Converge Medical Solutions v. Foothill Community etc.		CASE NO. 113CV243539
DATE: 10 July 2014	TIME: 9:00	LINE NUMBER: 11

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 Plaintiff Converge Medical Solutions (“Plaintiff”) to compel DefendantFoothillCommunityHealthCenter (“Defendant”) to respond to Plaintiff’s second set of discovery requests was argued and submitted.[1]

Defendant filed formal opposition to the motion.

I.  Statement of Facts

This case arises out of a contract dispute regarding medical waste management services. On November 5, 2012, FoothillCommunityHealthCenter (“FCHC”) and Converge Medical executed a contract for Converge Medical to perform services for FCHC. Co-Defendant Steven Inguillo signed the contract on behalf of FCHC. Converge Medical began performing pursuant to the contract but Defendant refused to pay.

II.  Discovery Dispute

On March 3, 2013, Plaintiff filed a complaint seeking relief in the sum of $43,378.24 against Defendant for multiple causes of action including breach of contract, common counts: account stated, and common counts: open book account.

On April 30, 2013, Salvador Chavarin filed an answer to the complaint pro per, as the CEO of FCHC.

On June 12, 2013, Plaintiff filed a motion to strike Defendant’s verified answer because Mr. Chavarin is not a member of the California Bar. Judge Monahan denied the motion on July 18, 2013.

On July 18, 2013, Defendant substituted in Eugene Flemate as representation for FCHC instead of Salvador Chavarin.

On July 31, 2013, Defendant filed Foothill’s first amended answer and affirmative defenses to Plaintiff’s verified complaint, alleging twelve (12) affirmative defenses while denying and admitting in part Plaintiff’s allegations.

On September 24, 2013, Defendant filed a motion for leave to file a compulsory cross-complaint. Judge Cabrinha granted the motion on October 1, 2013.

On October 2, 2013, Defendant filed a cross-complaint for rescission of contract based on fraud, misrepresentation, and unilateral mistake of fact. Alleging that at the time the contract in dispute was signed, Steven Inguillo, who is now an employee, was only an independent contractor who was not, and never has been, authorized to sign contracts on behalf of FCHC.

On December 12, 2013, parties stipulated to amend Plaintiff’s complaint to include Steven Inguillo as co-Defendant instead of DOE 1, making the Defendants to the suit FCHC, Steven Inguillo, and DOES 2-20.

On February 4, 2014, Steven Inguillo filed his answer, including twelve (12) affirmative defenses, to Plaintiff’s verified first amended complaint.

On March 7, 2014, FCHC filed an answer to the Plaintiff’s verified first amended complaint.

For the current motion, Plaintiff first served its second set of discovery, including special interrogatories, requests for admissions, and request for production of documents, on December 3, 2013. After not receiving any of the responses that were due on January 8, 2014, Plaintiff’s counsel sent a letter requesting responses to Defendant’s counsel dated January 23, 2014.

On May 6, 2014, Plaintiff’s counsel sent a letter to Defendant’s counsel requesting responses and allowing the Defendant an additional ten (10) to respond; otherwise this motion to compel would be filed and served.

On May 20, 2014, Plaintiff’s counsel called Defendant’s counsel, left a message, and followed up with an e-mail apprising Defendant’s counsel of the situation.

Later that day, on May 20, 2014, Defendant’s counsel responded via e-mail stating that the discovery responses were being prepared and that the proposed mediators were not suitable.

On May 29, 2014, Plaintiff filed this motion to compel responses to the second set of discovery requests propounded to Defendant FCHC.

On July 3, 2014, Defendant FCHC filed opposition to Plaintiff’s motion and attached verified responses to the discovery requests propounded against it. Within those documents, Defendant states that they sent responses to Converge Medical’s RFAs on May 21, 2014, and that they sent responses to the special interrogatories and requests for document inspection on July 3, 2014. Defendant’s opposition papers are in violation of Rule of Court 3.1110(f).[2]

III.  Analysis

               A. Mootness

In papers filed on July 3, 2014, defense counsel filed untimely, yet verified, responses to the forgoing discovery requests.  The responses otherwise appear proper as to form.

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.  In Sinaiko 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.

While the discovery responses were untimely, the Court has a copy of the verified responses so the motion to compel is MOOT.

If Plaintiff believes that the responses are inadequate and the Plaintiff wishes to seek further responses, Plaintiff must do so by filing a motion to compel further responses which includes a separate statement pursuant to Rule of Court 3.1345(a).

This Court will find that the motion of Plaintiff to compel responses to Plaintiff’s special interrogatories, set two, and request for production of documents, set two, is MOOT without prejudice to a motion to compel further responses.

B.  Sanctions

Plaintiff makes a request for monetary sanctions.  Even if the motion to compel is moot, this Court may still consider the issue of monetary sanctions.

The request is not code-compliant.  Code of Civil Procedure, section 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.

Code of Civil Procedure, 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.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.”  As such, section 2023.030 does not provide an independent basis for an award of sanctions.  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.

Plaintiff has also failed to identify the person, party, or attorney against whom the sanction is sought in the notice of motion.

Furthermore, Plaintiff has improperly cited the authority to required support its grant of monetary sanctions in its memorandum of points and authorities. Not only are the sections incorrectly stated, Plaintiff also fails to indicate with subdivision on which it relies.

First, in support of sanctions, Plaintiff generally sites Code of Civil Procedure sections 2030.290, 2031.300 and 2033.220, stating that a court must impose sanctions on a party that has engaged in a misuse of the discovery process without substantial justification. That is incorrect. Section 2030.290(a) speaks of waiver with respect to interrogatories and section 2030.290(b) allows for the motion to compel. Section 2030.290(c) says the court shall impose monetary sanctions unsuccessfully opposing a motion to compel responses without substantial justification.

Plaintiff then cites Code of Civil Procedure, section 2033.220, which says nothing about sanctions, speaks of scope of responses, and is only applicable when responses have been submitted. At the time of the filing of the motion papers, Plaintiff did not indicate that any responses were received. Defendant, however, alleges to have sent responses to RFAs, set two, on May 21, 2014.

Lastly, Plaintiff cites section 2023.010. This section defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction. Section 2023.030 provides that sanctions may be imposed for misuse of the discovery process.

While Plaintiff correctly relies on Sinaiko Healthcare Consulting to preserve the issue of sanctions even if the motion is moot, Plaintiff fails to comply with rules of court and cites the improper authority to support the award of sanctions.

The request for monetary sanctions is DENIED.

 

 

///

 

///

 

///

 

IV.  Order

The motion of Plaintiff to compel responses to Plaintiff’s special interrogatories, set two, and request for production of documents, set two, is MOOT without prejudice to a motion to compel further responses.

Plaintiff’s request for monetary sanctions is DENIED.[3]