Diaz v. Perales		CASE NO. 113CV571136
DATE: 29 August 2014	TIME: 9:00	LINE NUMBER: 12

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 28 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 29 August 2014, the motion of Plaintiff to compel Defendant to provide further responses to special interrogatories, set one, and request for production of documents, stepped one and for monetary sanctions was argued and submitted.[1]

Plaintiff’s memorandum of points and authorities is short on authority concerning who has the burden of proof on a motion to compel further responses.  The combined separate statement in support of the motions is unclear and hard to follow.

Defendant filed a formal opposition to the motion.  This opposition, entitled “Defendant’s Response To Notice Of Motion And Motion etc.” is not labeled as an opposition.  There is no supporting declaration and barely anything that could be called a “memorandum of points and authorities”.

I.  Statement of Facts.

This personal injury action arises from a domestic dispute between Diaz and her ex-husband, Perales. In her complaint, Diaz alleges the following: Between 1998 and 2011, the parties had a romantic relationship, resulting in marriage and several children. (Compl., p.1:24-25.) Throughout the course of their relationship, Perales would habitually throw physical objects at Diaz, slap her, and engage in nonconsensual sexual intercourse with her. (Compl., p. 2:1-10.)

In her complaint, Diaz asserts four causes of action against Perales for (1) domestic violence under Civil Code section 1708.6, (2) assault, (3), battery, and (4) intentional infliction of emotional distress.

On 1 August 2014,  this court heard arguments on the motion of Plaintiff to compel Defendant to provide further response to form interrogatories, set one, No. 17.1 (“FI”) and for monetary sanctions.  After argument,  this Court  ordered that Plaintiff’s motion to compel further responses to the FI is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to FI No. 17.1 as it pertains to RFA Nos. 1-7, 12-14, 16, 18 and 20.[2] The motion is GRANTED as to FI No. 17.1 as it pertains to RFA Nos. 9, 15, 17 and 19. Accordingly, within 20 calendar days of the filing of this Order, Perales shall serve verified code-compliant responses, without objection, to FI No. 17.1 as it pertains to RFA Nos. 9, 15, 17 and 19. the mutual requests for monetary sanctions were denied.

II.      Discovery Dispute.

On 21 January 2014, Plaintiff served by mail her request for production, set one, upon Defendant.  Defendant’s last set of responses were served on 10 June 2014.  There was sufficient “meet and confer”  but Plaintiff was not satisfied with Defendant’s responses 1-2, 4-5, 7, 10-12 and 18.

On 29 May 2014, Plaintiff served by mail upon Defendant her first set of special interrogatories.  There was sufficient “meet and confer”  without resolution.  Defendant  served his second supplemental set of responses on 10 June 2014.  (Moving papers, page 4, Line 4-5.)

This motion was filed on 30 July 2014, or 50 days after the last set of responses.

III.     Analysis.

         A.  Timeliness of This Motion.

As noted above, Defendant served the last set of responses on 10 June 2014.  This motion was filed on 30 July 2014, or 50 days after the last set of responses.  Since the last set of responses were served by mail (Code of Civil Procedure, § 1013), the motions are timely.

B.  Defendant’s Objections

               1.            Relevance.

This Court will construe the “beyond the scope of discovery” objection as a claim that the subject matter is not relevant.

Discovery is allowed for any matters that are relevant to the subject matter of the action, not privileged, and reasonably calculated to lead to the discovery of admissible evidence.  (See Code Civ. Proc., § 2017.010; Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 223.)  Information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.  (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)  These relevance standards are applied liberally with any doubt generally resolved in favor of discovery.  (See Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)

“[T]he claim that a party is engaged upon a fishing expedition is not, and under no circumstances can be, a valid objection to an otherwise proper attempt to utilize the provisions of the discovery statutes.  Should the so-called fishing expedition be subject to other objections, it can be controlled.” (Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal.2d 355, 386).

      2.            “Overly Broad, Burdensome and Oppressive.”

“In short, as Justice Murphy said for the court in Hickman v. Taylor, 329 U.S. 495, 507 [91 L.Ed. 451, 460, 67 S.Ct. 385], ‘discovery, like all matters of procedure, has ultimate and necessary boundaries.’”  Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County (1968) 263 Cal. App. 2d 12, 19.)

When asserting undue burden in response to a motion to compel, respondent has the burden of providing detailed evidence of how much work is required to answer the question.  West Pico Furn. Co. v. Superior Court (1961) 56 Cal. 2d 407, 418.

However, the scope of civil discovery is not without limits.  (Calcor Facility, Inc. v. Superior Court of Orange County (1997) 53 Cal. App. 4th 216, 223.  Courts have recognized that it would be a misuse of discovery to propound overbroad discovery in “an attempt to generate settlement leverage by creating burden, expense, embarrassment, distraction, etc.”  (Obregon v. Superior Court (1998) 67 Cal. App. 4th 424, 431: “It is a judge’s responsibility to control such abuse.”)

“Our observations of the day-to-day practice of law lead us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses. Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer.”  (Caldor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 221.)

         C.  Plaintiff’s Motion to Compel Defendant To Provide Further Responses to Special Interrogatories,                Set One.

Special Interrogatories 1-2, 4-5, 7, 10-12 and 18 are generally concerned with Defendant’s alleged participation in gang activity.  These questions involve the names of any alleged gangs, dates of participation, principal activities of such gangs, and whether these acts committed acts of violence to the knowledge of Defendant.  Defendant objected to each special interrogatory as follows:

“Respondent objects that the request is beyond the scope of discovery.  Respondent further objects that the interrogatory is overly broad, burdensome and oppressive.”

A party propounding interrogatories may move for an order compelling further responses if that party deems an objection is without merit or too general or a response is incomplete.  (Code of Civil Procedure, § 2030.300(a).)  The statute does not require any showing of good cause in support of a motion.  (See Code of Civil Procedure, § 2030.300; see also Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)  The burden is on the propounding party to obtain a judicial determination of the validity of any objection by moving to compel a further response.  However, the responding party has the burden to justify any objections or failure to fully answer.  (Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

The opposition papers do not specifically contain an argument on the lack of relevance.  For that matter, Plaintiff’s papers make no argument whatsoever that the subject matter of the interrogatories is relevant.

However, this Court has previously ruled that the denial by Defendant at any untoward act concerning Plaintiff occurred is noted by this Court.  This Court also questions the relevance of any gang connection with respect to Defendant.

The relevance objection is SUSTAINED.

Defendant sets forth no credible argument that the interrogatories are burdensome.  There is no indication of the amount of work or expense needed to respond to the interrogatories.  The burdensome objection is OVERRULED.

Plaintiff’s motion to compel defendant to provide further responses to special interrogatories, set one, is DENIED.

D.  Plaintiff’s Motion To Compel Defendant To Provide Further Responses To Request For                                            Production Of Documents, Set One

Code of Civil Procedure, § 2031.210(a) gives the party to whom an inspection demand has been directed the choice to respond separately to each item or category of item by any of the following three ways:

(1) A statement that the party will comply with the particular demand for inspection and any related activities

“A statement that the party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”  Code of Civil Procedure, § 2031.220.

(2) A representation that the party lacks the ability to comply with the demand for inspection of a particular item or category of item.

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  Code of Civil Procedure § 2031.230.

(3) An objection to the particular demand.

“(a) If only part of an item or category of item in an inspection demand is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.  (b) If the responding party objects to the demand for inspection of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, or land falling within any category of item in the demand to which an objection is being made.  (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.  (c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.  (2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.  Code of Civil Procedure, § 20310.240.

A party propounding a request for production of documents may move for an order compelling further responses if it deems that an objection in the response is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) A motion for an order compelling further responses to the request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) In order to establish good cause, the burden is on the moving party to show relevance to the subject matter and specific facts justifying the discovery. (See Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Once a showing of good cause is made, the burden shifts to the opposing party to justify his or her objections. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

In this matter, Plaintiff has made no effort to show specific facts showing good cause justifying the discovery sought by the inspection demand.  Defendant has previously stated that the events in question did not occur.  These requests, pertaining to Defendant’s alleged gang membership, have questionable relevance to this lawsuit.  Plaintiff has made no preliminary showing that Defendant is or ever was in a gang.

However, according to the separate statement in support of the motion, Plaintiff has not received certain documents identified by Defendant in the responses.

Therefore, Plaintiff’s motion to compel Defendant to provide further responses to request for production of documents, set one, is GRANTED.  Defendant is to provide code compliant responses within 20 days of the date of the filing of this Order.

            C.         Sanctions.

Plaintiff and Defendant each make a request for monetary sanctions.

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.

1.         Plaintiff’s Request. 

The request is not code-compliant.

In support of the request for monetary sanctions, Plaintiff cites Code of Civil Procedure, §§ 2023.010 and 2023.030(a).

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.

“Section 2023.030 authorizes a court to impose the specified types of sanctions, “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” (Ibid.) This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.”  (New Albertsons, Inc. v. Superior Court (Shanahan) (2008) 168 Cal.App.4th 1403, 1422.)  As such, section 2023.030 does not provide an independent basis for an award of sanctions and thus is not self-executing.  In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

Plaintiff’s request for monetary sanctions is DENIED.

2.         Defendant’s Request.

Defendant requests fees pursuant to Code of Civil Procedure, §§ 2030(a) and (c).  Section 2030(a) refers to the right of a party to serve interrogatories.  There is no section 2030(c).

Defendant’s request for monetary sanctions is DENIED.

IV.     Order.

Plaintiff’s motion to compel defendant to provide further responses to special interrogatories, set one, is DENIED.

Plaintiff’s motion to compel Defendant to provide further responses to request for production of documents, set one, is GRANTED.  Defendant is to provide code compliant responses within 20 days of the date of the filing of this Order.

Plaintiff’s request for monetary sanctions is DENIED.

Defendant’s request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

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

 

[1] Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”

[2] RFA Nos. 1-7, 12-14, 16, 18 and 20 asked Perales to admit that he has placed his hands around Diaz’s neck (RFA No. 1), attempted to kick open the door (RFA No. 2), thrown an object at Diaz (RFA No. 3), attempted to commit suicide (RFA No. 4), run onto U.S. Highway 101 (RPD No. 5), attempted to throw Diaz to the ground (RFA No. 6), sold illegal drugs (RFA No. 7), received a gunshot wound (RFA No. 12), battered at least one person (RFA No. 13), assaulted at least one person (RFA No. 14), possessed a firearm (RFA No. 16), threatened to kill Diaz (RFA No. 18), and violated Penal Code section 261.5  (RFA No. 20).  Perales responded by denying the RFA in their entirety. He responded to FI No. 17.1 subparts (b) and (d) with regard to RFA Nos. 1-7, 12-14, 16, 18 and 20 by stating “Not applicable. Allegations did not occur.”