Case Number: BC642939 Hearing Date: May 02, 2018 Dept: 4

MOVING PARTY: Plaintiff Devon Alexius Zellner

RESPONDING PARTY: None

(1) Motion to Compel Defendant’s Response to Set One of Form Interrogatories

(2) Motion to Compel Defendant’s Response to Set One of Request for Production of Documents

The court considered the moving papers.

BACKGROUND

On December 6, 2016, plaintiff Devon Alexius Zellner filed a complaint against defendant Darryl Pierre Thomas for motor vehicle negligence based on an incident that occurred on April 1, 2016.

Trial is set for June 6, 2018.

LEGAL STANDARD

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. CCP §2030.290(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.

Request for Production of Documents

Where there has been no timely response to a CCP §2031.010 demand, the demanding party must seek an order compelling a response. CCP §2031.300. Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of “good cause” is required. Weil & Brown, Civil Procedure Before Trial, 8:1487.

DISCUSSION

Plaintiff requests that the court compel defendant to serve verified responses without objections to plaintiff’s first sets of form interrogatories and requests for production of documents, served on December 4, 2017. Responses were due by January 9, 2018. On January 12, 2018, plaintiff’s counsel sent a letter to defense counsel requesting responses within ten days. On January 26, 2018, plaintiff’s counsel sent another letter, stating that he had also left three voicemail messages and would proceed to file motions to compel and seek sanctions. On

January 26, 2018, defense counsel sent a letter stating that responses would be served in the next 30 days. On March 5, 2018, plaintiff’s counsel sent another letter stating that he would proceed to file the motions to compel. To date, plaintiff’s counsel has not received responses.

In opposition, defendant contends that defense counsel has been unable to locate defendant and that all efforts to locate him through a private investigator have been unsuccessful.

Because plaintiff properly served discovery requests and defendant failed to serve verified responses, the motions are GRANTED.

Under CCP § 2023.030(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.” Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents 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.” CCP §§ 2030.290(c), 2031.300(c).

Cal. Rules of Court, Rule 3.1348(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.”

Plaintiff requests sanctions against defendant and his attorney of record, Kurt Boyd, in the amount of $935 for each motion. The court finds that $620 ($250/hr. x 2 hrs. hrs. plus $120 in filing fees) is a reasonable amount of attorney’s fees and costs to be awarded against defendant only in total for both motions.

The court ORDERS:

Defendant Darryl Pierre Thomas is ordered to serve on plaintiff Devon Alexius Zellner verified responses without objections to plaintiff’s Form Interrogatories, Set One, within 20 days.

Defendant Thomas is ordered (1) to serve on plaintiff a verified response without objections to plaintiff’s Requests for Production of Documents, Set One, and (2) to produce all documents and things in defendant’s possession, custody, or control, which are responsive to plaintiff’s request, within 20 days.

The court orders defendant to pay to plaintiff a monetary sanction in the amount of $620 within 30 days in total for both motions.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: May 2, 2018

____________________________

Dennis J. Landin

Judge of the Superior Court