Hale, et al. v. Social Valley, LLC, et al. CASE NO. 112-CV-230653
DATE: 1 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 Wednesday 30 April 2014. Please specify the issue to be contested when calling the Court and counsel.

On 1 May 2014, the motions of Plaintiff Keith Aaron Hale (“Hale”) and Plaintiff Jason Lee Johnson (“Johnson”, collectively, “Plaintiffs”) to compel and for judicial notice and monetary sanctions was argued and submitted. Defendants Social Valley, LLC (“Social Valley”), Bic Pho (“Pho”), and Steve Ernst (“Ernst”, collectively, “Defendants”) did not file formal opposition to the motion.

I. Factual Background
II.
This case is a breach of contract claim. Defendant Social Valley represented to Plaintiffs that it was planning an event in September of 2012 at California’s Great America, an amusement park, and needed famous recording artists to perform at the event. In April of 2012, Plaintiff Johnson entered into an agreement with Defendants on behalf of The Conglomerate Group, LLC whereby Plaintiffs would secure recording artists to perform at Defendants’ event in exchange for a fee. Plaintiffs secured such talent but were informed on 5 May 2012 that Social Valley had not acquired the necessary capital to fund the event, including The Conglomerate Group’s contract. This suit for breach of contract followed.

The subject of the instant motion to compel is documents in Defendants’ possession that relate to their defense to the breach of contract claim. On 5 February 2014, Plaintiffs propounded a request for production of documents to Defendants. Responses were due on or before 11 March 2014. Having received no responses, on 18 March 2014, counsel for Plaintiffs sent a meet and confer letter via fax and US mail. Defendants responded via email requesting an extension until 28 March 2014 to produce the relevant documents. Plaintiffs granted this request.

At the end of 28 March 2014, Defendants’ counsel sent another request for extension until 4 April 2014, which Plaintiffs also granted. Having received no responses by the end of 7 April 2014, Plaintiffs called, faxed, and emailed Defendants with a request that they submit copies of their responses via fax. On 8 April 2014, Plaintiffs’ counsel contacted Defendants’ counsel to schedule a hearing on the motion to compel responses to the request for production of documents.

Plaintiffs filed the instant motion to compel on 9 April 2014. To date, Plaintiffs have not received any responses to their requests.

III. Discussion
IV.
a. Motion to Compel
b.
The party making a demand for inspection, copying, testing or sampling shall serve a copy of the demand on the party to whom it is directed. California Code of Civil Procedure (“CCP”) § 2031.040. The party to whom the request is directed shall respond within 30 days after service. CCP § 2031.030(c)(2). The party to whom the requests are directed fails to serve a timely response, the party waives any right to objection on the request, including one based on privilege or on the protection for work product. CCP § 2031.300.

Plaintiffs properly propounded the requests on 5 February 2014. According to subsequent meet and confer efforts, the responses became due beyond the 30 day deadline on 4 April 2014. Plaintiffs have received no responses to date.

As such, Plaintiffs’ motion to compel responses is GRANTED. Defendants are ordered to respond to the request without objection and within three (3) days of the date of the filing of this order as per Plaintiffs’ request in their reply.

c. Judicial Notice
d.
Plaintiffs request that this Court take judicial notice of the following:

1. This Court’s Order Granting Plaintiffs’ Motion to Compel Responses to Interrogatories and for Sanctions Against Defendants in the Amount of $1200 dated 8 November 2013.
2.
3. This Court’s Tentative Ruling dated 22 January 2014.
4.
A court may take judicial notice of court records that are relevant to a pending issue. Evid. Code § 452(d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2 (noting that only relevant matters are subject to judicial notice). To be relevant, the matter must help prove or disprove an important disputed fact. Evid. Code §210; People v. Broderick Boys (2007) 149 Cal.App.4th 1506, 1524.

Plaintiffs’ request for judicial notice is filed as support to the motion to compel to show that they had met and conferred with counsel prior to seeking assistance from the Court in resolving discovery matters. However, Defendants have filed no opposition and have not made Plaintiffs’ efforts at meet and confer an issue in this instant motion and as such, the documents provided do not help to prove or disprove an important disputed fact within the meaning of Broderick, supra. As such, Plaintiffs’ request for judicial notice is DENIED.

e. Sanctions
f.
Plaintiffs also request sanctions of $1740.00. Counsel represents that this amount is appropriate given that his hourly rate is $300/hour, that he spent three hours preparing the motion, and that he anticipates two and a half hours in future expenses. This request is not code-compliant.

First, Plaintiffs’ counsel’s request is deficient in that it fails to identify the parties against whom sanctions are sought. Code of Civil Procedure, section 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 for facts supporting the amount of any monetary sanction sought.” CCP § 2023.040 (emphasis added).

In his moving papers, Plaintiffs’ counsel simply requested sanctions against “Defendants”. The Court believes that the statute requires that the parties or persons against whom sanctions are sought be identified by name.

Second, Counsel’s request is also deficient in that it fails to cite the correct authority for sanctions. Counsel cites as support for his motion for sanctions CCP sections 2023.030 and 2023.040. However, section 2023.040 details the requirements of a motion for sanctions and is not an independent basis upon which this Court may grant sanctions. Likewise, section 2023.030 authorizes sanctions for misuse of discovery only insofar as is authorized by a chapter governing any particular discovery method, for example, section 2031.300(d) for sanctions in relation to failure to respond to a request for production. CCP § 2023.030. As such, 2023.030 is also not an independent basis upon which this Court may grant sanctions. However, seeing as how Defendants did not file opposition, section 2031.300(d) would have been equally unavailing to counsel. In cases where there is no opposition, plaintiffs’ counsel should cite as support Cal. Rules of Court, rule 3.1348(a).

Finally, sanctions are only awarded for expenses actually incurred and not for anticipated costs. Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.

Plaintiffs’ motion for monetary sanctions is DENIED.

V. Conclusion
VI.
Plaintiffs’ motion to compel responses is GRANTED. Defendants are ordered to respond to the request without objection and within three (3) days of the date of the filing of this order as per Plaintiffs’ request in their reply.

Plaintiffs’ request for judicial notice is DENIED.

Plaintiffs’ motion for monetary sanctions is DENIED.