Gallegos v. A-1 Self Storage, Inc., et al.		CASE NO. 111CV209941
DATE: 10 September 2014	TIME: 9:00	LINE NUMBER:  20

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 10 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

Continued from 5 September 2014: On 11 September 2014, the motions of Defendant Caster Family (“Defendant”) to compel David Gallegos (“Plaintiff”) to respond to Form interrogatories, set one, and for monetary sanctions and for terminating sanctions were argued and submitted.

Plaintiff did not file formal opposition to the motion.[1]

Defendant is reminded that all papers must comply with Rule of Court 3.1110(f).[2]

I.             Background

This action is for alleged misrepresentation and fraud, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, unfair business practices, negligence, misappropriation, conversion, and a violation of Civil Code § 1980, et seq.

Plaintiff alleges that an employee at A-1 Self Storage told him he had until 21 September 2010 to pay a late bill on his storage unit. He returned to the facility to pay the bill on 17 September 2010, but the unit had already been emptied with its contents sold at auction.

On 27 September 2011, Plaintiff filed a formal complaint alleging damages from this incident. Plaintiff’s original attorney Russell A. Robinson moved for relief as Plaintiff’s attorney. The Order was granted on 25 June 2013.

II.            Discovery Dispute

On 11 July 2012, Defendant served Plaintiff with form interrogatories and special interrogatories. Both were due around 10 August 2012. Plaintiff pro per never requested an extension for his response to discovery, nor did he provide any responses to the interrogatories requests.

On 14 February 2014, this Court heard a motion to compel responses to form interrogatories, set one, and special interrogatories, set one. Plaintiff did not file a formal opposition. However, at the hearing on the motions, attorney Fred Richard appeared specially for Plaintiff. During the hearing, this Court engaged in a series of questions directly to Mr. Richard concerning various failsafes missed by Plaintiff. In the end, the Court denied Defendant’s motions. However, this Court ordered Plaintiff to provide verified responses within 20 days of the hearing of the motion. The court also noted that Defendant may renew its motion upon Plaintiff’s failure to respond with the code-complaint responses.

On 30 July 2014, Defendant met and conferred with Plaintiff. Plaintiff informed Defendant that responses would be forthcoming.

As of the date of this motion, Defendant has not received any responses to Form Interrogatories and the trial date is scheduled for 15 of September 2014.

III.           Discussion

1. Motion to Compel

To prevail on its motion, a party needs to show 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.)

If a party to whom interrogatories or demand for inspection are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling responses. Code Civ. Proc. § 2030.290(b) (interrogatories). The party who fails to serve a timely response waives any right to object to the interrogatories or demands, including ones based on privilege or on the protection of work product. Code Civ. Proc. § 2030.290 (a) (interrogatories).

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. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.

Here, Defendant provided proof of service for the first set of form interrogatories. (See Exhibit A). Plaintiff had 20 days from the 14 February 2014 hearing to provide verified responses to Defendant. However, as to date, Defendant has not received verified responses to the Form Interrogatories, set one. The deadline for Plaintiff to respond has lapsed.

Accordingly, Defendant’s Motion to Compel discovery responses to set one of Form Interrogatories is GRANTED. Plaintiff is ordered to provide Defendant’s counsel discovery responses within 10 calendar days of the date of the filing of this Order.

1. Monetary Sanctions

Defendant makes a request for monetary sanctions.  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.”  See Rule of Court 2.30.

There are two reasons why the sanctions request is not code compliant.

First, the only section in the memorandum of points and authorities is Code of Civil Procedure, § 2023.010.  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.  The statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.  (See New Albertsons, Inc. v. Superior Court (Shanahan) (2008) 168 Cal.App.4th 1403, 1422.)

Second, since Plaintiff did not file opposition to Motion to Compel Defendant’s set one of Form Interrogatories, the Plaintiff has not “unsuccessfully opposed” the Plaintiff’s motions. (Code Civ. Proc. §2031.300(c).) Therefore, the reliance on §2031.300 for monetary sanctions is inapplicable.  The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a)[3], 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: “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).

Accordingly, monetary sanctions for failure to comply with the discovery responses are DENIED.

C.           Terminating Sanctions

Alternatively, Defendant seeks terminating sanctions for failure to comply with the prior court order of 14 February 2014.  The Court has two concerns at this time.

First, In most cases, a terminating sanction is justified only where a party willfully persists in disobeying a court order.  (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486.)   Terminating sanctions were proper in the absence of a prior court order where the court found that an order compelling discovery would be futile.  (See Vallbona v. Springer (1996) 43 Cal. App. 4th 1525, 1545; Do It Urself Moving & Storage, Inc. v. Broan, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 35-36.)

Second, the prior order was not pursuant to the motion but rather pursuant to a stipulation which the Court incorporated  in its order.  The primary purpose behind sanctions is to enable a party to obtain the information sought, rather than to punish a disobedient party.  (Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal. App. 4th 256, 262.)  A terminating sanction without prior court order, and where the discovery sought is forthcoming, would not comport with the purposes behind sanctions.

Given the imminent trial date, this Court believes that the best recourse at this time is to CONTINUE the hearing on this motion to Thursday, 11 September 2014 at 9:00 a.m. in this Department.  If Responding Party Plaintiff has not provided code compliant responses without objection by the close of business on Wednesday, 10 September 2014, the Court will probably GRANT the motion for terminating sanctions.

1.            Order

Defendant’s Motion to Compel discovery responses to set one of Form Interrogatories is GRANTED. Plaintiff is ordered to provide to Defendant’s counsel code compliance discovery responses within 10 calendar days of the date of the filing of this Order.  Objections are deemed waived.

Accordingly, monetary sanctions for failure to comply with the discovery responses are DENIED.

The hearing on this motion is CONTINUED to Thursday, 11 September 2014 at 9:00 a.m. in this Department.  If Responding Party Plaintiff has not provided code compliant responses without objection by the close of business on Wednesday, 10 September 2014, the Court will probably GRANT the motion for terminating sanctions.

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] “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.”

[3] Rule 3.1348 renumbered effective January 1, 2009; adopted as rule 341 effective July 1, 2001; previously renumbered as rule 3.1030 effective January 1, 2007