Nahat v. Ballet San Jose, Inc.		CASE NO. 112CV238452
DATE: 1 August 2014	TIME: 9:00	LINE NUMBER: 7

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 31 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 1 August 2014, the motion of Defendant Ballet San Jose Silicon Valley, Inc. (“Defendant”) to compel further responses to special interrogatories and to requests for production of documents was argued and submitted.

Plaintiff Dennis Nahat (“Plaintiff”) filed a formal opposition to the motion.

Statement of Facts

Plaintiff alleges that Defendant: wrongfully terminated him due to discrimination based on age and sexual orientation; breached a contract that Plaintiff would be terminated only for good cause; and, converted certain personal property of Plaintiff.

On 5 February 2014, counsel for Plaintiff, Rachel Dodson of Kerr & Wagstaffe LLP, represented to Defendant that she anticipated filing an amended complaint the following week.

On 7 March 2014, Defendant served her Special Interrogatories, Set One, Request for Production of Documents, Set One, and form interrogatories.

On 20 March 2014, counsel for Plaintiff, Rachel Dodson of Kerr & Wagstaffe LLP, requested an extension of time.  Counsel for Defendant offered an extension of time, conditioned on Plaintiff filing the amended complaint—promised in February—by 31 March 2014.  Plaintiff did not file the amended complaint by 31 March 2014.

On 7 April 2014, counsel for Plaintiff, Jim Wagstaffe of Kerr & Wagstaffe LLP (“Wagstaffe”), requested a two week extension for the discovery.

On 8 April 2014, counsel for Defendant offered the two week extension, conditional on Plaintiff’s provision of discovery responses in the related federal action by 14 April 2014 so that the discovery would be available prior to Plaintiff’s deposition on 23 April 2014.  That day, counsel for Plaintiff, Dax Craven of The Law Offices of Dax Craven (“Craven”), thanked counsel for Defendant.  Defendant did not receive discovery responses in the related federal action by 14 April 2014.

On 22 April 2014, Plaintiff provided unverified responses to the request for production of documents.

On 23 April 2014, counsel for Defendant met and conferred with Craven regarding the discovery responses.  On 5 May 2014, Craven sent counsel for Defendant an email with a link to an online document sharing service, Sugarsync, stating that the outstanding discovery responses were available on that website via the link.  However, the online folders were empty, and counsel for Defendant requested PDFs instead, and also offered to send a messenger to pick up the discovery responses.

On 7 May 2014, Craven sent another email with a link to Sugarsync, this time leading to folders that had the same discovery responses provided on 22 April 2014, and unverified, unsigned responses to the special interrogatories.   The folder also included documents that appeared to be subject to the attorney-client privilege and inadvertently produced.  Counsel for Defendant notified counsel for Plaintiff of those documents, and of deficiencies of the discovery responses.

On 13 June 2014, after failing to receive amended responses to the requests for production of documents or the special interrogatories, Defendant filed the instant motion to compel further responses to the requests for production of documents or the special interrogatories.  Defendant also requests $5,625 in monetary sanctions against Plaintiff and Plaintiff’s counsel, Kerr & Wagstaffe LLP and The Law Office of Dax Craven.

Defendant has yet to receive amended responses or verifications.

Discussion

I.             Motion to Compel Further Responses to RPD and SIs

Defendant seeks further responses to RPD Nos. 1-29 and 32-62 from Set One, and SIs 1-75 and 80-116.  Defendant asserts that the discovery responses are unverified and contain boilerplate objections that were waived due to Plaintiff’s untimely responses.

In opposition, Plaintiff contends that: counsel for Defendant did not adequately meet and confer with Plaintiff; and, Defendant has produced documents, thereby mooting the motion.[1]

1. A.               Legal Standard

The party to whom written discovery has been propounded is required to serve a response within 30 days, or on any later date to which the parties have agreed.  (See Code Civ. Proc. §§ 2030.260, 2030.270 [interrogatories]; 2031.260, 2031.270 [requests for production].)  Where a verification to a response is required, service of an unverified response is tantamount to no response at all.  (See Appleton v. Super. Ct. (Cook) (1988) 206 Cal.App.3d 632, 635 -636 [unsworn responses are tantamount to no responses at all].)  Substantive responses to interrogatories (Code Civ. Proc. § 2030.250, subd. (a)), and requests for production (Code Civ. Proc. § 2031.250, subd. (a)) must be verified.

If the party to whom interrogatories or requests for production are directed fails to serve a timely response, that party waives any objections—including those based on privilege or on the protection for work product—to the discovery.  (Code Civ. Proc. §§ 2030.290, subd. (a) [interrogatories]; 2031.300, subd. (a) [requests for production].)  Additionally, the propounding party may move for an order compelling a response.  (Code Civ. Proc. §§ 2030.290, subd. (b) [interrogatories]; 2031.300, subd. (b) [requests for production].)  There is no limitation period (see Code Civ. Proc. §§ 2030.290, 2031.300) or meet and confer requirement (see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4^th 390, 411-412; Leach v. Super. Ct. (Markum) (1980) 111 Cal.App.3d 902, 905-906) for bringing a motion to compel an initial response.  The moving party need only show that the discovery was properly propounded and a timely response was not served.  (Id.)

1. B.               Analysis

Here, Plaintiff provided unverified responses; thus, the responses were “tantamount to no responses at all.”  (See Appleton, supra, 206 Cal.App.3d at pp.635-636.)  Thus, there is no meet and confer requirement for Defendant’s motion.  (See Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4^th at p.411.)  Nevertheless, Defendant presents evidence demonstrating that its counsel did adequately meet and confer with Plaintiff’s counsel.

Further, the responses were untimely in light of Plaintiff’s refusal of the conditional offer to extend the deadline for responses.  Plaintiff’s objections are waived.  (Code Civ. Proc. §§ 2030.290, subd. (a), 2031.300, subd. (a).)  Accordingly, Defendant’s motion to compel responses to the Special Interrogatories, Set One, Nos. 1-75 and 80-116 and Request for Production of Documents, Set One Nos. 1-29 and 32-62 is GRANTED.

II.            Defendant’s Request for Sanctions

Defendant makes a code compliant response for monetary sanctions against Plaintiff and his counsel in the amount of $5,625.00 pursuant to Code of Civil Procedure sections 2030.290, 2030.300, 2031.300 and 2031.310.

If a motion to compel a response to interrogatories or requests for production of documents is granted, then the Court shall impose a monetary sanction against the party, person or attorney who unsuccessfully opposed the motion unless it finds the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (See Code Civ. Proc. §§ 2030.290, subd. (c), 2030.300, subd. (d), 2031.300, subd. (c), 2031.310, subd. (h).)

Defendant has prevailed on the motion, Plaintiff and his counsel did not act with substantial justification, and there are no circumstances that make the imposition of monetary sanctions unjust.  Thus, Defendant is entitled to an award of monetary sanctions against Plaintiff and his counsel.

Defendant’s counsel, Scott McLeod states that he has spent at least 15 hours on the motion, separate statement and supporting declaration at a billing rate of $375 per hour.  Given the lack of complexity of the motion, despite the 145-page separate statement, the Court finds that seven hours is a reasonable amount of time at that billing rate for the instant motion.

Accordingly, Defendant’s request for monetary sanctions is GRANTED IN PART in the amount of $2,625.00.

Conclusion and Order

Defendant’s motion to compel further responses to Defendant’s Special Interrogatories, Set One, and Request for Production of Documents, Set One is GRANTED.  Plaintiff shall serve verified, code-compliant responses, without objections to Special Interrogatories, Set One, Nos. 1-75 and 80-116 and Request for Production of Documents, Set One Nos. 1-29 and 32-62, within 20 calendar days of the filing of this Order.

Defendant’s request for monetary sanctions against Plaintiff and his counsel of record is GRANTED IN PART in the amount of $2,625.00.  Accordingly, Plaintiff shall pay $2,625.00 to Defendants’ counsel within 20 calendar days of the date of the filing of this Order.

 

 

________________­­­____________ DATED:

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