Case Name: Georgette Purnell v. Thomas Jones, et al.
Case No.: 18-CV-325377

Currently before the Court is the motion by plaintiff Georgette Purnell (“Plaintiff”) to compel defendants Thomas Jones and Rebecca Jones (collectively, “Defendants”) to provide further responses to requests for production of documents, set one (“RPD”).

Factual and Procedural Background

This action arises out of an altercation that occurred at defendant Patio Bar, a family owned bar located at 984 East El Camino Real, Sunnyvale, California. (Complaint, pp. 1:15-18 & 2:8-11.) On December 30, 2016, Plaintiff stopped by Patio Bar where she was allegedly “harassed, hassled, stressed, beleaguered and threatened by the Bar Employees and was kicked and harmed physically.” (Id. at p. 2:8-17.) Plaintiff alleges that she was denied service and her civil rights were violated by Patio Bar’s manager and employees. (Id. at p. 2:14-28.)

Based on the foregoing allegations, Plaintiff filed a complaint against Patio Bar, alleging causes of action for: (1) violation of Civil Rights Act of 1964; (2) violation of Business and Professions Code section 17200, et seq.; (3) violation of Business and Professions Code section 17500, et seq.; and (4) violation of Business and Professions Code sections 17200 and 17500.

Subsequently, Defendants filed answers to the complaint, alleging that they had been erroneously sued as Patio Bar.

Discovery Dispute

Plaintiff asserts that she served Defendants with the RPD sometime in December 2018. But Plaintiff does not present any evidence supporting her assertion.

The RPD themselves are dated January 29, 2019. (Purnell Dec., Ex. A.) The proof of service accompanying the RPD states that Zigfred Bucks (“Bucks”) served the RPD on Defendants on January 29, 2019, by placing a copy of the RPD in a postage paid envelope addressed to Defendants’ counsel.

Thereafter, Defendants received the RPD via U.S. mail. The envelope containing the RPD purportedly indicated that the RPD were postmarked on February 6, 2019, and received by Defendants on February 8, 2019.

On March 12, 2019, Defendants served Plaintiff with a response to the RPD via U.S. mail. Defendants’ response to the RPD apparently consisted of an objection to the requests on the ground that the requests were improperly served on Defendants.

Three days later, Plaintiff sent an email to Defendants’ counsel, advising Defendants’ counsel that she had not received any response to the RPD. (Purnell Dec., Ex. B.) It does not appear that Defendants’ counsel responded to Plaintiff’s email.

On April 4, 2019, Plaintiff filed the motion to compel Defendants to provide further responses to the RPD under Code of Civil Procedure section 2031.310. Defendants filed an opposition to the motion on May 28, 2019, in which they request an award of monetary sanctions.

Discussion

I. Procedural Issues

As Defendants’ persuasively argue, Plaintiff’s motion suffers from several fatal procedural defects.

Preliminarily, Plaintiff failed to meet and confer regarding Defendants’ response to the RPD prior to filing the instant motion. A motion to compel further responses to requests for production of documents shall be accompanied by a meet a and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) The rule requiring parties to meet and confer is designed “ ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order’ ” which, “in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends on the circumstances of the case. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431 (Obregon).) Generally, a “ ‘reasonable and good faith attempt at informal resolution … requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.’ [Citation.]” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) “A determination of whether an attempt at informal resolution is adequate … involves the exercise of discretion.” (Obregon, supra, 67 Cal.App.4th at p. 431.)

Here, Defendants served Plaintiff with their response to the RPD on March 12, 2019. Plaintiff never sent any communication to Defendants regarding the sufficiency of their response to the RPD. In fact, the only communication between Plaintiff and Defendants regarding the RPD is the March 15, 2019 email sent by Plaintiff to Defendants’ counsel. In that email, Plaintiff merely advised Defendants’ counsel that she had not received any response to the RPD. (Purnell Dec., Ex. B.) Because Plaintiff never attempted to discuss any of the perceived deficiencies in Defendants’ response to the RPD with Defendants prior to filing the instant motion, Plaintiff failed to meet and confer at all regarding Defendants’ response to the RPD.

Furthermore, Plaintiff failed to submit a separate statement in support of her motion to compel further responses to the RPD. A motion to compel further responses to requests for production of documents must be supported by a separate statement providing all the information necessary to understand each request and response at issue. (See Cal. Rules Ct., rule 3.1345(a)(3) & (c).) The separate statement must include—for each discovery request to which a further response is requested—the following: (1) the text of the request; (2) the text of each response, answer, or objection, and any further responses or answers; (3) a statement of the factual and legal reasons for compelling further responses as to each matter in dispute; and (4) if necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it. (Cal. Rules Ct., rule 3.1345(c)(1)-(4).) A court has discretion to deny discovery when a separate statement fails to comply with the California Rules of Court. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893; see also St. Mary v. Super. Ct. (2014) 223 Cal.App.4th 762, 778.)

Here, not only did Plaintiff fail to provide the Court with a separate statement, but she did not provide the Court with a copy of Defendants’ response to the RPD. Thus, there is no way for the Court to evaluate whether Defendants’ response to the RPD was code-compliant.

The absence of a separate statement is especially problematical because Plaintiff failed to file any memorandum of points and authorities discussing the factual and legal bases for her motion. Pursuant to California Rules of Court, rule 3.1113(a), “[a] party filing a motion…must serve and file a supporting memorandum.” The rule further provides that “[t]he court may construe the absence of a memorandum as an admission that the motion … is not meritorious and cause for its denial … .” (Cal. Rules Ct., rule 3.1113(a).)

Notably, Plaintiff’s status as a self-represented litigant does not excuse her failure to comply with the Code of Civil Procedure and California Rules of Court. When a litigant is self-represented, he or she is entitled to the same, but no greater, consideration than other litigants and attorneys. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444; Kobaysahi v. Super. Ct. (2009) 175 Cal.App.4th 536, 543; Rappleyea v. Campell (1994) 8 Cal.4th 975, 984-985; Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009; Burnete v. La Casa Dana Apts. (2007) 148 Cal.App.4th 1262, 1264; see also Goodson v. Bogerts, Inc. (1967) 252 Cal.App.2d 32, 40; Berset v. Berset (1954) 126 Cal.App.2d 684, 687.) As is the case with attorneys, self-represented litigants must follow correct rules of procedure. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”].)

In light of the foregoing procedural defects, Plaintiff’s motion is summarily DENIED.

II. Defendants’ Request for Monetary Sanctions

The Court now turns to Defendants’ request for an award of monetary sanctions. Defendants ask for monetary sanctions against Plaintiff in the amount of $925. Defendants argue that they are entitled to an award of monetary sanctions under Code of Civil Procedure section 2031.310 because Plaintiff’s motion was brought without substantial justification. Defendants further argue that they are entitled to an award of monetary sanctions because Plaintiff failed to adequately meet and confer.

To the extent Defendants seek monetary sanctions in connection with Plaintiff’s failure to meet and confer, Defendants’ request is deficient because Defendants did not cite any statute authorizing an award of monetary sanctions as a result of a failure to meet and confer.

Defendants also seek monetary sanctions under Code of Civil Procedure section 2031.310, subdivision (h). That statute provides that “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.” (Code Civ. Proc., § 2031.310, subd. (h).) Here, the parties did not provide the Court with a copy of Defendants’ response to the RPD and, consequently, the Court was unable to determine whether Defendants’ response was code-compliant. Without knowing whether Defendants’ response to the RPD was legally sufficient, it cannot be said that Plaintiff lacked substantial justification to bring the motion, notwithstanding the aforementioned procedural defects. Thus, Defendants are not entitled to an award of monetary sanctions under Code of Civil Procedure section 2031.310, subdivision (h).

Accordingly, Defendants’ request for monetary sanctions is DENIED.