2011-00095474-CU-BC

James Smith vs. Anthony Lewis

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Smith, James

Self-represented Plaintiff James Smith’s Motion for Terminating and/or Evidentiary
Sanctions against Defendants Anthony Lewis, Jim Clark, Tania Chegini and Linda
Infante is GRANTED. The Defendants’ Answers are ordered STRICKEN.
Code of Civil Procedure section 2023.010, 2023.030, 2030.300 and 2031.320. The
request for imposition of monetary sanctions is DENIED.

Defendants’ Opposition was untimely filed and served. It should have been served
nine court days prior to the hearing, or Sept. 19, by means calculated to arrive the next
business day. CCP sec. 1005. Instead it was deposited in the US Mail on Sept. 23,
and not filed with the Court until Tues. Sept. 24, 2013. However, the Court has
considered the belatedly filed document, as plaintiff has filed his reply.

On June 19, 2013 plaintiff served Form and Special Interrogatories and Request for
Production (Sets Nos. 5 and 7) on Defendants. In his motions to compel, Plaintiff
declared that no responses were received by him on or after the due date.

On August 23, 2013, this Court granted the plaintiff’s two unopposed motions to
compel verified, written responses to the plaintiff’s Form and Special Interrogatories
and Request for Production (Sets Nos. 5 and 7). Compliance by defendants was
ordered by Sept. 3, 2013.

In this motion, Plaintiff declares that as of Sept. 9, 2013 he had received no responses
and the defendants simply refuse to comply with the discovery code.

In Opposition, defense attorney Pearson declares that he timely served the Court
ordered discovery responses. Although the declaration fails to affirmatively represent
the date of such service, the proofs of service to the discovery responses attached to
Pearson’s declaration reflect service on plaintiff by US Mail on Sept. 3, 2013.

In reply, plaintiff disputes the adequacy of the Verification forms attached to the
defendants’ discovery responses, which are signed by Pearson as counsel for the
defendants with the representation that he is signing for the parties, pursuant to
C.C.P., sec. 446, as his clients are absent from the County. However, C.C.P., sec.
446 by its terms applies only to the verification of pleadings, not discovery responses. The plain statutory language of C.C.P., secs. 2030.250(a) and 2031.250(a) compels
the conclusion that a party, and not the attorney, must verify written discovery
responses. Steele v. Totah (1986) 180 Cal. App. 3d 545, 550; see also Weil & Brown
(TRG 2012) California Civil Procedure Before Trial, sec. 8:1108.

In the absence of verifications signed by the defendants responding to the discovery,
the discovery responses are unverified and fail to comply with the Court order.
Unverified responses “are tantamount to no responses at all.” Appleton v. Superior
Court (1988) 206 Cal. App. 3d 632, 636.

Sanctions are denied, as plaintiff’s declaration fails to itemize the monetary sanctions
sought, simply requesting $2,000.00. As Smith is self-represented he has not incurred
any attorneys’ fees. If pro se litigants actually incur expenses for computer-assisted
legal research, or photocopying, or transportation to and from court, or any other
identifiable item, there is no reason those expenses cannot be recovered as discovery
sanctions. Kravitz v. Superior Court (2001) 91 Cal. App. 4th 1015, 1021. However,
without any declaration identifying the reason the costs were incurred, the request
must be denied.

Plaintiff’s motion for terminating or evidentiary sanctions for defendants’ failure to
comply with their discovery obligations or with the Court orders is therefore granted.
The Defendants’ Answers are ordered STRICKEN.

Plaintiff may submit the proper Judicial Council forms for entry of default.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.