| Forbord v. Hasselberg, Peña | CASE NO. 113CV249824 | |
| DATE: 19 December 2014 | TIME: 9:00 | LINE NUMBER: 13 |
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 18 December 2014. Please specify the issue to be contested when calling the Court and counsel.
On 19 December 2014, the motion of Defendants Hasselberg and Peña (“Defendants”) to compel plaintiffs to respond to Defendant’s form interrogatories, set one, special interrogatories, set one, and requests for production of documents, set one, and for monetary sanctions was argued and submitted.
Defendant is reminded that there is no procedure in the Code of Civil Procedure to “compel discovery responses.” “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.” Rule of Court 3.1345(d).
Plaintiff did not file formal opposition to the motion.[1]
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]
- Statement of Facts.
This complaint was filed on 22 July 2013. Plaintiff alleges that she was injured as a result of a motor vehicle accident on 22 July 2011 while driving on Budd Avenue near the intersection of Winchester Blvd. in the city of Campbell, California. Defendants are alleged to be the owners and drivers of the vehicle which struck Plaintiff’s vehicle.
- Discovery Dispute.
On 2 July 2014, Defendants served the foregoing discovery upon Plaintiff.
On the 2 September 2014 and on 8 September 2014, defense counsel sent letters to counsel for Plaintiff reminding him that the discovery responses were overdue.[3]
No responses have been forthcoming, and therefore on 14 November 2014 Defendants filed this motion.
III. Analysis.
- Motion to Compel Responses to Form Interrogatories, Special Interrogatories and Request for Production of Documents
To prevail on its motion, a party needs to show is that the discovery requests were properly served, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Superior Court (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 or demand for inspection may move for an order compelling responses. Code Civ. Proc. § 2030.290(b) (interrogatories) § 2031.300(b) (response to demand).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) § 2031.300(a) (response to demand for production).
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 or demand to produce. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.
Defendants have provided proof of service for the first set of form interrogatories, special interrogatories, and inspection demands. The deadline for the Plaintiff to respond has lapsed and the Plaintiff has not timely responded to any of Defendants’ discovery requests.
Accordingly, Defendant’s motions to compel Plaintiff to respond to Defendant’s form interrogatories, set one, special interrogatories, set one, and requests for production of documents, set one is GRANTED. Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.
- Sanctions.
Defendants make a request for monetary sanctions. The request is code-compliant. Code of Civil Procedure, § 2023.040.
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.”
A court’s authority to award monetary sanctions arises from statutory authority, and not from the court’s own inherent authority. (Trans-Action Commercial Investors, Ltd. v. Firmaterr (Jelinek) (1997) 60 Cal.App.4th 352, 366.) This authority is restricted because the Legislature has seen fit to establish such limitations. (Jelinek, 60 Cal.App.4th at 371. See also Bauguess v. Paine (1978) 22 Cal.3d 626, 638-39.[4])
Defense counsel cited the code sections pertaining to the imposition of monetary sanctions against the party who “unsuccessfully makes or opposes” a motion to compel responses to interrogatories. There was no citation of authority regarding sanctions connected with a motion to compel responses to production.
However, those are academic points since Plaintiff did not “unsuccessfully make or oppose a motion” to compel discovery responses.
Defense counsel correctly cited in the memorandum of points and authorities rule of Court 3.1348(a) for the imposition of sanctions where no opposition papers were filed.
The notice of the motion cited rule 8.54(c)[5] which applies to the Courts of Appeal and the Supreme Court. A failure to oppose a motion may be deemed a consent to the granting of the motion. As noted in footnote 1 above, there are no defaults in civil discovery matters.
Plaintiff will be awarded $450 at $150 an hour for the three hours this Court believes this motion could have taken. The Court will also award $90 and filing and court reporter’s fees for a total of $540. Plaintiff and her counsel or to pay this sum within 20 days of the date of the filing of this Order
- Order.
Defendant’s motions to compel Plaintiff to respond to Defendant’s form interrogatories, set one, special interrogatories, set one, and requests for production of documents, set one is GRANTED. Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.
Plaintiff and her counsel or to pay the sum of $540 within 20 days of the date of the filing of this Order.
| ____________________________
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] While meeting and conferring is not required for a motion to compel initial responses, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order. The Court has concerns when there does not appear to be any effort to resolve discovery issues without Court intervention. See McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.
[4] This case is still good law despite being superseded by Olmstead v. Arthur J. Gallagher & Co. (2002) 104 Cal. App. 4th 858, because Olmstead was ultimately reversed two years later. The court responsible for the reversal had held that authorizing monetary sanctions for bad-faith acts was not applicable to claims initiated on or before December 31, 1994.
[5] “A failure to oppose a motion may be deemed a consent to the granting of the motion.”
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