Howsley v. Target Corp.		CASE NO. 114CV261626
DATE: 14 November 2014	TIME: 9:00	LINE NUMBER: 17

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 13 November 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 14 November 2014, the motions of Defendant Target Corp. for

1. an order deeming Defendant’s request for admissions, set one, to be admitted and for monetary sanctions; and
2. an order to compel Plaintiff to respond to form interrogatories, set to one, special interrogatories, set one, and to respond to requests for production of documents, set one, and for monetary sanctions

were argued and submitted.

Plaintiff did not file formal opposition to the motion.[1]

1. Statement of Facts.

Plaintiff alleges personal injuries as the result of an accident in the parking lot of the Sunnyvale target store on 10 March 2012.

1. Discovery Dispute.

Defendant served the above discovery by mail on 4 August 2014.  While there were discussion in several attempts to resolve the matters pertaining to the form interrogatories, special interrogatories and the request for production of documents, there does not appear to have been any discussion concerning the requests for admissions.

Defendant filed the present motions on 14 October 2014.

III.     Analysis.

Although no meet and confer is required for this motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)

1. Request For Admissions, Set One.

Failure to timely respond to RFA does not result in automatic admissions.  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) (“Weil & Brown”) at ¶8:1370.)  The propounder of the RFA must “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.”  (Id., citing Code of Civ. Proc. (“CCP”) § 2033.280(b).)  The Court should enter an order having the RFA be deemed admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance.”  (CCP § 2033.280(c).)

A “court must grant a motion to have the mission requests deemed admitted where responses . . . were not in substantial compliance” with the Code of Civil Procedure.  (Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal. App. 4th 1546, 1551, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 983 (fn. 12.)

The motion of Defendant for an order deeming their requests for admissions to be admitted is GRANTED.  The requests for admissions are deemed ADMITTED.

1. Form Interrogatories, Set to One, Special Interrogatories, Set One, and to Respond to Requests for Production of Documents, Set One.

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.

Defendant has 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 Defendant’s discovery requests.

Accordingly, Defendant’s motion to compel responses to Defendant’s discovery requests is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

1. Sanctions.

Defendant makes a request for monetary sanctions.  In the notice of motion, Defendant correctly cited Rule of Court 3.1348(a) which 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.”

The request is code-compliant.  Code of Civil Procedure, § 2023.040.

1. Requests for Admissions.

Plaintiff requests monetary sanctions pursuant to Code of Civil Procedure, § 2033.280(c), which requires the Court to impose monetary sanctions on a party who fails to serve a timely response to RFA.  “Although delayed responses may defeat a motion to compel, they will not avoid monetary sanctions.”  (Weil & Brown, supra, at ¶8:1376, citing CCP § 2033.280(c).)  Plaintiff’s tardy responses and excuses do not preclude these mandatory monetary sanctions,  Thus, sanctions are warranted.

Plaintiff is ordered to pay the sum of $460 to counsel for Defendant within 20 days of the date of the filing of this Order.

2. Form Interrogatories, Set to One, Special Interrogatories, Set One, and to Respond to                                              Requests for Production of Documents, Set One.

Plaintiff is ordered to pay the sum of $260 to counsel for Defendant within 20 days of the date of the filing of this Order.

1. Order.

The motion of Defendant for an order deeming their requests for admissions to be admitted is GRANTED.  The requests for admissions are deemed ADMITTED.

Defendant’s motion to compel responses to Defendant’s discovery requests is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

Plaintiff is ordered to pay the sum of $720 to counsel for Defendant 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).