| Kim v. Johnson | CASE NO. 112CV230095 | |
| DATE: 19 December 2014 | TIME: 9:00 | LINE NUMBER: 6 |
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 motion of Plaintiff Catherine Kim to compel Defendant Robert Johnson to compel responses to Plaintiff’s requests for admissions, said Juan, form interrogatories, supplemental interrogatory and supplemental request for admissions and for monetary sanctions was argued and submitted.
Defendant filed formal opposition to the motion.
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]
All parties are reminded that “[a] motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.” Rule of Court 3.1345(d).
- Statement of Facts.
This case is about a rear end-type automobile accident which took place on 12 August 2010.
- Discovery Dispute.
On 1 May 2014, Plaintiff served Defendant with form interrogatories and requests for admissions.
On 18 June 2014, defense counsel mail unverified responses with a statement which said “verification to follow.” No verification has been received.
In a letter dated 30 October 2014, Plaintiff indicated at this motion would be filed at verifications were not received on or before 10 November 2014.[2]
Defense counsel states that they inherited this firm win prior council left private practice to become a member of this County’s bench. They are unable to locate Defendant for execution of the substitution of attorney form and verifications.
Defense counsel raises other objections that will be addressed below.
For reasons not provided to this Court, Plaintiff’s counsel does not wish to stipulate to liability.
III. Analysis.
This Court has serious concerns about the Points and Authorities provided by both counsel.
- Defective Notice of Motion .
A moving party must give written notice of the motion, stating when the motion will be heard, what grounds upon which it will be made, and the papers, if any, upon which it is based. (Code Civ. Proc. §§ 1010, 1005.)
“A motion shall (1) identify the party or parties bringing the motion; (2) name the parties to whom it is addressed; (3) briefly state the basis for the motion and the relief sought; and (4) if a pleading is challenged, state the specific portion challenged.. . .” Rule of Court 3.1112(b).
A court may reject a motion because the notice is defective. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1126-1127.)
The notice of the motion is confusing, to say the least. The title of the motion states that the motion is to “compel responses, to deem certain matters admitted, and for monetary sanctions. However, the body of the motion states that the plaintiff will seek an order compelling Defendant to serve verified responses, without objection, to plaintiffs request for admission (set one) plaintiffs form interrogatories and the supplemental interrogatory and requests for admission.
In the sanctions portion of the notice, Plaintiff states that she seeks sanctions under Code of Civil Procedure, § 2030.310, which pertains to amended answers to interrogatories. That does not appear to be an issue in this motion since no verified responses were provided.
The sanctions portion of the notice also states that sanctions are sought to under Code of Civil Procedure, § 2033.280 and that she seeks an order deeming their requests for admissions to be admitted.
Therefore, this Court questions whether it can issue an order deeming the matters in the requests for admissions to be admitted because of improper notice of the motion.
- Defendant’s Request for a Protective Order.
To the extent that the opposition papers request this Court to enter a protective order of some sort,[3] this Court declines to do so. Making a request for a protective order in opposition papers is improper because a “formal noticed motion and hearing are always required” for protective orders. (Weil & Brown, supra, at ¶8:687, citing St. Paul Fire & Marine Ins. Co. v. Super. Ct. (1984) 156 Cal.App.3d 82, 85-86.)
- Motion to Compel Discovery Responses.
“Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 636.
Rules of Court, rule 3.1113 states in pertinent part:
(a) Memorandum in support of motion. A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.
(b) Contents of memorandum. The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.
The motions are DENIED.
It is the responsibility of the moving party to provide authority for any proposition, including sanctions. (See Quantum Cooking Concepts, Inc. v. LV Assoc., Inc. (2011) 197 Cal.App.4th 927, 934.)
- Requests for Admissions (set one) and Supplemental Request for Admission.
To the extent that the motion seeks an order deeming request for admissions to be admitted, that motion is DENIED for failure to cite Code of Civil Procedure, § 2033.280 as authority for making the motion in the memorandum of points and authorities.[4]
To the extent that the motion seeks an order compelling Defendant to provide further responses to the requests for admissions under Code of Civil Procedure, § 2033.290(a), that motion is DENIED because of a failure to include a Separate Statement along with the motion as required by rule 3.1345(a)(1).[5]
- Form interrogatories and Supplemental Interrogatory.
The motion to compel responses to the interrogatories is denied because of the failure of the memorandum of points and authorities to cite Code of Civil Procedure, § 2030.300.
In the “Monetary Sanctions” portion of the points and authorities, Plaintiff states she is seeking monetary sanctions under Code of Civil Procedure, § 2030.300(d). However, according to the notice of the motion this matter is not a motion to compel further responses. If it were, the motion would be denied for failure to include a Separate Statement as required by rule 3.1345(a)(2).[6]
- Sanctions.
Plaintiff makes a request for monetary sanctions.
First, Plaintiff did not prevail on either motion.
Second, 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.”
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) (1st Dist. 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. It is the responsibility of the moving party to provide authority for any proposition, including sanctions. See Quantum Cooking Concepts, Inc. v. LV Assoc., Inc. (2d Dist. 2011) 197 Cal.App.4th 927, 934.
A party requesting sanctions must include in the notice of motion: 1) a list of all parties and attorneys against whom sanctions are sought;[7] 2) identify the type of sanction sought (e.g., monetary, issue, etc.); 3) Cite the authority that authorizes the court to grant such sanctions. Code Civ. Proc. §2023.040. A moving party’s failure to identify the parties or attorneys against whom sanctions are sought does not give proper notice to those parties or attorneys, and is therefore void. See Blumenthal v. Superior Ct. (1st Dist. 1980) 103 Cal.App.3d 317, 320. The moving party must also include a declaration setting forth facts supporting both the discovery motion and the amount of any monetary sanction sought. See Code Civ. Proc. §2023.040, California Practice Guide, Civil Procedure Before Trial (Weil & Brown), § 8:1196.
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.
Plaintiff also seeks sanctions pursuant to Code of Civil Procedure, § 2030.300(d). However, that section applies to motions made to compel further responses to interrogatories, which was not stated in the notice of the motion.
Sanctions are also sought under Code of Civil Procedure, § 2023.280(c). This Court is unfamiliar with that code section.
- Order.
The motions are DENIED in their entirety.
Should counsel wish to contest this tentative ruling, both counsel are required to appear in person. The Court notes that defense counsel offered to stipulate to liability in this matter and that should be given some consideration as a peaceful resolution of this discovery dispute.
| ____________________________
DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”
[2] 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. (See McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)
[3] Cited as authority in this matter is Brigante v. Huang (1993) 20 Cal App 4th 1569, 1583, 1586. Defense counsel neglected to inform this Court that this case was partially overruled by Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973.
[4] In the “V. Monetary sanctions” portion of the motion, Moving Party Plaintiff
[5] “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: (1) To compel further responses to requests for admission. . . .”
[6] “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: (1) To compel further responses to interrogatories. . . .”
[7] Defense counsel argues that his firm cannot be sanctioned because there are two law firms representing Defendant. However, his firm filed the opposition papers in question. Given that sanctions are being denied, this issue is of no moment.
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