| Margie Luna v. Monterey Petroleum Inc., et al | CASE NO. 113CV250968 | |
| DATE: 29 August 2014 | TIME: 9:00 | LINE NUMBER: 9 |
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 28 August 2014. Please specify the issue to be contested when calling the Court and counsel.
On 29 August 2014, the motion of Defendants to compel responses to Defendants’ Request for Production, Set One, was argued and submitted.
Plaintiff filed formal opposition to the motion.Statement of Facts
The complaint in this matter was filed 9 August 2013.
Plaintiff alleges that she sustained injuries when on 20 August 2011 she slipped on some water and fell on premises owned or managed by Defendants. She injured her right arm and has incurred approximately $34,000 in medical bills.
Defendant Charan Bhandal answered the complaint on 18 February 2014. The default of Defendants Kuldeep Bhandal and thus Monteray Petroleum Inc. doing business as Monterey Shell Gas Station was entered on 28 October 2013. Although these defendants filed a motion for relief from default, it appears that the parties stipulated on 6 March 2014 to set the default aside, and they answered on 20 March 2014. Defendants are all represented by the same law firm.
Discovery Dispute
On 24 February 2014, Defendants served on Plaintiff Form Interrogatories, Set One and Request for Production of Documents, Set One. In Plaintiff’s response to Defendants’ Form Interrogatories, Set One[1] and Request for Production of Documents, Set One[2], Plaintiff indicated she was not making a wage loss claim.
On 24 March 2014, Defendants served a Notice of Deposition and Request for Production of Documents to Plaintiff, which requested all documentation supporting her wage loss claim. No objection was made by Plaintiff to this deposition notice.
On 6 June 2014, Defendants took Plaintiff’s deposition. There, Plaintiff indicated she was making a wage loss claim, the previous responses were in error, and that she will produce all documents to support her wage loss claim. Plaintiff also stated that Defendants’ Notice of Deposition and Request for Production of Documents, and Request for Production of Documents, Set One, was served to the wrong address, and Plaintiff first saw the notice at the deposition.
On 10 June 2014, Defendants requested supplemental responses to Form Interrogatory No. 8.0 regarding the wage loss claim, and all documents pertaining to the wage loss claim.
On 24 June 2014, Plaintiff responded that she was in the process of gathering wage loss records from her employer, Lockheed Martin, and would produce those records by 7 July 2014. The delay was because her employer had to go to off-site archives to obtain the documents.
On 7 July 2014, Plaintiff provided supplemental responses to Form Interrogatory No. 8.0 indicating a wage loss claim of $36,136. Plaintiff was told by employer that the employment records would take another 2 weeks to produce.
On 24 July 2014, Defendants again requested that the employment records be produced by 28 July 2014. Defendants had attempted to subpoena Plaintiff’s employer for the employment records, but her employer was uncooperative.
On 31 July 2014, Defendants filed this Motion to Compel Document Production Pursuant to Defendants’ Request for Production of Documents, Set One, and Request for Monetary Sanctions.
On 6 August 2014, Plaintiff asked Defendants to withdraw their motion to compel because many of the related documents were served on the wrong address, and because Plaintiff was keeping Defendants advised of Plaintiff’s attempts to obtain the records. Plaintiff offered an open extension to file a motion to compel should Defendants not be satisfied with Plaintiff’s responses.
On 7 August 2014, Plaintiff served a Second Amended Response to Form Interrogatories, which included documents responding to the Defendants’ requests.
On 10 August 2014, Plaintiff communicated with Defendants that Defendants’ motion to compel was unclear. Defendants filed a reply with clarification on 19 August 2014, stating that the motion was to compel answers to Defendants’ 24 February 2014 Request for Production of Documents, Set One, Request 3.
Analysis
- Motion of Defendants to compel responses to Defendants’ Request for Production, Set One[3]
Defendants motion to compel discovery responses. The request is not code-compliant. In support of the motion to compel responses, Defendants cite Code of Civil Procedure § 2031.320(a-b).[4]
To prevail on its motion, a party needs to show 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. Superior Court. (1980) 111 Cal.App.3d 902, 905-906.)
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. § 2030.290(a) (interrogatories); § 2031.300(a), §2031.320(a) (request for production of documents).
If a party to whom interrogatories or demands 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 for production).
This Court notes two issues with the present motion:
First, Defendants served the requests on the wrong address. However, it does appear that Plaintiff nonetheless acquired and was able to respond to said requests. Plaintiff made an initial, if erroneous, response well before the deadline for response passed.
Second, Defendants brought the wrong motion. Plaintiff provided a code compliant response to the request for production of documents, and therefore the proper motion should have been a motion to compel further responses to the request for production under Code of Civil Procedure, § 2031.310. Such a motion requires a separate statement pursuant to Rule of Court 3.1345. None was provided.
While this Court would be within its authority to deny the motion[5], the court has discretion, but is not required to deny a discovery motion for failure to provide a code-compliant separate statement. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)
Additionally,it has been 6 months since the original request, and 2 months since the erroneous response was noted at the deposition of Plaintiff.
To their credit of Plaintiff, she never made an issue out of this point.[6] The Court does note that on 7 August 2014, after this motion was filed, Plaintiff provided Defendants with at least some of the requested documents. Hopefully, this heralds a complete response.
Therefore, while the Courtbelieves is moot this matter is MOOT, , the parties are to meet and confer on whether any further input from this Court is necessary.
- Monetary Sanctions
While this Court feels comfortable with the proposition that both sides acted with substantial justification, this Court offers the following:
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 party’s motion must also state the applicable rule that has been violated. (Id.).
- Defendants’ Request for Monetary Sanctions
Both parties make requests for monetary sanctions.
In support of the request for sanctions, Defendant cites Code of Civil Procedure, §§ 2023.010, 2023.030, and 2030.290.
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 and thus is not self-executing. 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.
The California Code of Civil Procedure states that the Court shall impose monetary sanctions in many different situations. See Code Civ. Pro. § 2030.290(c) (Imposing monetary sanctions for a motion to compel answers to interrogatories); Code Civ. Pro. § 2031.300(c) (Imposing monetary sanctions against losing party in motion to compel response to inspection demand); Code Civ. Pro. § 2031.320(b) (Imposing monetary sanctions for failure to comply as agreed with inspection demand). However, where the Court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust” no monetary sanctions shall be imposed. (Code Civ. Proc. § 2023.030(a)). Where there are no opposition papers filed, the proper source of authority for monetary sanctions is Rule of Court 3.1348(a) as there has been no failed opposition.
Here, Defendants improperly cite Code of Civil Procedure § 2030.290 in support of a request for monetary sanctions. § 2030.310(h) is the appropriate citation for sanctions regarding a motion to compel further responses to interrogatories.
Plaintiff indicates in opposition that Plaintiff did not have possession of the requested documents, and could not have delivered them despite wishing to. Furthermore, it appears that on 7 August 2014, Plaintiff provided Defendant with at least some of the documents requested. This appears to be a situation where Plaintiff acted with substantial justification, and appears to be giving the documents to Defendants as soon as possible. The imposition of a sanction would be unjust.
Therefore, Defendants’ request for monetary sanctions is DENIED.
- Plaintiff’s Request for Monetary Sanctions
Plaintiff makes a request for monetary sanctions. In support of the request for monetary sanctions, Plaintiff cites Code of Civil Procedure §§ 2023.030(a) and 2031.320. For reasons stated previously, these two sections are inapplicable. Any requests for sanctions should have been pursuant to Code of Civil Procedure, § 2031.310(h).Plaintiff’s request for monetary sanctions is DENIED.
Order
Defendants’ motion to compel responses to Defendants’ Request for Production of Documents, Set One, Request 3 is MOOT. The parties are to meet and confer on whether any further input from this Court is necessary.
Defendants’ request for monetary sanctions is DENIED.
Plaintiff’s request for monetary sanctions is DENIED.
| ____________________________
DATED: |
_________________________________________________
HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] See Exhibit C to moving papers response to form interrogatories number 8.1, served on 27 March 2014
[2] See Exhibit D to moving papers, response to request for production of documents, number three, served on 27 March 2014.
[3] There is no issue with respect to Plaintiff’s responses to Defendants’ form interrogatories, set one.
[4] “(a) If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.
(b) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
[5] The word “must” indicates the inclusion of a separate statement is not optional or a suggestion. “The separate statement is not merely a technical requirement; it is an indispensable part of the summary judgment or adjudication process. Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties.” (United Community Church v. Garcin (1991) 231 Cal App 3d) 327, 335; Whitehead v. Habig (2008) 163 Cal App. 4th 896, 902; Magana Cathcart McCarthy v. CB Richard Ellis (2009) 174 Cal App 4th 106, 117.)
[6] Ordinarily, if an argument is not presented, it will not be considered. (Shoemaker v. County of Los Angeles (1995) 37 Cal. App. 4th 618, 634, n.17, citing Cox Cable San Diego, Inc. v. City of San Diego (1987) 188 Cal. App. 3d 952, 968.)
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