Lars Fuller v. Trung Mai, et al.		CASE NO. 114CV259083
DATE: 25 September 2014	TIME: 9:00	LINE NUMBER: 12

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 24 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 September 2014, the motion of Plaintiff Lars Fuller (hereinafter “Plaintiff”) to compel responses to Form Interrogatories, Sets One, Special Interrogatories, Sets One, Requests for the Production of Documents, Sets One, to have matters deemed admitted in Requests for Admissions, Sets One and for monetary sanctions was argued and submitted.[1]

Defendants Trung Mai and Con Hoa Mai (hereinafter “Defendants”) filed formal opposition to the motion and requested a protective order under Code of Civil Procedure section 2033.080.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

I.       Statement of Facts.

This matter arises out of a breach of a lease agreement. On 14 January 2014, Plaintiff filed the complaint in this matter. Plaintiff alleges that he executed a lease with Defendants, who remained in possession of the property until 16 January 2012. On that date, a fire broke out due to a grease buildup. Plaintiff alleges that Defendants were also negligent in failing to maintain the premises to prevent the fire. Defendants asserted several affirmative defenses[3].

II.      Discovery Dispute.

On 11 April 2014, Plaintiff served Form Interrogatories, Special Interrogatories, Requests for the Production of Documents, and Requests for Admission on Defendant Trung Mai. On 25 April 2014, Plaintiff served Form Interrogatories, Special Interrogatories, Requests for the Production of Documents, and Requests for Admission on Defendant Con Mai.

Defendants never responded to this discovery. Defendants’ counsel asserts that counsel has been unable to contact Defendants.

After several attempts to resolve the matter through correspondence, on 2 September 2014, Plaintiff filed the instant motion. On 12 September 2014, Defendants filed their opposition, along with some unverified responses. On 17 September 2014, Plaintiff filed his reply.

III.     Analysis.

A. Defendants’ Motion for a Protective Order

Defendants move for a protective order under Code of Civil Procedure section 2033.080. The Court may grant a protective order, for good cause shown, to protect a party or individual from answering requests for admission due to  unwarranted annoyance, embarrassment, oppression, or undue expense. Code Civ. Proc. §2033.080(b). This protective order can be as broad as necessary to preserve the interests of justice. Ibid.

Defendants seek a protective order under section 2033.080, which pertains only to requests for admission, but also seems to want it to apply to the other outstanding discovery in this matter. The Court will not consider the argument as it applies to other discovery devices because it was neither properly cited, nor does the Court believe that justice requires it to make its own motion.

Defendants argue that the fact that counsel cannot contact Defendants serves as good cause to issue a protective order. Counsel neglects the fact that protective orders of this nature are designed to protect the parties, not counsel. See, e.g., Deyo v. Kilbourne (2d Dist. 1978) 84 Cal.App.3d 771,782 (a verified signature on a response is a declaration that the party has disclosed all the information available to it); Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090 (citing Deyo, referring to the fact that verified responses allow opposing counsel to properly assess his or her client’s case). The fact that Defendants are difficult to locate and appears to be avoiding both Defendants’ counsel and Plaintiff does not demonstrate good cause. It shows the opposite.

Defendants also assert that Plaintiff’s counsel was aware that Defendants were unreachable before Plaintiff served the discovery in this matter. Defendants fail to state why, even if this were true, this demonstrates good cause. The first document in the record that references Plaintiff’s asserted knowledge is 9 June 2014, days after the discovery was due. Plaintiff granted an extension until 11 June 2014, but Defendants failed to respond further.

Defendants’ motion for a protective order is DENIED.

B.  Motions to Compel Responses to Interrogatories and Requests for Production of Documents

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 or demand for inspection 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.

Plaintiff has provided proof of service for the first set of form interrogatories, special interrogatories, and inspection demands. The deadline for the Defendants to respond has lapsed and the Defendants have not timely responded to any of Plaintiff’s discovery requests.

Defendants argue that the Court should relieve them of their waiver because they subsequently served a response to a demand, that the response is in substantial compliance with the statutory provisions governing the form and Defendants’ failure to respond was the result of mistake, inadvertence, or excusable neglect. See Code Civ. Proc. §§2030.290(a), 2031.300(a). Defendants failed in meeting their obligation.

First, the Proof of Service attached indicates that only Defendant Trung Mai’s responses to the Special Interrogatories was served and only Defendant Con Mai’s responses to Form Interrogatories and Request for Production of Documents were served. There is no evidence before the Court referencing the other responses that Plaintiff seeks.[4] Second, those responses that were served were unverified and therefore served as no responses at all. See Appleton v. Superior Ct. (3d Dist. 1988) 206 Cal.App.3d 632, 636. Finally, Defendants have not demonstrated how remaining out of contact with counsel was excusable neglect.[5]

Defendants’ responses do not meet the requirements for relief from waiver.

Accordingly Plaintiff’s motion to compel responses to Defendant’s discovery requests is GRANTED.  Defendants are ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

         C.                 Motion to have Requests for Admission Deemed Admitted

On 11 April 2014, Plaintiff served Requests for Admission, Set One on Defendant Trung Mai. On 25 April 2014, Plaintiff served Requests for Admission, Set One on Defendant Con Mai. Excepting Defendant Con Mai’s response, discussed, post, Defendants have not served any responses to their respective Requests for Admission.

Code of Civil Procedure, § 2033.280 states:

“If a party to whom requests for admissions are directed failed to serve a timely response, the following rules may apply:

(a) The party to whom the requests for admissions are directed waives any objection to the requests, including one based on privilege or on the protection for work product. . . .”

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted as well as for monetary sanctions under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the requests for admissions that is in substantial compliance with Section 2033.220.  It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

Defendant Con Mai served unverified responses as part of Defendants’ opposition to this motion. As stated, ante, unverified responses are tantamount to no response at all. Neither Defendant has served a response to the Requests for Admission.

The motion is GRANTED.  Their requests for admissions are deemed ADMITTED.

         B.  Sanctions.

Plaintiff makes a request for monetary sanctions.  The request is code-compliant.

In support of the request for sanctions, Plaintiff cites Code of Civil Procedure sections 2023.010, 2030.290[6], 2031.300, 2033.280.  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.

Although no meet and confer is required for this motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.) The Court notes that Plaintiff did make such attempts, although they were fruitless.

Sanctions Generally

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).

The Court may impose monetary, evidentiary, contempt or terminating sanctions where a party is engaging in conduct that is a misuse of the discovery process.  (See Code Civ. Pro. § 2023.030).  Misuses of the discovery process include but are not limited to:

(d) Failing to respond or to submit to an authorized method of discovery. (Code Civ. Pro. § 2023.010).

Monetary Sanctions

The California Code of Civil Procedure states that the Court shall impose monetary sanctions in many different situations. See Code Civ. Pro. § 2023.020 (Imposing monetary sanctions for expenses incurred as a result of a party’s failure to meet and confer); Code Civ. Pro. § 2030.290(c) (Imposing monetary sanctions for a motion to compel answers to interrogatories); Code Civ. Pro. § 2033.280(c) (Imposing monetary sanctions for delay or failure to respond to a request for admission); Code Civ. Pro. § 2031.300(c) (Imposing monetary sanctions against losing party in motion to compel response to inspection demand)

In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49).  Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551).

Counsel declares that his rate is $250.00 per hour. This is a reasonable rate within Santa Clara County. Counsel further declares that he spent 2.5 hours drafting the documents filed for this motion. This is a reasonable time to prepare the motion. The Court will award sanctions for this work.

Counsel requests 1.2 hours in sanctions for preparing meet and confer correspondence and reviewing responses. This time is not appropriate to calculate for sanctions. Meeting and conferring is strongly encouraged to prevent the need to bring these motions, and for some motions necessary as a prerequisite to bring a motion, but the time spent meeting and conferring is not, in itself, incurred in filing the motion.[7] The Court will not award sanctions for this time.

Counsel declares that he anticipates 0.5 hours to review the opposition filed and up to 1 hour filing a reply. This information was included in the original filing of the motion and was speculative at the time. The amount of time spent reviewing and preparing a reply would have properly been addressed in the reply itself. It was not, so the Court will not award sanctions for this time.

Finally, counsel declares that he anticipates spending up to 3 hours in the event the matter goes to oral hearing. This amount is speculative at this time. Should the matter be brought for hearing, counsel may address the matter of sanctions at that time.

Plaintiff’s request for monetary sanctions against Defendants Trung Mai and Con Mai and against Defendants’ counsel is GRANTED IN PART. Defendants and counsel shall pay $625.00 to Plaintiff’s counsel within 20 days of the date of this order.

 

IV.     Order.

Defendants’ motion for a protective order is DENIED.

Plaintiff’s motion to compel responses to Defendant’s discovery requests is GRANTED.  Defendants are ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

The motion is GRANTED.  Their requests for admissions are deemed ADMITTED.

Plaintiff’s request for monetary sanctions against Defendants Trung Mai and Con Mai and against Defendants’ counsel is GRANTED IN PART. Defendants and counsel shall pay $625.00 to Plaintiff’s counsel within 20 days of the date of this Order.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”

[2] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[3] Defendants state in their memorandum of points and authorities for this matter that Defendants’ counsel has never been able to contact the Defendants. Defendants’ counsel was retained by Defendants’ insurance carrier. The Court has questions about how Defendants were able to file an answer if counsel could not contact them.

[4] This includes Trung Mai’s responses to Form Interrogatories, Set One and Request for Production of Documents, Set One and Con Mai’s responses to Special Interrogatories, Set One.

[5] Defendants did not argue that failure to communicate with counsel was mistake or inadvertence.

[6] Plaintiff cites section 2030.300 in his notice of motion, but properly refers to section 2030.290 in his memorandum of points and authorities. Because of all of the other justifications for sanctions in this matter, the mis-citation of authority here will not be held against him.

[7]The Court does not have the authority to grant sanctions for failure to meet and confer.  (See Weil & Brown at ¶¶8:867, 8:1194, citing CCP § 2023.040; see Code Civ. Proc., § 2023.030, subd. (a).)