Case Name: Kalfala Tamba v. Skyline Decking, Inc., et al.

Case No.: 17CV308191

Defendant’s Motion to Compel Plaintiff’s Responses, Without Objections, to Form and Specially Prepared Interrogatories, and Request for Production of Documents; Request for Order Awarding Monetary Sanctions Against Plaintiff and his Attorney, M. Alieu Iscandari, in the Amount of $1,972.50

Discovery Dispute

On April 4, 2017, plaintiff Kalfala Tamba (“Tamba”) filed a complaint against defendant Skyline Decking, Inc. (“Skyline”) arising from a motor vehicle accident which occurred on April 19, 2015.

On May 30, 2018, defendant Skyline served plaintiff Tamba, by mail, with form interrogatories—general (“FI”), set one; specially prepared interrogatories (“SI”), set one; and a request for production of documents (“RPD”), set one.

Plaintiff Tamba’s responses to the FI, SI, and RPD were due on July 5, 2018. By July 9, 2018, defendant Skyline had not received any responses from plaintiff Tamba nor any request for extension from plaintiff Tamba’s counsel. On July 9, 2018, defendant Skyline’s counsel sent a meet and confer letter to plaintiff Tamba’s counsel requesting responses. Defendant Skyline received no responses thereafter and on July 24, 2018, defendant Skyline’s counsel sent another meet and confer letter to plaintiff Tamba’s counsel requesting responses by July 27, 2018.

On July 27, 2018, plaintiff Tamba’s counsel emailed defendant’s counsel stating he and his client were out of town and he would “provide objection free responses as soon as [his client] comes back into town.” On August 10, 2018, plaintiff Tamba’s counsel left a voicemail for defendant Skyline’s counsel asking to speak to defendant Skyline’s counsel. On August 10, 2018, defendant Skyline’s counsel attempted to return the phone call, but could not leave a voicemail as the voicemail box was full. Defendant Skyline’s counsel sent an email to plaintiff Tamba’s counsel documenting his attempt to call plaintiff Tamba’s counsel.

As of August 21, 2018, defendant Skyline’s counsel did not receive any discovery responses from Plaintiff or any further contact from plaintiff Tamba’s counsel.

On August 29, 2018, defendant Skyline filed the instant motion to compel plaintiff Tamba’s responses to FI, SI, and RPD along with a request for monetary sanctions.

III. Defendant Skyline’s motion to compel plaintiff Tamba’s response, without objections, to FI, SI, and RPD is GRANTED.

“If a party to whom interrogatories are directed fails to serve a timely response, … the party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., §2030.290, subd. (b).)

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, … the party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., §2031.300, subd. (b).)

In opposition, plaintiff Tamba acknowledges responses to defendant Skyline’s discovery requests were not provided. Plaintiff Tamba’s counsel declares he has been fighting and recovering from cancer for the past several years. In July 2018, plaintiff Tamba’s counsel and plaintiff Tamba were out of the country. Plaintiff Tamba’s counsel’s mother passed away on August 1, 2018 and plaintiff Tamba’s counsel returned to Africa on August 4, 2018. Plaintiff’s counsel attempted to telephone defendant Skyline’s counsel on August 10, 2018, leaving a voicemail which asked to speak to defendant Skyline’s counsel. Plaintiff Tamba’s counsel hired Varlack Legal Services (“Varlack”) to associate as co-counsel in mid-August 2018. Plaintiff Tamba’s counsel served defendant with a Notice of Association of Counsel on August 21, 2018. The week after associating with plaintiff Tamba’s counsel, Varlack left a voicemail for defendant Skyline’s counsel requesting copies of the discovery requests. A few days after leaving the voicemail, Varlack spoke with defendant Skyline’s counsel who agreed to send copies of the discovery requests. On September 24, 2018, having not received copies of the discovery requests, Varlack emailed defendant Skyline’s counsel again requesting copies of the discovery requests. As of October 30, 2018, Varlack is in the process of drafting plaintiff Tamba’s responses, without objection, to defendant Skyline’s discovery requests.

In the absence of admissible evidence that plaintiff Tamba has actually served responses, without objection, to defendant Skyline’s discovery requests, the motion is not deemed moot. Accordingly, defendant Skyline’s motion to compel plaintiff Tamba’s responses, without objections, to FI, SI, and RPD is GRANTED. Plaintiff Tamba shall provide responses, without objection and in compliance with the Code of Civil Procedure, to defendant Skyline’s FI, SI, and RPD, within 10 calendar days from notice of entry of this order.

Defendant Skyline requests monetary sanctions in the amount of $1,972.50 against plaintiff Tamba and plaintiff Tamba’s counsel pursuant to Code of Civil Procedure sections 2030.290, subdivision (c), and 2031.300, subdivision (c). In opposition, plaintiff Tamba’s counsel requests monetary sanctions against defendant Skyline in the amount of $5,500. Defendant Skyline is entitled to an award of monetary sanctions. Plaintiff Tamba’s counsel did not act with substantial justification nor are there other circumstances which would make the imposition of sanctions unjust. Defendant Skyline served the discovery requests on May 30, 2018. Plaintiff and plaintiff’s counsel were out of the country in July 2018. Plaintiff and his counsel do not present any evidence of exigent circumstances for their travel in July 2018 so they should have anticipated discovery responses would be due prior to their travel. While plaintiff’s counsel declares he has been fighting and recovering from cancer for the past several years, the court is not persuaded that plaintiff counsel’s condition prevented him from timely responding or from requesting an extension in advance of the due date. The court is sympathetic to the death of plaintiff’s counsel’s mother, but again that provides no justification for plaintiff’s counsel’s failure to communicate or request an extension. That plaintiff’s counsel associated with co-counsel who requested copies of the discovery is also not substantial justification to avoid sanctions. There is no evidence that Varlack made any offer to provide objection-free responses to avoid the necessity of this motion. Accordingly, plaintiff Tamba’s request for monetary sanctions is DENIED.

Defendant Skyline’s counsel declares he expended five hours to draft this motion and anticipates expending another four hours to draft a reply and attend the hearing. Defendant Skyline’s counsel further declares expending $60 for a filing fee. Defendant Skyline’s counsel declares he is in-house counsel for Liberty Mutual and does not bill but is informed and believes a reasonable hourly rate is $225 per hour. The court awards sanctions only for expenses actually incurred, not for anticipated expenses. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Accordingly, defendant Skyline’s request for order awarding monetary sanctions is GRANTED. Plaintiff Tamba shall pay to defendant Skyline monetary sanctions in the amount of $1,185 within 30 calendar days from notice of entry of this order.