On 28 February 2014, the motion of Plaintiff Aaron Himmler (“Plaintiff”) to compel responses to form interrogatories, special interrogatories, and request for production of documents and for monetary sanctions was argued and submitted. Defendants Lidia Giles and Senzala, Inc. (“Defendants”) did not file formal opposition to the motion.
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).
I. Background
This action arises from an alleged breach of contract involving both parties. Defendant Lidia Giles (“Giles”) and Plaintiff had an agreement whereby Plaintiff could open and operate a bar business at 250 E. Java Drive, Sunnyvale, California, a restaurant operated by Giles. Plaintiff alleges that during the entire time he worked as a bartender, Giles took and kept all the revenue. Plaintiff also alleges that Giles entered into multi-year contracts with private promoters to hold special events at the restaurant and that he had no knowledge of those contracts until after the fact. Plaintiff filed his complaint on 14 July 2011.
Giles filed a cross complaint on 7 October 2011, alleging breach of contract and seeking recovery of actual damages for replacement of equipment, unpaid rent, lost special events profits, and decreased restaurant business. Giles alleges that Plaintiff abruptly closed the bar business in March 2011 and removed all equipment and supplies.
II. Discovery Dispute
On 10 January 2013, Plaintiff served form interrogatories, special interrogatories, and request for production of documents on Giles. On 23 January 2013, both parties participated in a mediation session before Brad Bening and Defendants agreed to produce certain information and documents within two weeks of the mediation session. Plaintiff also agreed that so long as Defendants produced the information and documents as agreed, Defendants did not need to produce formal discovery responses.
Defendants did not produce the information and documents within two weeks of the mediation session as agreed. On 7 February 2013, Plaintiff sent a letter to Defendants inquiring as to when the production would occur. Defendants did not respond to the letter. On 14 February 2013, Plaintiff sent an email inquiring as to when the production would occur. Defendants did not respond to the email.
On 15 April 2013, Plaintiff sent a letter to Defendants stating that he expected Defendants to provide formal responses to the discovery requests. In response to the letter, Defendants’ counsel stated that his clients’ accountant was in possession of the documents needed to prepare formal responses to the discovery requests. Defendants’ counsel also stated that his clients’ accountant had been too busy during tax season to provide him with the documents.
On 29 April 2013, Defendants sent an email in which they discussed the status of the discovery responses. Defendants informed Plaintiff that the accountant had gone on vacation on 15 April 2013 and had still not retrieved the relevant documents from storage. Defendants also stated that they intended to serve responses to the interrogatories by the end of the week. Defendants did not serve responses by the end of the week.
On 7 June 2013, Defendants gave Plaintiff the name of the accountant who possessed all the documents related to the discovery request. On 13 June 2013, Plaintiff served a subpoena on the accountant. On 24 October 2013, the accountant contacted Plaintiff and stated that she had retrieved the documents from storage. The accountant also stated that she did not possess any documents from 2011, as Defendants had never delivered documents from that year. The accountant did produce documents from 2009 and 2010.
On 24 October 2013, Plaintiff contacted Defendants in regards to the documents from 2011. On 12 December 2013, Plaintiff sent a letter to Defendants stating that if he did not have responses to the discovery requests on or before 31 December 2013, Plaintiff would move to compel those responses.
Plaintiff filed the present motion on 9 January 2014. Defendants did not file formal opposition to the motion. To date, Defendants have not responded to the outstanding discovery requests.
III. Discussion
A. Motion to Compel Responses
A demand to produce documents may be propounded upon an adverse party in an attempt to seek relevant information. (Code of Civil Procedure § 2031.010.) Absent an extension granted by counsel, a party must respond to each request for the production of documents within 30 days. (Code of Civil Procedure § 2031.260.) A party who fails to timely respond to requests for production of documents waives any objections unless the Court determines that the party substantially complied or the failure to serve responses was the result of mistake, inadvertence or excusable neglect. (Code of Civil Procedure § 2031.300(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 of Civil Procedure § 2031.220; Code of Civil Procedure § 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).)
Interrogatories may be propounded upon an adverse party in an attempt to seek relevant information. (Code of Civil Procedure § 2017.010.) Absent an extension granted by counsel, a party must respond to interrogatories within 30 days. (Code of Civil Procedure § 2030.260.) An objection can constitute a response. (See Korea Data Sys. Co. v. Sup. Ct. ( 2007) 51 Cal.App.4th 1513, 1516.) A party who fails to timely respond to form interrogatories waives any objections unless the Court determines that the party substantially complied or the failure to serve responses was the result of mistake, inadvertence or excusable neglect. (Code of Civil Procedure § 2030.290(a).) A party may seek a motion to compel when the adverse party fails to respond to the interrogatories in a timely fashion. (Code of Civil Procedure § 2030.290(b).)
Here, Plaintiff properly served Defendants with the form interrogatories, special interrogatories, and requests for production of documents on 10 January 2013. To date, Defendants have not responded to Plaintiff’s demand to produce documents and form and special interrogatories. Defendants have also not provided a justification for the lack of response.
Accordingly, Plaintiff’s motion to compel responses to form interrogatories, special interrogatories, and request for production of documents is GRANTED. Defendants are to serve specific, code-compliant, objection-free and verified responses upon Plaintiff within 20 days of the date of this Order.
B. Motion for Monetary Sanctions
Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of the 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.”
Plaintiff makes a motion for monetary sanctions. The notice in the moving papers cite Code of Civil Procedure, §§ “2023.030, 2030.290, and 2031.300” without reference to any subsection. Section 2030.290 (c) requires this Court to “impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories.” Defendants never opposed this motion. The appropriate citation of authority would have been Rule of Court 3.1348(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. 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.
Accordingly, Plaintiff’s request for monetary sanctions is DENIED.
IV. Conclusion
Plaintiff’s motion to compel responses to form interrogatories, special interrogatories, and request for production of documents is GRANTED. Defendants are to serve specific, code-compliant, objection-free and verified responses upon Plaintiff within 20 days of the date of this Order.
Plaintiff’s request for monetary sanctions is DENIED.