Mendoza vs. Fielding and Does 1 to 20 CASE NO. 113CV244004
DATE: 13 June May 2014 TIME: 9:00 LINE NUMBER: 7
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 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the motion of Defendant Frank Fielding (“Defendant”) to have the court compel Plaintiff Magdalena Mendoza (“Plaintiff”) to respond to Defendant’s request for production and inspection of documents , set one, to respond to form interrogatories, set one, to respond to special interrogatories, set one, for the court to deem admitted the Defendant’s request for admissions (“RFA”), and for an award of monetary sanctions was argued and submitted.

Defendants did file formal opposition to the motion.

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

I. Statement of Facts

This is personal injury case and the sole cause of action is for negligence regarding a dog bite that took place outside of a Gilroy residence on April 7, 2011. Plaintiff alleges and Defendant denies all allegations and responsibility for any damages Plaintiff has suffered as a result of the dog bite.

The Plaintiff is said to have received five stitches from the Saint Louise Hospital in Gilroy after being bitten on the lip by a dog at 8113 Solis Rancho Drive, Gilroy, CA. Defendant generally denies all allegations and any involvement in the matter. Additionally, Defendant raises nine (9) affirmative defenses.

II. Discovery Dispute

On March 11, 2014, Defendant served form interrogatories, special interrogatories, RFA and inspection demands on Plaintiff. Plaintiff had 30 days from the date the written discovery requests were first served to respond.

On April 22, 2014, having yet to receive a response from Plaintiff, Defendant filed this motion in order to compel Plaintiff to respond to Defendant’s interrogatories and inspection demands, to have the RFA deemed admitted, and to request monetary sanctions.

On June 10, 2014, Plaintiff filed an opposition to the motion to compel on the grounds that the Defendant, prior to the motion, has not attempted to meet and confer, and has not included a code compliant meet and confer declaration. Further, on June 10, 2014, the Plaintiff served Defendant with verified responses, without objection, to the Defendant’s requests and claims the motion is moot.

III. Analysis

A. Mootness

In papers filed on 9 June 2014, defense counsel pointed out that no opposition papers were served.

However, in untimely opposition papers filed the next day on 10 June 2014, Plaintiff claims to have served code compliant responses to the foregoing discovery requests.

If the responding party provides code-compliant verified discovery responses prior to the motion, the responding party may claim that the motion is moot and should thus go off calendar. In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409, the Court of Appeal recognized that, in exercise of its discretion and based on the circumstances of the particular case, the trial court is in the best position to determine whether action taken subsequent to the filing of a discovery motion renders that motion moot.

The untimely-filed opposition papers do not contain copies of the responses and so this court is not in a position to determine whether the matter is moot and thus will require either meet and confer by counsel or an appearance at the time and place of the hearing on this motion.

B. Meet And Confer

In the untimely-filed opposition papers, Plaintiff claims that “Defendant has not attempted to meet and confer. . . .” (page 1, Lines 16-18.) So j the same issue with the same lawyer and

If no response has been made to discovery requests within the time permitted by Code of Civil Procedure, the “meet and confer” rule does not come into play, and compliance therewith is not prerequisite to a motion to compel answers. See Code of Civ. Proc. § 2030.290(b); see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 404; Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 906.

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.)

C. Motion To Compel

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).

To establish that a party did not serve a timely response to interrogatories or inspection 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.

As noted above, this court is unable to determine whether this motion is moot.

C. Motion To Have RFAs Deemed Admitted

If a party to whom a request for admissions is directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for a monetary sanction. Code Civ. Proc. § 2033.280(b). It is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. Code Civ. Proc. § 2033.280(c).

Further, the party who fails to serve a timely response waives any objection to the requests, including one based on privilege or on the protection of work product. Code Civ. Proc. § 2033.280(a). The court shall order the request be deemed admitted, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is code-compliant. Code Civ. Proc. § 2033.280(c).

As noted above, this court is unable to determine whether this motion is moot.

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.

The Discovery Act provides that the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct unless the court finds that the one subject to the sanction acted with substantial justification or other circumstances make the imposition of monetary sanctions unjust. Code Civ. Proc. § 2023.030(a). A misuse of the discovery process includes but is not limited to the failure of a party to respond or to submit to an authorized method of discovery. Code Civ. Proc. § 2023.010(d).

Defendant requests an award of monetary sanctions against Defendant and her counsel in the amount of $1,290.00 pursuant to Code of Civil Procedure section 2023.030. 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.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

Next, although section 2023.020 authorizes an award of sanctions against a party or attorney for failure to satisfy a meet and confer obligation, Plaintiff did not have any such obligation in this matter.

Finally, in the caption of the notice of the motion, Defendant cites Code of Civil Procedure, §§ 2023.010 et seq., 2030.010 et seq, 2031.010 et seq., and 2033.010 et seq. as authority for the imposition of sanctions. The citations are not only inaccurate but they do not comply with the requirement that they be contained in the memorandum of points and authorities. The request for monetary sanctions is DENIED.

Order

The Court is unable to determine whether the motion is moot as a result of the asserted provision of verified code compliant responses. Council are to either meet and confer or may appear at the hearing on the motion. The request for monetary sanctions is DENIED.