Isgrig v. Quality Inn, et al.		CASE NO. 113CV246089
DATE: 15 August 2014	TIME: 9:00	LINE NUMBER: 4

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

On 15 August 2014, the motion of Defendant ARS Hospitality L.L.C. (doing business as Quality Inn Sunnyvale; hereafter “ARS”) to:

1. compel responses to Defendant’s requests for production of documents, set one, and form interrogatories, interrogatories, set one[1] and request for monetary sanctions;
2. compel response to statement of damages, and request for monetary sanctions

was argued and submitted.

Plaintiff Lisa Isgrig (“Isgrig”) did not file formal opposition to the motion.[2]

I.  Statement of Facts

This matter arises out of a personal injury claim.  Plaintiff Isgrig alleges that on 13 May 2011, she slipped and fell on a wet surface outside of an elevator in a hotel owned by Defendant ARS.  On 10 May 2013, Plaintiff Isgrig filed a lawsuit, claiming that Defendant ARS was negligent for failing to maintain a safe environment for all hotel residents and for failing to warn residents of the wet floor.

On 21 May 2014, Defendant ARS propounded initial discovery, including form interrogatories, a request for production of documents, and a request for statement of damages upon Plaintiff Isgrig.  However, Plaintiff Isgrig failed to respond to all of Defendant ARS’s requests.

On 1 July 2014, Defendant ARS called Plaintiff Isgrig’s counsel, William H. Bassett (“Bassett”), to inquire as to the status of Plaintiff Isgrig’s overdue responses.  Defendant ARS left a voicemail with Bassett’s secretary.  However, Bassett did not return Defendant ARS’s phone call.

On 2 July 2014, Defendant ARS contacted Bassett via facsimile, stating that Plaintiff Isgrig’s responses were overdue.  However, once again, Defendant ARS did not receive a response.

On 11 July 2014, Defendant ARS filed the instant motion to compel Plaintiff Isgrig’s responses and for monetary sanctions against Plaintiff Isgrig and Bassett, her counsel.

II.  Analysis

A proper discussion of this motion should begin with the necessary elements of a proper notice of motion and memorandum of points and authorities.  See California Civil Discovery Practice § 15.46: “Notice of Motion and Motion.”

Code of Civil Procedure, § 1010 requires that the notice of motion “must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.”

• Date, time, and place of the hearing;

 

• Grounds on which the motion is being made, including whether the moving party requests sanctions, against whom the sanction is sought, and the type of sanctions (CCP § 2023.040); and

 

• Papers and other items supporting the motion.

In addition, the notice of motion must state “in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”  Cal. Rule of Ct. 3.1110(a).

A.    Motion to Compel Responses to Requests for Production of Documents, Set One and Interrogatories, Set One

        1.            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).

2.            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).

Here, on 21 May 2014, Defendant ARS served form interrogatories, a request for production of documents, and a request for statement of damages upon Plaintiff Isgrig.  Plantiff Isgrig never provided responses.  Thus, an order to compel responses to these requests is appropriate.

3.            Sanctions

Defendant ARS makes a request for sanctions.  The request is not code compliant.

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.”  (Emphasis added.)

First, the notice of the motion does not specify the type of sanction sought.  See also Quantum Cooking Concepts, Inc. v. LV Associates (2011) 197 Cal. App. 4th 927, 933-934 (failure to provide the court with the legal basis for the requested relief is grounds for denying a motion).  The request for sanctions could be denied on this basis alone.

Second, there is no authority cited for the imposition of sanctions.  The only authority claimed as the basis for an entitlement to sanctions is Code of Civil Procedure, § 2023.020.  Although section 2023.020 authorizes an award of sanctions against a party or attorney for failure to satisfy a meet and confer obligation, Defendant did not have any such obligation in this matter.[3]

The moving papers correctly note that a party filing an unopposed discovery motion may otherwise be entitled to sanctions under Rule of Court 3.1348(a), which states:

“Sanctions despite no opposition: 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.”[4]

However, citing this Rule of Court does not obviate the need to cite the statute authorizing an entitlement to sanctions, which, in this case would be Code of Civil Procedure, §§ 2030.290(c) and 2031.300(d).

In the conclusion of memorandum of points and authorities, Defendant ARS refers to Code of Civil Procedure, § 2032.240.  That section refers to the failure to serve a timely response to a demand for a physical examination and is inapplicable here.

The request for sanctions is DENIED.

                              4.            Order

The motion of Defendant ARS to compel Plaintiff Isgrig to respond to Defendant ARS’s request for production of documents, set one, and to form interrogatories, set one, is GRANTED.  Plaintiff Isgrig is to provide code compliant responses within 20 days of the date of the filing of this Order.  All objections are deemed waived.  The request for sanctions is DENIED.

B.           Motion to Compel Response to Requests for Statement of Damages

The Court also accepts Defendant ARS’s argument as it pertains to Plaintiff Isgrig’s statement of damages.  “Where a plaintiff who was properly served with a request for statement of damages fails or refuses to serve a responsive statement, Code of Civil Procedure section 425.11, subdivision (b) provides that the defendant may petition the court for an order that the plaintiff serve one.”  Argame v. Werasophon (1997) 57 Cal. App. 4th 616, 618.

Here, there is no dispute that Defendant ARS properly served a request for statement of damages and that Plaintiff Isgrig failed to respond.  Under these circumstances, the Court finds that Defendant ARS was authorized to file a motion to compel Plaintiff Isgrig to provide a response to Defendant ARS’s request for a statement of damages.

Based on the foregoing, Defendant ARS’s motion to compel responses to form interrogatories, request for production of documents, and request for statement of damages are GRANTED.

The court is unclear as to whether Defendant ARS claims an entitlement to sanctions of any type for Plaintiff Isgrig’s failure to respond to the request for a statement of damages.  But irrespective of the “meet and confer” doctrine, a motion to compel a statement of damages is outside the Discovery Act, and as such, the Act’s sanctions, which include Code Civ. Proc. § 2023.020,cannot be utilized to punish Plaintiff Isgrig’s or Bassett’s misconduct in this regard.  See Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2013), pp. 8K-1-8K-2, [8:1757]-[8:1764].

However, in Argame, supra, the plaintiff in a personal injury case wholly failed to respond to defendant’s properly served requests for statement of damages.  In addressing plaintiff’s behavior, the Fourth District Court of Appeal stated that, under such circumstances, “the court would have been justified in requiring [plaintiff] (or more appropriately her counsel) to reimburse defendants for costs incurred” in making a motion to compel this information.  Id. at 619, fn.3.  The court reasoned that defendant’s counsel “should not have been placed in a position where they were obligated to make a motion to obtain information to which they were lawfully entitled.”  Id.

But sanctions cannot be imposed here.  The discovery statutes and case law require specificity in the calculation of attorney’s fees.[5]  Because Defendant ARS’s request for sanctions is undifferentiated between a motion to compel Plaintiff Isgrig to provide discovery responses and the motion to compel Plaintiff Isgrig to provide a response to the request for statement of damages, the Court will not award any sanctions.

Plaintiff Isgrig is to serve a code compliant response to Defendant ARS’s request for a statement of damages within 20 days of the date of the filing of this Order.

Order

The motion of Defendant ARS to compel Plaintiff Isgrig to respond to Defendant ARS’s request for production of documents, set one, and to form interrogatories, set one, is GRANTED.  Plaintiff Isgrig is to provide code compliant responses within 20 days of the date of the filing of this Order.  All objections are deemed waived.  The request for sanctions is DENIED.

 

 

________________­­­____________ DATED:  15 August 2014

_________________________­­­________________________ 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] “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).

[3] See Leach v. Superior Ct. (3d Dist. 1980) 111 Cal. App. 3d 902, 906 (if no response has been made to interrogatories within the statutorily permitted time, the meet and confer rule “does not come into play, and compliance therewith is not prerequisite to a motion to compel answers”); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2d Dist. 2007) 148 Cal. App. 4th 390 (Emphasis sic) (“unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a ‘meet and confer’ requirement”).  See also Code Civ. Proc. §§ 2030.290(b), 2031.300(b) (no mention of a requirement to meet and confer).  Cf. Code Civ. Proc. §§ 2030.300(b), 2031.310(b)(2).  That being said, even in the absence of a meet and confer requirement, 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. (2d Dist. 1982) 134 Cal. App. 3d 285, 289.

[4] The Court suggests the proper procedure would be to put the following language in the notice of the motion and in the memorandum of points and authorities: “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) 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.”

[5]See Code of Civil Procedure, § 2023.040 (“The notice of motion shall be . . . . accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” A claim for attorneys fees should state the hourly rate multiplied by the number of hours spent.  See also Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132-1133.