Case Number: 19STCV15712 Hearing Date: November 19, 2019 Dept: 4A

Motion to Compel Responses to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) (x6)

Having considered the moving and opposing papers, the Court rules as follows. No reply papers were filed.

BACKGROUND

On May 6, 2019, Plaintiffs Gabriel Arellano and Zachary Arellano (“Plaintiffs”) filed a complaint against Defendants Nancy Wen and Edward Chan alleging motor vehicle negligence for an automobile collision that occurred on June 28, 2018.

On October 16, 2019, Defendant Nancy Wen filed motions to compel responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One) pursuant to California Code of Civil Procedure sections 2030.290, subdivision (b) and 2031.300, subdivision (b).

Trial is set for November 2, 2020.

PARTY’S REQUESTS

Defendant Nancy Wen (“Moving Defendant”) requests that the Court compel Plaintiffs to provide verified responses without objections to Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) within 15 days of the hearing on these motions due to Plaintiffs’ failure to provide timely responses.

Moving Defendant also asks the Court to impose: (1) $2,280 in monetary sanctions against Plaintiff Gabriel Arellano and/or his counsel of record and (2) $2,280 in monetary sanctions against Plaintiff Zachary Arellano and his counsel of record for their abuse of the discovery process.

Plaintiffs’ counsel requests sanctions to be imposed only against Plaintiffs arguing that their lack of responses required the filing of these motions.

LEGAL STANDARD

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. (Code Civ. Proc., § 2030.290, subd. (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.)

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc., § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc., § 2031.300, subd. (a).) 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.

Under California Code of Civil Procedure section 2023.030, subdivision (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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc., § 2023.010.)

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.” (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c).)

California Rules of Court, rule 3.1348, subdivision (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.”

DISCUSSION

On June 13, 2019, Moving Defendant served Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) on Plaintiffs by U.S. mail. (All Six Declarations of David M. Hillier, Esq. (“Hillier Decl.”), ¶¶ 2, Exh. A.) Moving Defendant granted two extensions, providing an ultimate deadline of September 13, 2019 for Plaintiffs’ outstanding responses to be served on Moving Defendant. (Hillier Decl., ¶¶ 5-6, Exh. D-E.) Moving Defendant had not received Plaintiff’s outstanding responses as of the time when David M. Hillier signed his declarations on October 15, 2019. (Hillier Decl., ¶ 7.) Plaintiffs’ counsel declares he has done everything to cooperate with defense, but his clients have not cooperated with him in providing responses and verifications. (Husen Decl., ¶¶ 2-4.)

The discovery was properly served and Plaintiffs failed to provide the requisite responses in a timely fashion. Thus, a order compelling responses is appropriate. There are no facts showing Plaintiffs acted with a substantial justification or that other circumstances exist such that an imposition of sanctions would be unjust. However, Mr. Husen’s declaration makes clear that Plaintiffs’ counsel reached out to Plaintiffs a minimum of five times between June 17, 2019 and October 17, 2019 to no avail. (Husen Decl., ¶ 3.) As such, circumstances show that it would be unjust to impose sanctions against Plaintiffs’ counsel.

Moving Defendant’s requests for $2,280 in monetary sanctions against Plaintiff Gabriel Arellano and $2,280 in monetary sanctions against Zachary Arellano each consists of 6 hours in drafting the moving papers and 6 hours in appearing at the hearings at a rate of $175 an hour, plus three $60 filing fees. (Hillier Decl., ¶¶ 8.) The Court finds these amounts to be unreasonable. The motions are nearly duplicative, straight-forward, and consist of large block quotes of law. Additionally, the hearings are to take place in the same courthouse, in the same department, on the same date, consecutively. Rather, the Court finds $705 ($175/hr. x 3 hrs. plus three $60 filing fees) to be a reasonable amount of sanctions to impose against each Plaintiff.

The motions are therefore GRANTED.

The Court orders Plaintiffs to serve verified responses without objections to Moving Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production (All Set One) within 20 days of this order.

The Court also orders Plaintiff Gabriel Arellano to pay Moving Defendant $705 within 30 days of this order.

The Court further orders Plaintiff Zachary Arellano to pay Moving Defendant $705 within 30 days of this order.

Moving Defendant is ordered to give notice of this ruling.