Erick Escobar, et al. v. Harmen-Wendy, Inc., et al. CASE NO. 113CV238887
DATE: 27 June 2014 TIME: 9:00 LINE NUMBER: 27
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 26 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 27 June 2014, the motion of Defendant Wendy 246, Inc. (“Wendy”) to compel further responses to interrogatories and for monetary sanctions against Plaintiffs Erick Escobar, Carlos Martinez and William Quijada was argued and submitted. The additional motion of Wendy to compel responses to interrogatories and requests for the production of documents and for monetary sanctions against Plaintiff Oscar Guillen was heard and submitted. Plaintiffs’ counsel has not filed opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

Background

This matter arises out of an employment wage-hour dispute. Plaintiffs allege, inter alia, that they worked excessive hours without break periods and were not properly compensated. Defendant denies all claims in the complaint.

On 16 January 2014, Defendant sent a set of interrogatories and requests for the production of documents to Plaintiffs Escobar, Martinez, Quijada and Guillen. After Defendants granted two extensions to reply, Plaintiffs Escobar, Martinez and Quijada served unverified responses upon Defendants. Plaintiff Guillen failed to serve any responses.

On 21 May 2014, Defendant filed the instant motion.

Motion to Compel Responses to Interrogatories from Plaintiff Guillen

A demand to respond to interrogatories may be propounded upon an adverse party in an attempt to seek relevant information. Code Civ. Proc. § 2030.030(a)(2). Absent an extension granted by counsel, a party must respond to each request for the production of documents within 30 days. Code Civ. Proc. § 2030.260(a). A code-compliant response states that the responding party will comply fully, comply partially while stating a valid reason for not fully complying, or that party will not comply while stating a valid reason for not fully complying. Code Civ. Proc. § 2030.220; Code Civ. Proc. § 2030.230. A party may seek a motion to compel responses when the adverse party fails to respond to the request in a timely fashion. Code Civ. Proc. § 2030.290(b). A party that fails to successfully defend a motion to compel production waives all objections, including privilege when producing those documents. Code Civ. Proc. § 2030.290(a).

Defendant allegedly served interrogatories upon Plaintiff Guillen on 16 January 2014. Defendant granted two extensions to respond allowing an eventual response date of 25 April 2014. Plaintiff Guillen failed to respond to Defendant’s interrogatories by 25 April 2014 and it appears has still not responded. An order to compel responses is appropriate.

Defendant’s motion to compel responses to form interrogatories from Plaintiff Guillen is GRANTED. Plaintiff Guillen will serve code-compliant responses upon Defendant within 20 days of the date of this order. Objections are waived.

Motion to Compel Further Responses to Interrogatories from Plaintiffs Escobar, Martinez, and Quijada

A party may make a motion to compel further responses to interrogatories if it believes the other party provided evasive or incomplete answers to particular interrogatories. Code Civ. Proc. § 2030.300(a); Rules of Court, rules 3.1110(a), 3.1112(d)(3). This motion must include a memorandum of points and authorities. Cal. Rules of Court, rules 3.1112(a)(3), 3.1113(a). The motion must also be accompanied by a declaration stating certain facts that demonstrate good cause for production. Code Civ. Proc. §2031.310(b)(1). Additionally, a Separate Statement including the text of the discovery sought to be compelled, the responses given, a statement of the legal reasons for further responses and an explanation of other definitions is required. Cal. Rule of Court 3.1345(a),(c). Responses to interrogatories that are unverified constitute no response at all. See e.g., Garber v. Eskanarian (2d Dist. 2007) 150 Cal.App.4th 813, 817 n. 4; Appleton v. Superior Ct. (3d Dist. 1988) 206 Cal.App.3d 632, 636.

Defendant provided a separate statement outlining several perceived deficiencies in answers it allegedly received. However, the separate statement specifically referenced that Plaintiffs did not verify any interrogatory answers. If that is the case, then the motion before the Court should not be for further responses, but instead for responses. In some respects, the motion might be denied for that reason.

While not explicitly written in the Rules of Court, when dealing with matters compelling further responses, and in some instances even initial responses, it is good practice to include copies of the actual interrogatories and document requests and the responses, if any, in the motion. This helps avoid the issue with which the Court presently struggles.

Based on the facts before the Court, Plaintiffs Escobar, Martinez and Quijada served unverified responses upon Defendant. Since the responses were unverified, it is the same as if they served no responses at all. The proper motion before this Court should have been to compel responses under Code of Civil Procedure Section 2030.290(a). However, the Court also notes that Plaintiff’s counsel, in his opposition, stated that he would respond to all discovery by 23 June 2014. The Court assumes that Plaintiff’s counsel means to serve verified code-compliant responses. If Plaintiff’s counsel failed to serve proper responses by that date, then the Court will treat the motion before it as a motion to compel responses. Plaintiffs Escobar, Martinez and Quijada failed to provide responses in a timely manner to the form interrogatories before them.

Defendant’s motion to compel responses from Plaintiffs Escobar, Martinez and Quijada is GRANTED. Named Plaintiffs will provide verified code-compliant responses within 20 days of the date of this order. Objections are waived.

Motion to Compel Responses to Document Requests from Plaintiff Guillen

A demand to produce documents may be propounded upon an adverse party in an attempt to seek relevant information. Code Civ. Proc. § 2031.010. Absent an extension granted by counsel, a party must respond to each request for the production of documents within 30 days. Code Civ. Proc. § 2031.260. A code-compliant response states that the responding party will comply fully, comply partially while stating a valid reason for not fully complying, or that party will not comply while stating a valid reason for not fully complying. Code Civ. Proc. § 2031.220; Code Civ. Proc. § 2031.230. A party may seek a motion to compel production when the adverse party fails to respond to the request for production in a timely fashion. Code Civ. Proc. § 2031.300(b). A party that fails to successfully defend a motion to compel production of documents waives all objections, including privilege when producing those documents. Code Civ. Proc. § 2031.300(a).

As with the interrogatories propounded on Plaintiff Guillen, Defendant allegedly propounded requests for the production of documents on 16 January 2014. After granting two extensions to respond, Plaintiff Guillen still failed to provide any responses to the requests for production. An order to compel production of documents is appropriate.

Defendant’s motion to compel responses to the requests for the production of documents from Plaintiff Guillen is GRANTED. Plaintiff Guillen will serve verified code-compliant responses without objection on Defendant within 20 days of the date of this order.

Request for Monetary Sanctions

Defendant makes a request for monetary sanctions in both of its motions. These requests are not code compliant.

In support of the request for sanctions, Defendant cites Code of Civil Procedure sections 2023.010 and 2023.030. 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.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. 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.

Defendant failed to cite any ‘chapter governing any particular discovery method’ that grants the Court authority to issue sanctions. Additionally, the Court notes that the motions as filed each have information gaps that while not in themselves fatal to the motion, raises questions about the alleged amount of work Defendant’s counsel put in. As a result, these requests are not code compliant.

Defendant’s requests for monetary sanctions are DENIED.

Conclusion and Order

Defendant’s motion to compel responses to Form Interrogatories, Set One from Plaintiff Guillen is GRANTED. Defendant’s motion to compel responses to Form Interrogatories, Set One from Plaintiffs Escobar, Martinez, and Quijada is GRANTED. Defendant’s motion to compel responses to Requests for Production of Documents, Set One from Plaintiff Guillen is GRANTED. Defendant’s requests for monetary sanctions against Plaintiff and Plaintiff’s counsel is DENIED.