Case Name: Karen Mou v. Santa Clara County Law Library, et al.
Case No.: 2012-1-CV-226909

Currently before the Court is the motion by plaintiff Karen Mou (“Plaintiff”) to compel defendants Karen Bailey, Kristin Renmers, Roger Hyunh, Wei-Yua Huang, Mary Thai, Tom Hewitt, and Steven Hallgrimson (collectively, “Defendants”) to provide further responses to form interrogatories, set two (“FI”), and for an award of monetary sanctions.

Factual and Procedural Background

This action arises out of Plaintiff’s suspension from defendant Santa Clara County Law Library (“Library”). Plaintiff filed the operative second amended complaint (“SAC”) on February 19, 2013, alleging two causes of action for violation of Civil Code section 52 and defamation, respectively. Defendants and Library demurred to each cause of action in the SAC on the ground of failure to state sufficient facts to constitute a cause of action. The demurrer was sustained without leave to amend in April 2013, and a judgment of dismissal was entered shortly thereafter pursuant to Code of Civil Procedure section 581, subdivision (f)(1). Plaintiff appealed and the Sixth District Court of Appeal reversed the judgment on the basis that the order sustaining the demurrer to the first cause of action for civil rights violations was erroneous. The appellate court explicitly concluded, however, that the demurrer to the defamation cause of action was properly sustained without leave to amend.

Discovery Dispute

On November 4, 2016, Plaintiff personally served Defendants with FI Nos. 2.11, 4.1, 12.1-12.7, 13.2, 14.2, 15.1, and 16.1.

On December 5, 2016, Defendants served Plaintiff with their unverified responses to the FI via U.S. mail. Each set of responses is virtually identical. The responses are signed by Defendants’ counsel and contain a preliminary statement, asserting various objections to each and every interrogatory. Defendants also provided substantive responses to FI Nos. 2.11, 4.1, 14.2, and 16.1; hybrid responses to FI Nos. 12.1-12.7 and 13.2; and an objection-only response to FI No. 15.1.

Approximately one week later, Plaintiff sent a meet and confer email to Defendants’ counsel regarding purported deficiencies in Defendants’ responses to the FI.

On January 23, 2017, Plaintiff sent another email to Defendants’ counsel, stating that she intended “to bring a motion to compel on March 30, 2017.” She asked Defendants’ counsel to tell her if that date was agreeable by the end of the day. Defendants’ counsel promptly replied, and told Plaintiff that he had no idea what her “motion to compel” was about because Defendants had complied with all outstanding discovery. He also asked that the motion be set sometime after April 10, 2017. Shortly thereafter, Plaintiff advised Defendants’ counsel that she would set the motion for hearing on April 13, 2017.

On March 21, 2017, Plaintiff filed and served the instant motion to compel Defendants to provide further responses to FI Nos. 2.11, 4.1, 12.1-12.7, 13.2, 14.2, 15.1, and 16.1, and for an award of monetary sanctions. Subsequently, Defendants filed an opposition to the motion on March 30, 2017. Plaintiff filed a reply on April 6, 2017.

Discussion

I. Timeliness of the Motion

As a threshold matter, the Court must determine whether the instant motion is timely.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).) “Unless notice of this motion is given within 45 days of the service of the verified response … the propounding party waives any right to compel a further response to the interrogatories.” (Code Civ. Proc., § 2030.300, subd. (c).) For responses served by mail within California, five calendar days are added to the time to notice the motion. (Code Civ. Proc., § 1013, subd. (a).)

Courts lack jurisdiction to rule on motions to compel further responses that were noticed after the deadline provided by law. (See Sexton v. Super. Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410 (“Sexton”) [demands for production]; see also Vidal Sasoon, Inc. v. Super. Ct. (Halpern) (1983) 147 Cal.App.3d 681, 685 [interrogatories].) While the deadline is not necessarily “jurisdictional” in the fundamental sense, it is at least “quasi-jurisdictional” in the sense that it renders courts without authority to rule on the motions other than to deny them. (See Sexton, supra, 58 Cal.App.4th at p. 1410.)

Here, Defendants served Plaintiff with their responses to the FI on December 5, 2016. Plaintiff points out that Defendants’ responses were not verified, and asserts that the responses are, therefore, “legally invalid.” While unsworn discovery responses are generally tantamount to no responses at all (Appleton v. Super. Ct. (Cook) (1988) 206 Cal.App.3d 632, 635-36), only substantive responses to discovery requests must be verified (Code Civ. Proc., § 2030.250, subd. (a)). A party is not required to verify its objections, even if the objection is in a “hybrid” response that also contains a substantive answer. (Food 4 Less, supra, 40 Cal.App.4th at pp. 657-658; see Code Civ. Proc., § 2031.250, subd. (c).) Instead, the attorney for the responding party must sign any responses that contain an objection. (Code Civ. Proc., § 2030.250.)

In this case, Defendants’ responses were signed by counsel. Defendants provided objection-only responses to FI No. 15.1 and, consequently, those responses do not need to be verified. (See Food 4 Less, supra, 40 Cal.App.4th at pp. 657-658; see also Code Civ. Proc., § 2031.250, subd. (c).) Additionally, even though the substantive portions of Defendants’ responses to FI Nos. 12.1-12.7 and 13.2 should have been verified, the objections to those requests do not need to be verified and, therefore, constitute responses to the FI. (See ibid.) Finally, Defendants’ substantive responses to FI Nos. 2.11, 4.1, 14.2, and 16.1 should have been verified. (See Code Civ. Proc., § 2030.250, subd. (a).) However, in the preliminary statement of their responses, Defendants asserted boilerplate objections to each and every discovery request on the grounds of the attorney-client and work product privileges. These boilerplate assertions of the attorney-client and work product privileges are sufficient to preserve the objections (see Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189) and, consequently, constitute responses to FI Nos. 2.11, 4.1, 14.2, and 16.1.

Because Defendants served responses to each of the FI on December 5, 2016, Plaintiff had a total of 50 days from that date within which to notice her motion under Code of Civil Procedure section 2030.300, subdivision (c). (See Code Civ. Proc., § 2030.300, subd. (c); see also Civ. Proc., § 1013, subd. (a).) Thus, the last date for Plaintiff to notice her motion was January 24, 2017. It is undisputed that Plaintiff did not file and serve her notice of motion and moving papers until March 21, 2017.

However, Plaintiff argues that she provided Defendants with adequate informal notice of the motion before it was filed and served through her emails to Defendants’ counsel on January 23, 2017. “Unless otherwise ordered or specifically provided by law, all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005 ….” (Cal. Rules of Ct., rule 3.1300(a).) Code of Civil Procedure section 1005, subdivision (a)(13) provides that noticed motions shall be upon written notice unless another method is prescribed. Because Code of Civil Procedure section 2030.300, subdivision (c) speaks only of undefined “notice,” Code of Civil Procedure section 1005, subdivision (a)(13) applies here.

California Rules of Court, rule 3.1110(a) and Code of Civil Procedure section 1010 further explain that a notice of motion must state in the opening paragraph the nature of the order being sought, the grounds for issuance of the order, and the papers, if any, upon which the motion is to be based. “If any such paper has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice.” (Code Civ. Proc., § 1010.) Thus, under the Code of Civil Procedure, Plaintiff was required to serve Defendants with written notice of her motion to compel further responses to the FI, describing the nature of the order being sought and the grounds for issuance of the order, and her moving papers. (See Karz v. Karl (1982) 137 Cal.App.3d 637, 646-647 [holding that the court had jurisdiction to hear a motion to compel further responses to interrogatories because the motion had been served on the opposing party within the statutory deadline, even though the motion was not filed until after the statutory deadline].)

Plaintiff’s January 23, 2017 emails do not constitute adequate written notice of the instant motion. In her emails, Plaintiff merely told Defendants’ counsel that (1) she intended “to bring a motion to compel on March 30, 2017,” and (2) she subsequently set the motion for hearing on April 13, 2017. Plaintiff did not inform Defendants’ counsel of the nature of the order being sought in her “motion to compel” or the grounds for issuance of the order. Moreover, Plaintiff did not serve Defendants with a copy of her moving papers. In light of the foregoing, the Court finds that Plaintiff first provided Defendants with sufficient notice of the motion on March 21, 2017, when she served Defendants with her notice of motion and moving papers. Because Plaintiff’s deadline to notice the motion was January 24, 2017, the instant motion is untimely.

Accordingly, Plaintiff’s motion to compel further responses to the FI is DENIED.

II. Requests for Monetary Sanctions

Both Plaintiff and Defendants submit requests for monetary sanctions in connection with the instant motion.

A. Plaintiff’s Request

Plaintiff asks the Court for monetary sanctions in the amount of $550 against Defendants and their counsel pursuant to Code of Civil Procedure sections 2023.010 and 2030.290. (See Ntc. Mtn., p. 2:3-5.)

Plaintiff is not entitled to an award of monetary sanctions under the statutes cited above. First, Code of Civil Procedure 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. Second, Code of Civil Procedure section 2030.290 only authorizes monetary sanctions in connection with a motion to compel initial responses to interrogatories. (Code Civ. Proc., § 2030.290, subd. (c).) Consequently, that statute does not apply to the instant motion to compel further responses to the FI.

Even if Plaintiff cited the correct statute authorizing the imposition of monetary sanctions in connection with the instant motion—Code of Civil Procedure section 2030.300, subdivision (d)—she would not be entitled to an award of monetary sanctions because she was not successful on her motion. (See Code Civ. Proc., § 2030.300, subd. (d) [“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”].)

Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

B. Defendants’ Request

Defendants ask for an award of monetary sanctions against Plaintiff in the amount of $1,037.50 pursuant to Code of Civil Procedure sections 2030.010 and 2030.300.

As an initial matter, Defendants are not entitled to an award of monetary sanctions under Code of Civil Procedure sections 2030.010 because that statute 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, under Code of Civil Procedure section 2030.300, subdivision (d), the Court must impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Here, Plaintiff was unsuccessful on her motion. Furthermore, the Court finds that Plaintiff did not act with substantial justification and there are no other circumstances that make the imposition of monetary sanctions unjust. Consequently, Defendants are entitled to an award of monetary sanctions. Defendants’ counsel declares that his hourly rate is $415 and he spent two and a half hours preparing and drafting the opposition papers. (See Domingue Dec., ¶ 4.) The Court finds both the hourly rate and the time spent on the opposition to be reasonable.

Accordingly, Defendants’ request for monetary sanctions is GRANTED in the amount of $1,037.50. Within 20 days of the date of the filing of the Order, Plaintiff shall pay Defendants’ counsel, Berliner Cohen, monetary sanctions in the amount of $1,037.50