Hatter v. Nguyen		CASE NO. 112CV220737
DATE: 10 July May 2014	TIME: 9:00	LINE NUMBER: 3

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 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, the motion of Andrew Nguyen (“Defendant”), to compel Carmella Hatter (“Plaintiff”) to respond To Defendant’s form interrogatories, set one and request for production of documents, set one[s1] ,[1] was argued and submitted.  Defendant also requested monetary sanctions[s2]  from Plaintiff.

Plaintiff did not file formal opposition to the motion.[2]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[3]

Statement of Facts

[s3]

Plaintiff filed a complaint against Defendant for injuries as a result of a motor vehicle incident that occurred on 17 March, 2010.  Plaintiff claimed wage loss, hospital and medical expenses, general damage, loss of use of property, and loss of earning capacity.

Discovery Dispute

On 05 May, 2014, the discovery response for form interrogatories and production of documents from Plaintiff was due, but Plaintiff did not respond.

On 08 May, 2014, Defendant’s counsel sent a reminder letter to Plaintiff regarding the lack of response, and responses were required by 19 May, 2014.  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.)

 

Plaintiff did not respond to the reminder letter.

Analysis

A.  Interrogatories

The response is due within 30 days from the date the interrogatories were served.  Code Civ. Proc. § 2030.260(a).  The response time can be extended for service by mail, overnight delivery or fax.  Code Civ. Proc. § 1013.  [s4]

B.  Requests for Production of Documents

A CCP § 2031.010 demand may be used to obtain inspection of “documents,” tangible things or land in the possession, custody or control of another party. Code Civ. Proc. § 2031.010(a).  Inspection is limited to matters within the permissible scope of discovery (“relevant to subject matter”) and not protected by privilege, work product, right of privacy, etc.  Code Civ. Proc. § 2031.010(a).

[s5]           C.  Motion to Compel Responses to Discovery Requests

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.)

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(a) (interrogatories); § 2031.040; § 2031.260(a); § 2031.300(a).  To establish that a party fails to serve a timely response for a request for admission, the moving party must show that the responding party’s

Moreover, if a party to whom interrogatories, document production requests, and request for admissions are directed fails to serve timely responses, that party waives any right to object to the requests, including ones based on privilege or the protection of attorney work product. (CCP §§ 2030.290(a), 2031.300(a); 2033.280(a).)

[s6] Here, Plaintiff did not respond to the form interrogatories from Defendant and did not provide justification for the delay.  Defendant demonstrated that he properly served discovery request and Plaintiff did not timely respond to the request.  Plaintiff still failed to respond even after the reminder letter from Defendant’s counsel.

Accordingly, the motion of Defendant to compel response to discovery request and production of documents is granted.  Plaintiff also waives[s7]  any right to object for failure to timely respond to discovery requests.  Plaintiff is ordered to produce code-compliant responses without objections within 20 days of the date of the mailing of this Order.

Sanctions

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every[s8]  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.”

Plaintiff is requesting monetary sanctions for failure to respond to form interrogatories.

Concerning the monetary sanction demand, Plaintiff has not unsuccessfully opposed the Plaintiff’s motions. (Code Civ. Proc. § 2030.290; 2031.300). Therefore, reliance on §§ 2030.010, 2030.290(c), and 2030.300(c), which impose sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response” is inapplicable [s9] because PPlaintiff have not unsuccessfully opposed the defendant’s motion. 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 in addition to the citation of Rule of Court 3.1345(d) 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) 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.”

Here, Defendant’s request is not code compliant.  The notice named Plaintiff, specified the sanctions, and identified the reasons for sanctions.  However, Defendant did not reference Rules of Court 3.1348(a) for an award of sanction by the Court since no opposition to the motion was filed[s10] .  [s11] The request for monetary sanction is denied.

Order

The motion of Defendant Nguyen to compel Plaintiff to respond to Defendant’s form interrogatories, set one and request for production of documents, set one[s12] , is GRANTED.  Plaintiff is ordered to produce code-compliant responses without objections within 20 days of the date of the mailing of this Order.

The request for monetary sanctions by Defendant is DENIED.[4]