negligent action, according to the Plaintiff, prevented the Plaintiff from achieving a 3% refinancing rate on a note and instead received a 4.5% rate, a difference of at least $44,000. The Defendants deny generally and specifically the allegations contained in the Plaintiff’s Complaint.

Discovery Dispute

The Plaintiff states the Defendant has failed to provide verified responses to special and form interrogatories, as well as provide for the production of documents, as requested.

According to the papers filed with the court, the Plaintiff’s special interrogatories of Exhibit A sent on 11 October 2013 cites generally to Code of Civil Procedure §2030 to provide notice of compliance timelines requiring a response within 30 days, plus 5 days if served by mail. It does not include a specific deadline. Exhibit B was the form interrogatories. Again no specific date was identified by Plaintiff within these documents. The form accordingly provides only the generic rule that the answering party must respond within 30 days of being served with them. Exhibit C concerns the request for documents and requests documents to be produced to the attorney’s law offices within 35 days.

Exhibit D of the court file includes correspondence between the respective parties’ attorneys:

• In a written letter dated 01 December 2013, Mr. Leal, attorney for Plaintiff requests to “meet and confer regarding [Defendant’s] lack of discovery response” to Mr. Douglas, of Dix & Associates, the attorney firm of record for the Defendant, within two weeks to avoid “an unnecessary discovery motion.”
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• In a written letter dated 11 December 2013, Mr. Leal again writes to Mr. Douglas to follow up on his 01 December letter, noting that Mr. Leal has not heard from the Defendant, and notifies that Mr. Leal will move forward with a motion to compel responses and for sanctions.
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• On 12 May 2014, Mr. Leal again writes to inform Mr. Douglas of his intention to bring a motion to compel and for sanctions on the 6th or 13th of June.
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• On 12 May 2013, Matt Leal initiated an email exchange with Lloyd Douglas Dix asking for preferences for a trial timeframe due to a trial setting conference the following day, preferring late August or September due to travel plans and the need to compel discovery. In the response back the next day, 13 May 2013, Lloyd Douglas Dix says “September works for me. Client responded to all discovery. Surprised you never received it. Need to go back and check and see if the paralegal ever formalized it. I will have it to you by close of business tomorrow.”
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On 22 May 2013, less than two weeks after this exchange, Mr. Leal has filed a motion to compel discovery because, according to his declaration: “To date, the Defendant has not served any responses (or verification of responses) to the form interrogatories, special interrogatories or requests for production.”

Analysis

Code of Civil Procedure §2030.260(a) and 2031.260(a), require that parties respond within 30 days of service of interrogatories or demand for inspection. If notice is served by mail, §1030 extends this deadline by five calendars if the mailing address is within California.

On 11 October 2013, Attorney for the Plaintiff served by mail the requests contained in this court file’s exhibits to the attorney of record for the Defendants. By code Defendants would have needed to respond by 16 November 2013. Because this date is a Saturday, §2016.060 extends this time to 18 November 2013.

The court file shows no indication of either the court extending the time for responses (§2030.260(a); §2031.260) or any written confirmation of a stipulation by the parties to extend this deadline (§2030.270, §2031.270). Therefore, the 21 February 2014 deadline referenced by the Plaintiff does not seem to have any obvious basis nor does it appear relevant to the motion.

Nonetheless, §2030.290(b) and §2031.300(b) allow for the party making the demand to move for a court order compelling responses to discovery requests against a party that fails to serve a timely response. Here, a timely response would have been 18 November 2013.

While the code provides for Mr. Leal to bring a motion to compel, he still attempted to meet the requirements of §2016.040 to meet and confer, evident in his declaration and Exhibit D of the court file when he informally tried to resolve the issues of discovery with the Defendant’s attorney on 01 December 2013.

Additionally, Mr. Leal could have followed up with the Defendant’s attorneys in person at the Case Management Conference on 09 January 2014, but the Defendant failed to show and the conference was re-scheduled for 06 March 2014. At that conference, a Trial Setting Conference was set for 13 May 2014 which became the subject matter of the email exchanges between the parties’ attorney’s on 12 and 13 May 2014 where the Defendant’s attorney promised Mr. Leal to have the discovery responses to Mr. Leal by the close of business 14 May 2014. This failed to happen.

Accordingly, the Plaintiff’s motion to compel responses to (1) Special Interrogatories (Set One); (2) Form Interrogatories (Set One); and (3) Requests for Production of Documents (Set One); is GRANTED.

Sanctions

Plaintiff makes a request for monetary sanctions. The request is not code-compliant.

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 also Rule of Court 2.30.

The Plaintiff’s attorney, in the notice in the motion, requested “an order that Defendant pay a monetary sanction in the sum of $1,340 for reasonable costs and attorneys’ fees pursuant to Code of Civil Procedure sections 2023.030(a), 2030.290(c), and 2031.300(c).”

The first cited rule, 2030.030(a), states “the court may impose a monetary sanction ordering one engaging in the misuse of the discovery process…pay reasonable fees…incurred by anyone as a result of that conduct.” The memorandum cites the “Defendant’s refusal to provide any responses” to the Plaintiff’s discovery requests as the misuse of the process that has left the Plaintiff with “no choice” but incur fees and costs to bring this motion totaling $1500, “as shown in the declaration.” The facts set forth to justify the monetary sanction amount is based on six work hours (including two hours expected to incur) at an hourly rate of $300, plus $60 filing fee, totaling $1560. The $1500 and $1560 amounts are discrepancies to the Motions’ notice and the caption that requests a monetary sanction amount of $1340. Furthermore, sanctions may only be awarded for expenses actually incurred. (§2023.030(a) and Tucker v. Pacific Bell Mobile Services (2010) 186 Cal. App. 4th 1548, 1551). Therefore, the declaration does not correctly set forth the facts supporting the amount of the monetary sanction sought by the Motion as required by §2030.040.

Concerning the interrogatories and inspection demand, the Defendant has not unsuccessfully opposed the Plaintiff’s motions, as required in Code Civ. Proc. §§ 2030.290 (c) and 2031.300 (c). Therefore, the reliance on §§ 2030.290, 2031.300 for monetary sanctions is inapplicable in this case because the Defendant has not unsuccessfully opposed the Plaintiff’s motion to compel responses to set one interrogatories (special and form) and set one inspection demand. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where 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.”

Accordingly, monetary sanctions for failure to comply with the interrogatory requests and inspection demand are DENIED .

Order

The Plaintiff’s motion to compel responses to (1) Special Interrogatories (Set One); (2) Form Interrogatories (Set One); and (3) Requests for Production of Documents (Set One); is GRANTED. Defendant is ordered to provide code compliant responses within 20 days of the date of the filing of this Order. Objections are deemed waived.

The Plaintiff’s request for monetary sanctions is DENIED.