Case Number: 19STCV12873 Hearing Date: November 07, 2019 Dept: 4A

Motion to Compel Form Interrogatories (Set One); Motion to Attendance at a Deposition

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On April 12, 2019, Plaintiff Cora Suttles (“Plaintiff”) filed a complaint against Defendants M’Dears Bakery & Bistro, LLC, Tiffany Shug, Kelton Shug, and Marissa Shug alleging negligence, premises liability, negligent hiring and supervision, negligent infliction of emotional distress, and negligence per se for an altercation that occurred on December 23, 2018.

On June 10, 2019, Defendant/Cross-Complainant M’Dears Bakery & Bistro, LLC filed a cross-complaint against Cross-Defendant Larry Hester (“Cross-Defendant”) seeking implied indemnity, equitable indemnity, total contribution, and comparative contribution.

On October 9, 2019, Defendant/Cross-Complainant M’Dears Bakery & Bistro, LLC filed a motion to compel responses to Form Interrogatories (Set One) pursuant to California Code of Civil Procedure section 2030.290, subd. (b).

Also on October 9, 2019, Defendant/Cross-Complainant M’Dears Bakery & Bistro, LLC filed a motion to compel attendance at a deposition pursuant to California Code of Civil Procedure section 2025.450, subd. (a).

Trial is set for October 9, 2020.

PARTY’S REQUESTS

Defendant/Cross-Complainant M’Dears Bakery & Bistro, LLC (“Moving Party”) asks the Court to compel Cross-Defendant to provide responses to Form Interrogatories, (Set One) no later than November 21, 2019 due to Cross-Defendant’s failure to provide timely responses.

Moving Party also asks the Court to compel the attendance and testimony of Cross-Defendant’s at a deposition due to Cross-Defendant’s failure to appear at a prior deposition.

Moving party further asks the Court to impose monetary sanctions of $4,037.05 against Cross-Defendant for his abuse of the discovery process.

LEGAL STANDARD

Compel Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc. § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Compel Deposition

California Code of Civil Procedure section 2025.450, subdivision (a) provides: “If, after service of a deposition notice, a party to the action or . . . managing agent . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

California Code of Civil Procedure section 2025.450, subdivision (b) provides: “A motion under subdivision (a) shall comply with both of the following:

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Sanctions

Sanctions are mandatory in connection with a motion to compel responses to interrogatories and a motion to compel the attendance at a deposition against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2025.450, subd. (c), 2030.290, subd. (c).)

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010.)

California Rules of Court, rule 3.1348, subdivision (a) 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.”

DISCUSSION

On July 11, 2019, Moving Party propounded Form Interrogatories (Set One) on Cross-Defendant. (FROG Jolly Decl., ¶ 4, Exh. A.) Moving Party allowed Cross-Defendant to provide verified responses without objections by September 30, 2019. (FROG Jolly Decl., ¶ 5, Exh. B.) Cross-Defendant did not provide any discovery responses by September 30, 2019. (FROG Jolly Decl., ¶ 6.)

On July 29, 2019, Moving Party served a notice of deposition on Cross-Defendant scheduling a deposition for September 3, 2019. (DEPO Jolly Decl., ¶ 3, Exh. A.) Cross-Defendant failed to appear for his deposition on September 3, 2019. (DEPO Jolly Decl., ¶ 4, Exh. B.) Cross-Defendant’s deposition was rescheduled for September 25, 2019. (DEPO Jolly Decl., ¶ 5, Exh. C.) Cross-Defendant failed to appear for his deposition on September 25, 2019. (DEPO Jolly Decl., ¶ 6, Exh. D.)

The Court finds both motions are properly granted. Cross-Defendant failed to respond to written discovery and failed to appear at his deposition. Cross-Defendant does not oppose these motions. The Court finds that Cross-Defendant did not act with a substantial justification and that there are no circumstances that would make the imposition of sanctions unjust.

Moving Party’s request for $4,037.05 in monetary sanctions consists of $1,040 in preparing the moving papers, $1,600 in traveling to and appearing at the hearings, $50 in parking, $123.30 for two $61.65 filing fees, and $1,223.75 in court reporter and deposition services. (Both Jolly Decl., ¶ 7.) Mr. Jolly charges $200 an hour. (Ibid.) When calculated out, Mr. Jolly is seeking just under 5.25 hours in drafting the moving papers and 8 hours in traveling to and appearing at the hearings. The Court finds the requested sanctions to be unreasonable. The motions are relatively straight-forward, parking is far less expensive, and the hearings are to take place in the same courthouse, in the same department, on the same date, consecutively. Further, Moving Party has failed to substantiate the $1,223.75 in “court reporter and deposition services,” by providing bills for the services provided. In light of these deficiencies, the Court finds $1,223.30 ($200/hr. x 3 hrs. plus $500 to cover deposition cancellations fees plus two $61.65 filing fees) to be a reasonable amount of sanctions.

Therefore, the motions are GRANTED.

The Court orders Cross-Defendant to serve verified responses without objections to Moving Party’s Form Interrogatories, (Set One) within 30 days of this ruling.

The Court also order Cross-Defendant to appear at and testify at a deposition within 30 days of this ruling on a date and time mutually agreeable between the parties.

The Court further orders Cross-Defendant and his counsel of record to pay Moving Party $1,223.30 within 30 days of this order.

Moving Party is ordered to give notice of this ruling.