Satterwhite v. Progressive		CASE NO. 114CV267778
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 23

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 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On22 August 2014, the motion of Respondent Progressive Choice Insurance to:

1. compel responses to Respondent’s form interrogatories, set one, and request for production of documents, set one, and request for monetary sanctions;
2. compel attendance to deposition, and request for monetary sanctions

were argued and submitted.  Claimant Kuntu M. Satterwhite did not file formal opposition to the motion.[1]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

I.  Statement of Facts.

Claimant claims to have been injured as a result of a motor vehicle accident that took place on 14 March 2012. The accident occurred on Monterey Road in San Jose, California.

Claimant filed a claim for an uninsured motorist arbitration. Subsequently, Respondent propounded initial discovery in order to “properly evaluate [the] matter for the purposes of binding arbitration.” (See Respondent’s Petition for Assignment of Case Number for an Uninsured Motorist Claim, p. 1).

II.            Discovery Dispute.

On 4 April 4 2014, Respondent propounded initial discovery, namely, form interrogatories, set one, a request for production of documents, set one, and a notice of taking deposition. On 22 May 2014, defense counsel sent a letter to Claimant, demanding verified answers to the foregoing discovery. Claimant never responded to the letter nor did he provide discovery.

III.           Analysis.

A.           In General

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.  (Leach v. Super. Ct. (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 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.

1.            Form Interrogatories

A demand to answer interrogatories may be propounded upon an adverse party. Code Civ. Proc. § 2030.010.  A party must respond to each interrogatory within 30 days, unless the propounding party grants an extension of time within which to respond. Code Civ. Proc. §§ 2030.260(a), 2030.270(a-c). A party may seek a motion to compel responses when the adverse party fails to respond to the demand within the timeframe specified by statute or extension. Code Civ. Proc. § 2030.290(a).

The motion of Respondent to compel Claimant to respond to form interrogatories, set one, is GRANTED.  Claimant is to provide code compliant responses without objections within 20 days of the date of the filing of this Order.

               2.            Request for Production of Documents

A demand to produce documents may be propounded upon an adverse party in an attempt to seek relevant information. Code Civ. Proc. § 2031.010(a-e). A party must respond to each request for the production of documents within 30 days, unless the propounding party grants an extension of time within which to respond. Code Civ. Proc. §§ 2031.260, 2031.270(a-c).  A party may seek a motion to compel production when the adverse party fails to respond to the request for production in a timely fashion. Code Civ. Proc. § 2031.300(b).

Here, Respondent has provided proof of service for both the form interrogatories, set one, and demand to produce documents, set one. The deadline for Claimant to respond has lapsed and Claimant has not timely responded to these discovery requests.

Accordingly, Respondent’s motion to compel responses to form interrogatories, set one, and request for production of documents, set one, is GRANTED.  Claimant is to provide code compliant responses without objections within 20 days of the date of the filing of this Order.  As

3.            Notice of Deposition and Request to Produce Documents

On 4 April 2014, Respondent also propounded a  “Notice of Deposition of Claimant; Notice to Produce Documents.”

A notice of taking deposition may be propounded upon an adverse party. Code Civ. Proc. § 2025.450(a). If, after proper notice, a party fails to appear without having served a valid objection under Code Civ. Proc. § 2025.410, the party giving notice “may move for an order compelling the deponent’s attendance and testimony, and for the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” Id.

Pursuant to Code Civ. Proc. § 2025.450(b), a motion under Code Civ. Proc. § 2025.450(a) must comply with both of the following:

1)      The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

2)      The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.  (Emphasis added.)

An argument might be made that Respondent’s motion to compel fails to set forth specific facts showing “good cause” to justify the production of the documents described in the deposition notice.

However, Weil & Brown state that “”[t]he party noticing the deposition need not show ‘good cause’ for inspection in the deposition notice.  But he or she must be prepared to do so if the deponent refuses to produce the documents, ESI or things requested.”  (Section 8:532.2.)

While it would have been better for Respondent to show good cause for production of the records in the notice of deposition and in this motion, it does not appear to be required at this juncture.  The request is code compliant, therefore Respondent’s motion to compel Claimant’s appearance and production of documents at deposition is GRANTED.  Claimant is to appear for a deposition in a code compliant location within 20 days of the date of the filing of this Order.  He is to produce the documents stated in the deposition notice since objections are waived.

         B.  Sanctions.

Respondent makes a request for monetary sanctions.

Code of Civil Procedure § 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 forth facts supporting the amount of any monetary sanction sought.”  See Rule of Court 2.30.

This request is not code-compliant.

Respondent, in its notice of motion, cites Code Civ. Proc. §§ 2030.290(c) and 2031.300(c) as grounds for sanctions. Section 2030.290(c) addresses sanctions when a party fails to make a timely response to interrogatories. Section 2031.300(c) similarly addresses sanctions when a party fails to make a timely response to demands for production of documents. Both of these sections state that a monetary sanction is appropriate when a party is unsuccessful in filing or opposing a motion.

However, when no opposition papers are filed, the proper source of authority for monetary sanctions is 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.”

In the future, counsel would be advised to add the following language in the notice of your motion: “If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a).

The request of Respondent for monetary sanctions against Claimant is DENIED.

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IV.           Order.

The motion of Respondent to compel Claimant to respond to form interrogatories, set one, is GRANTED.  Claimant is to provide code compliant responses without objections within 20 days of the date of the filing of this Order.

The motion of Respondent to compel Claimant to respond to form interrogatories, set one, is GRANTED.  Claimant is to provide code compliant responses without objections within 20 days of the date of the filing of this Order.

Claimant is to appear for a deposition in a code compliant location within 20 days of the date of the filing of this Order.  He is to produce the documents stated in the deposition notice since objections are waived.

The request of Respondent for monetary sanctions against Claimant is DENIED.

 

 

________________­­­____________ 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).