Ho v. Tannu CASE NO. 112CV223510
DATE: 23 May 2014 TIME: 9:00 LINE NUMBER: 6
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 22 May 2014. Please specify the issue to be contested when calling the Court and counsel.

On 23 May 2014, the motion of Defendant/Cross Complainant Nhu-Hanh Tonnu to compel discovery responses was argued and submitted. No party filed formal opposition to the motion.

The motion was originally filed on 3 April 2014 for a hearing set on 25 April 2014. The issue with the notice of this motion is that it is referring to discovery served upon “. . . Defendant Exaltacion Park (hereinafter “Defendant”). . . .” (Notice of Motion, page 2, lines 3-4.) But Defendant is the moving party. There is no party named Exaltacion Park in this lawsuit.

On 16 April 2014, Defendant/Cross Complainant filed an amended notice which correctly names Plaintiff. However, this notice was filed with only seven court days of notice instead of 16 court days as required by Code of Civil Procedure, § 1005(b).

Therefore, on its own motion this Court continued the matter to today’s date and time to allow Moving Party Defendant/Cross Complainant to amend the notice and re-serve the notice and motion. That has now been done.

Additionally, on 1 May 2014, Defendant/Cross Complainant filed a second motion for an order deeming facts in requests for admissions to be deemed admitted.

This Court will address the merits of both motions.

The “To Be Deemed Admitted” Motion

On 25 March 2014, Defendant/Cross Complainant served requests for admissions, set to one, to Plaintiff/Cross Defendant. In a follow-up letter dated 25 April 2014, counsel for Defendant/Cross Complainant requested responses to the requests for admissions. No responses were forthcoming.

Code of Civil Procedure, § 2033.280 states:

“If a party to whom requests for admissions are directed failed to serve a timely response, the following rules may apply:

(a) The party to whom the requests for admissions are directed waives any objection to the requests, including one based on privilege or on the protection for work product. . . .”

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted as well as for monetary sanctions under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the requests for admissions that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

The motion is GRANTED. The requests for admissions are deemed ADMITTED.

Motion to Compel Further Responses

On 22 November 2013, Defendant/Cross Complainant personally served special interrogatories, set two, upon Plaintiff/Cross Defendant. On 20 December 2013, Defendant/Cross Complainant served special interrogatories, set three, and request for production of documents, set three, upon Plaintiff/Cross Defendant.

On 3 March 2014, the motion of Defendant/Cross Complainant to disqualify counsel for Plaintiff/Cross Defendant was denied, but shortly thereafter counsel withdrew with a substitution of attorney form. Although not required to do so, counsel for Defendant/Cross Complainant sent a follow-up letter dated 12 March 2014 demanding responses to the discovery. No response to the discovery has been forthcoming.

The motions are GRANTED. Code compliant responses without objections are due within 20 days of the date of the mailing of this Order.

Request for Monetary Sanctions

Defendant/Cross Complainant makes a request for monetary sanctions.

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.”

Defendant/Cross Complainant 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.

Other sections on which Defendant/Cross Complainant relies are also in applicable since they pertain to motions or oppositions that are not filed with substantial justification. Plaintiff/Cross Defendant did not oppose the motions so these sections are inapplicable.

However, the notice of the motion did include a warning that failure to timely oppose the motion could be treated by this Court as a waiver of the right to oppose the motion and grant the requested relief. This caveat invokes Rule of Court 3.1348(a). That section 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.”

This Court will therefore deem to be requests for sanctions to be code compliant. The Court will therefore award monetary sanctions in favor of Defendant/Cross Complainant. Defendant also seeks sanctions for time possibly spent arguing the motion. The Court does not grant speculative sanctions. Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) If Defendant does orally argue before the Court, the Defendant may bring up the issue of further sanctions at that time.

Plaintiff/Cross Defendant is ordered to pay the sum of $2070 in attorneys fees plus $90 in costs to counsel for Defendant/Cross Complainant within 20 days of the date of the filing of this Order.

Order

The motion to deem as admitted the requests for admissions is GRANTED. The requests for admissions are deemed ADMITTED.

The motions to compel responses to discovery are GRANTED. Code compliant responses without objections are due within 20 days of the date of the mailing of this Order.

Plaintiff/Cross Defendant is ordered to pay the sum of $2070 in attorneys fees plus $90 in costs to counsel for Defendant/Cross Complainant within 20 days of the date of the filing of this Order.