Case Name: Cyrus Hazari v. Mandy J. Brady, et al.

Case No.: 16CV295730

Defendant Mandy J. Brady’s Motion to Compel Further Responses to Form Interrogatories, Set One; Request for Sanctions Against Plaintiff in the Amount of $1,556.00

Factual and Procedural Background

Plaintiff Cyrus Hazari (“Hazari”) is the owner of real property located at 5320 Felter Road in San Jose (“Hazari Parcel”). (Complaint, ¶1.) Defendant Mandy J. Brady (“Brady”) is the owner of real property located at 5350 Felter Road in San Jose (“Brady Parcel”). (Complaint, ¶2.) The Brady Parcel is immediately adjacent to and shares a common boundary with the Hazari Parcel. (Id.)

Defendant Brady disputes and denies the true and correct boundary line between the Brady Parcel and the Hazari Parcel. (Complaint, ¶7.) Defendant Brady also disputes and denies plaintiff Hazari’s rights in express easements over and across the Brady Parcel. (Id.) Defendant Brady graded, erected structures, fenced, modified topography, removed soil and rocks, encroached, and otherwise interfered with plaintiff Hazari’s use, possession, and occupancy of the Hazari Parcel and easement rights to the Brady Parcel. (Id.)

On May 27, 2016, plaintiff Hazari filed a complaint against defendant Brady asserting causes of action for:

(1) Quiet Title to Real Property
(2) Injunctive Relief
(3) Damages for Trespass, Nuisance, and Conversion
(4) Damages for Diversion of Surface Waters
(5) Declaratory Relief

On October 16, 2017, Brady filed an answer to the complaint and also filed a cross-complaint against Hazari. The cross-complaint alleges Hazari has failed to repair dilapidated fencing between them allowing livestock to repeatedly enter and cause injury to Brady’s property. (Cross-Complaint, ¶¶6 – 7.) Hazari also repeatedly refused and failed to abate weeds and, as a result, a fire caused $80,000 damage to Brady’s property. (Cross-Complaint, ¶8.) Hazari maintains a dilapidated structure on his property. (Cross-Complaint, ¶9.) During high winds, components of the structure blow away and onto the Brady Parcel causing damage and subjecting Brady, her husband, their animals, and invitees to risk of injury. (Id.)

In 2005, Hazari entered into a written agreement committing to maintain a certain easement area and gating on the Brady Parcel, maintain insurance and provide evidence thereof, limit and truncate certain easement rights, mediate disputes, etc., but has failed to honor and acknowledge his responsibilities and continues to avoid compliance. (Cross-Complaint, ¶10.)

Brady’s cross-complaint against Hazari asserts causes of action for:

(1) Declaratory Relief
(2) Injunctive Relief Based on Nuisance
(3) Injunctive Relief Based on Trespass

On November 22, 2017, Hazari filed a General Denial of Brady’s cross-complaint and filed a “Cross-Cross-Complaint” against Brady asserting the same five causes of action asserted in the complaint, but now adding the following causes of action:

(6) Damages for Fraud
(7) Malicious Defamation
(8) Intentional Infliction of Emotional Distress
(9) Negligent Infliction of Emotional Distress
(10) Intentional Interference with Contractual Relations
(11) Interference with Prospective Advantage
(12) Trespass
(13) Damages for Nuisance
(14) Damages for Breach of Contract

On December 11, 2017, Brady filed an answer to Hazari’s “Cross-Cross-Complaint.”

Discovery Dispute

On November 29, 2017, defendant Brady served plaintiff Hazari with Form Interrogatories (“FI”), set one.

On January 3, 2018, plaintiff Hazari served defendant Brady with his response to FI, set one.

On February 2, 2018, defendant Brady’s counsel emailed plaintiff Hazari to meet and confer with regard to plaintiff Hazari’s responses to FI, set one.

On or about April 10, 2018, plaintiff Hazari served defendant Brady with a second supplemental response to FI, set one.

Defendant Brady’s counsel found plaintiff Hazari’s second supplemental response to FI, set one, deficient and, on May 3, 2018, wrote an e-mail to plaintiff Hazari requesting a further supplemental response to FI, set one, by May 11, 2018. Plaintiff Hazari did not serve a further supplemental response to FI, set one, and did not respond to defendant Brady’s counsel’s correspondence of May 3, 2018.

On May 24, 2018, defendant Brady filed the motion now before the court, a motion to compel plaintiff Hazari’s further responses to FI, set one, numbers 8.5, 8.6, 8.7, 10.3, 14.1, 50.1, 50.2, and a request for monetary sanctions.

I. Merits.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., §2030.300, subd. (a).)

Defendant Brady contends plaintiff Hazari’s responses and supplemental responses to certain FI are evasive and/or incomplete. For example, FI, number 8.5, asks plaintiff to “State the date you returned to work at each place of employment following the INCIDENT.” In a supplemental response, plaintiff Hazari responded, “Multiple times following remissions and according to dates in my medical records.”

In opposition, plaintiff Hazari states he “wants to and believes that he should answer form interrogatories set one questions 8.5, 8.6, 8.7 and 10.3, but not without first having clarifications and agreement by meet and confer on what the meaning of INCIDENT should properly be with respect to his specific causes of action and injuries suffered.” In essence, plaintiff Hazari is objecting on the basis that the definition of INCIDENT is ambiguous. The party objecting to a discovery request bears the burden of explaining and justifying the objections. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.)

Plaintiff Hazari has not met his burden of justifying the objection. Defendant Brady’s FI, set one, included a definition for the word, “INCIDENT”: “INCIDENT includes the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” Consequently, plaintiff Hazari’s objection to FI, set one, numbers 8.5, 8.6, 8.7 and 10.3 is OVERRULED.

With regard to the remaining FI at issue, plaintiff Hazari contends he has adequately answered those interrogatories. As an example, FI, set one, number 14.1 asks, “Do YOU OR ANYONE ACTING ON YOUR BEHALF contend that any PERSON involved in the INCIDENT violated any statute, ordinance, or regulation and that the violation was a legal (proximate) cause of the INCIDENT? If so, identify the name, ADDRESS, and telephone number of each PERSON and that statute, ordinance, or regulation that was violated.” In response, Hazari wrote, “Yes. Numerous Santa Clara County planning and building regulations and ordinances, State of CA California Department of Forestry regulations, CA Penal Codes 487, 496, 594, 602, others statutes presently unknown due to limited knowledge of law.” While Hazari does refer to some statutes by number, Hazari’s response is deficient overall insofar as it identifies unspecified “regulations and ordinances.” The same is true with regard to FI, numbers 50.1 and 50.2; Hazari’s responses are insufficient.

Accordingly, defendant Brady’s motion to compel plaintiff Hazari’s further responses to FI, set one, numbers 8.5, 8.6, 8.7, 10.3, 14.1, 50.1, and 50.2 is GRANTED. Plaintiff Hazari shall provide a verified further response, without objection, to FI, set one, numbers 8.5, 8.6, 8.7, 10.3, 14.1, 50.1, and 50.2, within 20 calendar days of notice of entry of this order.

II. Oral testimony.

Hazari’s declaration in opposition requests to present oral testimony at the hearing. Hazari’s request to present oral testimony is procedurally and substantively deficient. Hazari’s request fails to comply with California Rules of Court, rule 3.1306, subdivision (b) and Hazari has not demonstrated good cause for introduction of oral testimony. (See California Rules of Court, rule 3.1306, subd. (a)—“Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.”) For those reasons, Hazari’s request to present oral testimony at the hearing is DENIED.

III. Sanctions.

Code of Civil Procedure sections 2030.300, subdivision (d) mandates an award of monetary sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.”

Since Hazari did not successfully oppose this motion, monetary sanctions are warranted. In support, defendant Brady’s counsel declares he spent 5.8 hours to meet and confer and to prepare this motion at the hourly rate of $170 and incurred a $60 filing fee. Defendant Brady’s counsel further declares he spent at least one hour to object to plaintiff’s ex-parte communications with the court concerning discovery and other deadlines. Finally, defendant Brady’s counsel anticipates spending two hours to prepare a reply and attend the hearing. The court awards sanctions only for expenses actually incurred, not for anticipated expenses. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) The court does not find the one hour expended by defendant Brady’s counsel objecting to plaintiff’s ex-parte communications relevant to this motion. Accordingly, defendant Brady’s request for sanctions is GRANTED, in part. Plaintiff Hazari shall pay $1046 to defendant Brady within 20 calendar days of notice of entry of this order.