| Carla Dearmitt v. Solomon Asfaha, et al[s1] . |
CASE NO. 113CV257304 |
|
| DATE: 10 July 2014 |
TIME: 9:00 |
LINE NUMBER: 17 |
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 Wednesday 09 July 2014. Please specify the issue to be contested when calling the Court and counsel.
On 10 July 2014, the Motion of Defendant Solomon Asfaha (hereinafter “Defendant”) to Compel Plaintiff Carla Dearmitt (hereinafter “Plaintiff”) to answer the Special Interrogatories, Set One, along with monetary[s2] sanctions for attorney’s fee was argued and submitted.
Plaintiff did not file formal opposition to the motion.[1]
[s3] Statement of Facts
The Plaintiff brought a cause of action for motor vehicular negligence. The complaint in this matter was filed on 09 December 2013. Plaintiff allegedly suffered physical injuries and property damages.
Discovery Dispute
On 2 April 2014, Defendant’s counsel served upon Plaintiff special Interrogatories, Set One. Because Defendant’s counsel has not received any verified answers, Defendant’s counsel wrote to Plaintiff on May 12, 2014 stating that the special interrogatories were overdue and requesting verified answers.
On 23 May 2014, Defendant’s counsel again wrote to Plaintiff when Plaintiff still did not answer to the special interrogatories.
The following day, 24 May 2014, Plaintiff communicated to Defendant’s counsel that she would need more time to respond to the written discovery request. However, she did not ask for specific time limit nor was it granted.
As to date, Defendant’s counsel has not received Plaintiff’s verified answers to the Special Interrogatories, Set One.
Discussion
- I. Motion to Compel for Answers to Special Interrogatories
- a. Legal Standard
If a party fails to timely respond to requests for discovery, the propounding party may seek an order compelling the responding party to responses. Code of Civil Procedure §§ 2030.290(b) (interrogatories).
To prevail on its motion, Defendant needs to show that the discovery requests were 1) properly served; 2) the time to respond has expired; and 3) that no response of any kind has been served. (Leach v. Super. Ct., (1980) 111 Cal. App.3d 902, 905-906.)
In addition, if a party to whom interrogatories are directed fails to response in a timely manner, that party waives any right to object to the request, including ones based on privilege or the protection of attorney work product. (Code of Civil Procedure §§ 2030.290(a) (interrogatories)).
To establish that a party did not serve a timely response to interrogatories, the moving party must show that the responding party was properly served with the discovery request, 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.
- b. Analysis
Before bringing this motion, Defendant had tried to meet and confer.[2] [s4] Yet, Plaintiff failed to response in a timely manner. Thus, Plaintiff waives any right to object to the request. Defendant has provided proof of service for the first set special interrogatories. The deadline for the Plaintiff to respond has lapsed and the Plaintiff has not timely responded to any of Defendant’s discovery requests.
The motion of Defendant to compel Plaintiff to respond to Special Interrogatories is GRANTED. Plaintiff is to provide code-compliant responses within 20 days of the date of the service of this Order.
- II. Monetary Sanctions
Defendant requestsr[s5] monetary sanctions for the necessity of bringing the motion. The request is code-compliant. In the declaration in support of the motion for sanctions, Defendant’ counsel is seeking $690.00.
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.
In support of the request for sanctions, Defendant’s counsel cites Code of Civil Procedure, § 2023.010(d), and 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. Rule of Court 3.1348(a) states that in the event no opposition is timely filed or the requested discovery is provided after the filing of this motion, the court may award monetary sanctions under Discovery Act.
In addition to CCP § 2023.010(d) and Rule of Court 3.1348(a), the Defendant’s counsel cites Code of Civil Procedure § 2030.290(c). It states, in part: “If a party then fails to obey an order compelling answers [to interrogatories], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
In the motion to compel responses, Counsel declares that he has incurred $240.
While counsel listed the time he anticipates he would spend for the preparation of reply and appearing at the hearing, the Court does not grant speculative sanctions. Sanctions should be awarded only for expenses actually incurred. (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)
If Defendants’ counsel does seek to orally argue before the Court, the Defendants may bring up the issue of further sanctions at that time.
Accordingly, monetary sanction for failure to comply with the interrogatory request is GRANTED. Plaintiff is to pay the sum of $240.00 to counsel for Defendant within 20 days of the date of the filing and service of this Order.
Conclusion and Order
The motion of Defendant to compel Plaintiff to respond to Special Interrogatories is GRANTED. Plaintiff is to provide code-compliant responses within 20 days of the date of the filing and service of this Order.
Request for Monetary Sanction for failure to comply with the interrogatory request is GRANTED. Plaintiff is to pay the sum of $240.00 to counsel for Defendant within 20 days of the date of the filing and service of this Order.
[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] 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.)
Close enough 😉 [s1]
[s2]The notice says “monetary” sanctions.
[s3]The moving party did comply with the rule.
[s4]I edited this in a footnote and it could be in the body of the motion as well. This is prophylactic training of the attorneys.
[s5]Less wordy.
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