Case Number: BC505043    Hearing Date: July 16, 2014    Dept: 32

CASE NAME: Luis Sanchez v. Dennis Constantino Bandy, et al.
CASE NO.: BC505043
HEARING DATE: 07/16/14
DEPARTMENT: 32
CALENDAR NO.: 1
SUBJECT: (1) Motion of Plaintiff/Cross-Defendant to Compel (1) Supplemental Responses to Form Interrogatories to Defendant Dennis Constantino Bandy (Set One); (2) Supplemental Responses to Form Interrogatories to Cross-Complainant Dennis Constantino Bandy (Set One); and (3) Supplemental Responses to Document Demands to Defendant/Cross-Complainant Dennis Constantino Bandy (Set One)
(2) Motion of Plaintiff for Sanctions against Tafoya & Garcia LLP and David Garcia for Discovery Abuses re: Deposition of Defendant Eloisa Aleman
MOVING PARTY: (1)-(2) Plaintiff Luis Sanchez
RESP. PARTY: (1) Defendant and Cross-Complainant Dennis Constantino Bandy; (2) Attorney David Garcia

COURT’S TENTATIVE RULING

Motion of Plaintiff/Cross-Defendant to Compel (1) Supplemental Responses to Form Interrogatories (“FI”) to Defendant Dennis Constantino Bandy (Set One); (2) Supplemental Responses to Form Interrogatories to Cross-Complainant Dennis Constantino Bandy (Set One); and (3) Supplemental Responses to Document Demands to Defendant/Cross-Complainant Dennis Constantino Bandy (Set One) GRANTED. Monetary sanctions GRANTED in the reduced amount of $2980 against Defendant and Cross-Complainant Bandy and Tafoya & Garcia, LLP, jointly and severally. Defendant’s request for monetary sanctions is DENIED.

Motion of Plaintiff for Sanctions against Tafoya & Garcia LLP and David Garcia for Discovery Abuses re: Deposition of Defendant Eloisa Aleman GRANTED in the reduced amount of $1110.

ANALYSIS

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Motion to Compel Further Responses to Written Discovery

Timeliness of Opposition Brief

This motion presents a timing issue. The opposition brief was filed and served on July 3, 2014. It should have been filed and served on July 2, 2014 to be timely. (CCP § 1005(b).) However, Plaintiff has responded on the merits in reply and the court exercises its discretion to consider the late opposition.

Meet and Confer

Plaintiff submits evidence that his counsel met and conferred with Defendant’s counsel by written correspondence. (See Brito Decl. ¶¶ 9-15.) The evidence reflects that Defendant did not meaningfully respond to that meet and confer correspondence. (See Id. ¶ 14; see Garcia Decl. generally.) Accordingly, the court reaches the merits of the motion.

Timeliness of Motion

Defendant contends that the motion was not served by the 45-day deadline set by CCP §2030.300(c) and § 2031.310(c). This position lacks merit. The 45-day limit begins to run from the date of service of the statutory responses. (See Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903.) The deadline may be extended by written stipulation of the parties (See CCP § 2031.310(c)).

Here, as argued in the moving papers and reply, the motion was originally due by January 21, 2014 given the purported service of responses on December 2, 2013. However, on January 13, 2014, the parties agreed in writing to extend the deadline by 30 days. Accordingly, the motion would then be due by February 20, 2014. However, on February 17, 2014, the parties agreed to extend the deadline by another two weeks. Accordingly, the deadline to file the motion would be two weeks from February 20, 2014, or March 6, 2014, the day the motion was filed. (See Mot. 6; see Brito Decl. ¶¶ 17-18, Exh. 3-4.)

Waiver of Objections

By failing to timely respond to interrogatories, the responding party waives any objection to the interrogatories. (CCP § 2030.290(a).) If a party fails to timely respond to a request for production and inspection of documents, “[t]he party to whom the inspection demand is directed waives any objection to the demand….” (CCP § 2031.300(a).)
The discovery was served on November 4, 2013. (Britto Decl. ¶ 3.) Plaintiff contends that his counsel did not receive the discovery responses until December 23, 2013, even though the proof of service showed that the responses were served on December 2, 2013. (Brito Decl. ¶¶ 3-5.) In opposition, Defendant’s counsel states under penalty of perjury that the responses were served December 2, 2013. He also authenticates copies of Defendant’s verifications dated December 2, 2013. (Garcia Decl. ¶ 2.) Although the evidence is in dispute, the court resolves the dispute in favor of Defendant. Neither party has submitted copies of the responses or the proof of service. The court therefore must assume the proof of service is validly executed. Plaintiff did not submit the envelope in which the responses were transmitted to show that the envelope did not include a date of mailing. (Brito Decl. ¶ 5.) Plaintiff, who has the burden on this issue, has not submitted sufficient evidence to rebut the proof of service. Also, given the prejudice to Defendant of waiver of objections and that the evidence is close on this issue, the court construes the evidence in favor of Defendant. Accordingly, the court finds that Defendant did not waive objections.

Verifications

Plaintiff argues that Defendant did not serve verifications to the discovery. However, Plaintiff did not authenticate copies of the supposedly unverified responses. Moreover, in opposition, Defendant’s counsel authenticates copies of Defendant’s verifications dated December 2, 2013. (Garcia Decl. ¶ 2, Exh. 1.) Because Plaintiff did not submit or authenticate the responses, Plaintiff did not meet his moving burden of showing the responses were not verified. Moreover, insofar as there were only objections, verifications by Defendant’s counsel would be sufficient. (CCP § 2031.250(a).)

The Issue of Supplemental Responses

Defendant argued in opposition that he served supplemental responses after the motion was filed, thus mooting the motion. Although Defendant’s counsel states in his declaration that supplemental responses were served, he has not attached or authenticated copies of the supplemental responses. (Garcia Decl. ¶ 4.) In reply, Plaintiff’s counsel states that no supplemental responses have been received. (Brito Suppl. Decl. ¶ 11.) Thus, there is a clear dispute on an issue that is easily verifiable. As one would have expected Defendant to submit the supplemental responses if they had indeed been served, the court finds the opposition evidence unconvincing on this issue. Moreover, the court would have discretion to consider the motion, including the issue of monetary sanctions, under the circumstances. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-411.) Thus, the motion would not be moot in any event.

Form Interrogatories (Set One) Served on Defendant Bandy

Form Interrogatories are approved by the Judicial Council and deal with non-controversial matters, including such items as a party’s date of birth and educational background. The Form Interrogatories (FIs) provide an economical way for a party to obtain basic information. That notwithstanding, Defendant asserted the same objections to all of the FLs at issue. Defendant objected that the FIs are irrelevant; contain improper definitions; are not reasonably particularized; are vague and ambiguous; unduly burdensome; infringe on rights of privacy; and seek information protected by the attorney-client and work product privileges. Subject to these objections, Defendant stated that “should Plaintiff reasonably particularize this request to any category reasonably calculated to lead to the discovery of admissible evidence that does not violate Defendant’s privacy rights, Defendant will consider that request and determine with [sic] any further response is required.”

Defendant has the burden of justifying the objections to the FIs. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221.) Objecting parties must file evidence detailing the amount of work involved, in order to support objections based upon burden and oppression. (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 417.)

The responses to the FIs contain boilerplate objections, and the fact that Defendant asserted the same response as to all FIs further suggests that the objections lack merit. Although Defendant states he will provide further responses if Plaintiff states the FIs with more particularity, that response is essentially an objection that the FIs are vague and not reasonably particularized.

Defendant has not attempted to justify his objections in opposition. By claiming he served supplemental responses, Defendant has in effect conceded the deficiencies in his original responses. Defendant has submitted no evidence of burden or oppression. Defendant has also submitted no evidence to suggest that the FIs involve rights of privacy or attorney client or work product privileges. He also asserts no evidence that the FIs are vague or ambiguous. Accordingly, the motion is GRANTED as to all FIs at issue in Plaintiff’s separate statement.

Form Interrogatories (Set One) Served on Cross-Complainant Bandy

Defendant provided the same responses and objections discussed above in response to the FIs served on him with regard to the cross-complaint. For the reasons stated above, Defendant has not justified such objections. The motion is GRANTED as to all FIs at issue in Plaintiff’s separate statement.

Requests for Production (Set One) Served on Defendant/Cross-Complainant Bandy

The moving party on a motion to compel further responses to RFPs must submit “specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP § 2031.310(b)(1).) If the moving party has shown good cause for the RFPs, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.)

Defendant asserted the same objections to all of the RFPs at issue. (See Mot. 4; Brito Decl. ¶ 7.) Defendant objected that the RFPs are irrelevant; contain improper definitions; are not reasonably particularized; are vague and ambiguous; unduly burdensome and overbroad; infringe on rights of privacy; and seek information protected by the attorney-client and work product privileges.

As discussed in Plaintiff’s separate statement with regard to each RFP, Plaintiff has made a sufficient showing that the RFPs are relevant to the complaint or cross-complaint and that there is good cause for production. For instance, RFP 1 seeks all documents pertaining to the agreement between Plaintiff and Bandy that is attached to the complaint and underlies the allegations in the complaint. Other RFPs seek documents that support allegations made by Defendant in his cross-complaint. (See, e.g., RFP 19.) Because these RFPs seek documents directly related to the pleadings, Plaintiff has made a sufficient showing of good cause.

For the reasons stated above as to the FIs, Defendant has not justified his objections to the RFPs. By claiming he served supplemental responses, Defendant has conceded the deficiencies in his original responses. Defendant has submitted no evidence of burden or oppression. Defendant has also submitted no evidence to suggest that the RFPs involve rights of privacy or attorney client or work product privileges. He also asserts no evidence that the RFPs are vague or ambiguous. Accordingly, the motion is GRANTED as to all RFPs at issue in Plaintiff’s separate statement.

Monetary Sanctions

In the discovery context, sanctions serve the function of shifting the cost of a motion to the party causing the unnecessary expense unless that party’s position is substantially justified or the facts otherwise argue against sanctions. Monetary sanctions are warranted against Defendant and his counsel, Tafoya & Garcia, LLP for providing meritless objections to the FIs and RFPs; failing to meet and confer; and failing to support the contention in opposition that supplemental responses were served. Defendant also relied on an unpersuasive argument that the motion is untimely. Sanctions are warranted against Defendant’s counsel as well because the discovery abuse consisted mostly of matters within counsel’s control, including improper objections and insufficient meet and confer.)

Plaintiff’s request for $7,240 in sanctions is excessive in light of the nature and scope of the motion and also because Plaintiff asserted some unpersuasive arguments (see discussion above regarding waiver of objections and verifications). Also, Plaintiff is not entitled to sanctions for his meet and confer efforts. The court reduces the requested amount to $2,980 (8 hours x $350/hour + $180 filing fee.)

Because Defendant did not prevail on the motion, Defendant’s request for monetary sanctions is DENIED.

Motion for Sanctions relating to Defendant Aleman’s deposition

Untimely Opposition – Motion for Sanctions

This motion also presents issues on the timely filling of documents relating to the motion. . The declaration of David Garcia was filed and served on July 11, 2014. The opposition should have been served at least 9 court days prior to the hearing, not including additional time for service. (CCP §1005(b).) Therefore, the opposition was untimely for a July 16, 2014 hearing date. However, the court exercises its discretion to consider this fling.

Merits of Motion on the Deposition

CCP § 2023.010 provides, in relevant part, that “misuses of the discovery process include, but are not limited to, the following … (c) employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (d) Failing to respond or to submit to an authorized method of discovery.”

Plaintiff requests monetary sanctions against attorney David Garcia and his firm, Tafoya and Garcia LLP, jointly and severally, based on Garcia’s late appearance at the deposition of Defendant Eloisa Aleman on June 19, 2014 and his failure to inform Plaintiff’s counsel that an interpreter would be required for the deposition. Plaintiff submits evidence that the deposition was noticed for 10 am on June 19, 2014, and that Garcia did not appear until 10:45 am. Although the deposition notice requested that Defendant notify Plaintiff of a need for an interpreter “immediately,” Garcia did not do so until arriving at the deposition. (See Brito Decl. ¶¶ 3-6.) As a result, the deposition did not start until noon. (Id. ¶ 7.)

Garcia has apparently not opposed the motion as to his own conduct. Garcia contends that Aleman should not be sanctioned because she timely appeared for the deposition. However, the motion does not request sanctions against Defendant Aleman. The court also agrees that sanctions are not warranted against Aleman based on her timely appearance.

Although unclear, it seems Garcia also argues in his untimely opposition that sanctions are not warranted against him because Aleman is conversant in English and Plaintiff’s counsel could have started the deposition in English for the questions she understood. This argument is unpersuasive because it is undisputed that Aleman needed an interpreter to proceed with the deposition, and, therefore, Plaintiff’s counsel could not be expected to go forward without an interpreter.

As noted above, In a situation such as this, the question of sanctions is really a matter of cost shifting, i.e., why should one party have to incur costs as a result of the other party’s improper conduct. Here, if the only issue were the late appearance, sanctions would not be warranted since there is no showing that it was intentional. However, the failure to alert the Plaintiff to the need for an interpreter is another matter and did unnecessarily delay the deposition and thereby cause the Plaintiff needless expense. Plaintiff requests $1,850 in monetary sanctions against Garcia for the two-hour delay at the deposition, three hours associated with the instant motion, and the filing fee (5 hours x $350/hour + $60 filing fee.) The court grants sanctions in the reduced amount of $1,110, representing three hours of attorney time and the filing fee. (See Brito Decl. ¶ 9.)

The motion is GRANTED in the reduced amount of $1,110.