Case Name: Lopez, et al. v. Gilbane Building Company, et al.
Case No.: 2015-1-CV-284269
This is a wrongful death case brought by plaintiffs Manuel Gonzalez Lopez, Leonel Gonzalez Lopez and Angela Gonzalez Bailon (collectively “Plaintiffs”) against defendant Gilbane Building Company (“Gilbane”) and nominal defendants Isidro Nuno, Jr., and Luzia Nuno. On August 13, 2013, Magda Gonzalez, Plaintiffs’ and nominal defendants’ mother, was struck and killed by a front end loader as it was backing up on the San Jose City College campus. (Def’s opposition, at pp. 1:27-2:3.) At that time, Gilbane supervised all construction on the campus. (Id. at p. 1:27-28.) Plaintiffs seek recovery for Gilbane’s negligence.

Plaintiffs move to compel further responses to request for production of documents numbers (“RPDs”) 18-50 of Set Four, RPDs 52-57, 59-64, 66-71, 73-78, 80-85, 87-92, 94-99, 101-106, 108-113, 115-120, and 122-127 of Set Five.

On January 31, 2017, the Court adopted its tentative ruling to continue the hearing on the motions to compel further responses regarding Sets Four and Five. After detailing the communications between parties’ counsel, and the parties’ assertions regarding meet and confer efforts, the Court’s order noted that “Plaintiffs do not appear to have meaningfully attempted to meet and confer.” The Court ordered the parties “to meet and confer to see if a resolution can be had without further requiring the Court’s intervention… [and i]n meeting and conferring, the parties should explicitly discuss what language is needed to satisfy the statutory requirements of Code of Civil procedure sections 2031.220 and 2031.230… [and] should also discuss Gilbane’s supplemental response and what effect, if any, it fulfilled Gilbane’s responsibilities to produce documents.”

On January 31, 2017, Plaintiffs’ counsel sent a letter attaching a proposed stipulation; however, the letter did not discuss the contents of the proposed stipulation. The proposed stipulation sought Gilbane’s concession that Plaintiffs’ motion to compel as to Set Four be granted, and that Gilbane would serve verified, further written responses without objection by February 10, 2017 by overnight delivery including certain language to conform to Code of Civil Procedure sections 2031.220 and 2031.230. On February 2, 2017, Plaintiffs’ counsel sent another letter, appending a nearly identical proposed stipulation regarding Set Five. The February 2, 2017 letter again did not discuss the contents of the proposed stipulation. On February 6, 2017, Gilbane’s counsel replied to both letters, indicating its belief that it has attempted to comply with Plaintiffs’ RPDs, and agreed to serve further supplemental responses to Sets Four and Five. On February 7, 2017, Plaintiffs received the supplemental responses to Sets Four and Five. On February 14, 2017, Plaintiffs’ counsel complained that Gilbane’s counsel had not responded to the proposals, and asserted that the further supplemental responses fail to set forth language to conform to Code of Civil Procedure sections 2031.220 and 2031.230. On February 20, 2017, Gilbane’s counsel sent a letter to Plaintiffs’ counsel addressing each of the points of the prior letter, indicating that its further supplemental responses would moot the motion, and additionally offering “to notate Bates Labels for documents which were responsive to the requests where Gilbane had an ability to respond.” On February 24, 2017, Plaintiffs’ counsel indicated that the responses were not moot, and asserted that Gilbane’s failure to accept their proposed orders to grant their motions to compel somehow violated the Court’s January 31, 2017 order to meet and confer.

Both parties have sought monetary sanctions against each other and their counsel.

The motions to compel further responses to Sets Four and Five are moot.

Plaintiffs move to compel further responses to the initial responses provided on November 4 and November 8, 2016. Plaintiffs received such further responses on February 6, 2017. Plaintiffs complain that the “new Supplemental Responses… still do not comply with Sections 2031.220 and 2031.230.” That is of no import as to whether the motion is moot. Plaintiffs moved to compel further responses; they received further responses. The adequacy of the further responses is not the subject of the instant motions. The motions to compel further responses to RPDs Sets Four and Five are OFF CALENDAR as MOOT.

Propriety of communications between counsel

On January 31, 2017 and February 2, 2017, Plaintiffs attempted to begin the meet and confer process by sending a brief letter to counsel for Gilbane, attaching stipulations for proposed orders to grant the motions. These letters did not themselves make any reasonable and good faith attempt to informally resolve each issue presented by the motions. (See Code Civ. Proc. § 2016.040.) These letters do not demonstrate an adequate attempt to meet and confer.

Regardless, counsel for Gilbane responded on February 6, 2017, indicating that it would provide further responses. Indeed, such further responses were served on February 6, 2017. As counsel for Gilbane suggested, this should have resolved the issues that were the subject of the motions to compel further responses; instead, however, Plaintiffs’ counsel continued to insist on their proposed stipulations on the now moot motions. Plaintiffs concluded their February 14, 2017 letter by requesting the identification of documents by Bates Stamp Numbers and a request for a further response that makes it clear which documents have been produced for which document demands. In response, counsel for Gilbane agreed to amend the responses to notate Bates Labels for documents which were responsive to requests where Gilbane had an ability to respond.

In response to that offer, Plaintiffs’ counsel began the February 24, 2017 letter stating that he was “shocked and dismayed,” asserting that “Gilbane has violated the Civil Discovery Act” and “has followed a deliberate litigation strategy of giving less discovery than is required by the C.C.P, thus forcing Plaintiffs to comply with the mandatory ‘meet and confer’ statute, but during that process, offering less than required by the statute as a purported ‘resolution’ of the Gilbane-created dispute.” Plaintiffs’ counsel also contended that “nothing is ‘moot’ about Plaintiffs’ pending Motions… [and t]he reason my February 14 ‘meet and confer’ letter focused on Gilbane’s Amended Responses is because the Court Order (01/30/2017) told me to do so.” Plaintiffs’ counsel concluded the letter by demanding that Gilbane “explain why you will not stipulate to my proposed Orders.”

Plaintiffs’ counsel should zealously advocate for his client. However, the Santa Clara County Bar Association Code of Professionalism requires that lawyers be civil, courteous, and accurate in communicating with adversaries. (See Santa Clara County Bar Association Code of Professionalism, § 8 (“Communications with Adversaries”); see also Santa Clara County Bar Association Code of Professionalism, § 2 (stating that “[a] lawyer should work to achieve the client’s lawful and meritorious objectives expeditiously and as economically as possible in a civil and professional manner”).) Here, the presented communications do not provide a basis for the hostility and unreasonableness displayed by Plaintiffs’ counsel. Plaintiffs’ counsel is admonished for a lack of civility in interacting with opposing counsel.

Moreover, the Santa Clara County Bar Association Code of Professionalism requires that “[a] lawyer should conduct discovery in a manner designed to ensure the timely, efficient, cost-effective, and just resolution of a dispute.” (Santa Clara County Bar Association Code of Professionalism, § 9 (“Discovery”).) “A lawyer should engage in a meaningful and good faith effort to resolve discovery disputes and should only bring discovery issues to the court for resolution after these efforts have been unsuccessful.” (Id.) Here, the motions were moot; and despite Gilbane’s counsel’s notice to Plaintiffs’ counsel that the motions were moot, and the Court’s January 31, 2017 order that Plaintiffs consider the import of the supplemental responses, Plaintiffs’ counsel nevertheless stubbornly contended that “contrary to Mr. Klauschie’s assertion on Page 2, nothing is ‘moot’ about the Plaintiffs’ pending Motions.” Had Plaintiffs’ counsel been less obstinate and more civil, he perhaps would have realized his error, and not wasted his and his opponent’s time. Plaintiffs’ counsel is thus admonished for not conducting discovery in a manner designed to ensure the efficient and cost-effective resolution of the instant dispute, and for failing to engage in a good faith effort to resolve the instant discovery dispute.

The Court did not authorize the filing of and has not considered the “FURTHER COMBINED SUPPLEMENTAL MEMORANDUM” filed by Plaintiffs on March 7, 2017, and notes that the same hostile accusations are reflected in this document. “A lawyer should avoid degrading the intelligence, ethics, morals, integrity, or personal behavior of the opposing party, [or] counsel … unless such matters are at issue in the proceeding.” (Santa Clara County Bar Association Code of Professionalism, § 7 (“Writings Submitted to the Court”).)

Plaintiffs’ request for monetary sanctions

In light of the above ruling, Plaintiffs’ requests for monetary sanctions in connection with the motions to compel further responses to RPDs Sets Four and Five and the motion to compel initial responses to RPDs Set Seven are DENIED. There are circumstances which make the imposition of the requested sanction unjust.

Gilbane’s request for monetary sanctions

Gilbane requests monetary sanctions in the amount of $3000 total against Plaintiffs and their counsel for their opposition to the two motions. Gilbane’s request for monetary sanctions is code-compliant. Plaintiffs’ counsel failed to reasonably and in good faith attempt to resolve the issues presented by their motions. (See Code Civ. Proc. § 2023.020 (stating that “[n]othwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable attorney’s fees incurred by anyone as a result of that conduct”).) However, inclusive in the costs listed are anticipated time and travel costs; the Court does not award anticipatory costs or travel costs when CourtCall for law and motion hearings is available. Moreover, the Court finds the amount requested as excessive. Gilbane’s request for monetary sanctions is GRANTED in the amount of $1,000 against Plaintiffs’ counsel only, whose conduct solely caused Gilbane to incur certain expenses, including attorney’s fees. Plaintiffs’ counsel shall pay the amount of $1,000.00 to counsel for Gilbane within 20 calendar days of this order.

The Court shall prepare the order.