Rizo & Contreras v. Target		CASE NO. 113CV258254
DATE: 01 August 2014	TIME: 9:00	LINE NUMBER: 16

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 31 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 01 August 2014, the motion to compel answers to Judicial Form and Special Interrogatories and Responses to Request for Production of Documents and for monetary sanctions by the Defendant was argued and submitted.[1][s1]

Also, Defendant submitted a petition to order response to request for statement of damages and sanctions as to Plaintiffs and Plaintiffs’ attorney.

Defendants did not file formal opposition to the motion.[2]

I.  Statement of Facts

The Plaintiffs, Maria Rizo and Juan Contreras, filed a negligence complaint alleging a foreign substance on the floor at a Target Store caused a slip and fall incident on 16 December 2011.  Plaintiff claims include loss of consortium, personal injury and damages.  Their complaint was filed on 26 December 2013 and served to the Defendants by personal service on 10 March 2014.

Defendant filed an answer on 7 April 2014 and served the Plaintiffs by US Mail the same day.

II.  Discovery Dispute

On 7 April 2014, Defendants served the counsel for the Plaintiffs by US Mail:

• Form Interrogatories to Plaintiff Juan Contreras, Set One;
• Form Interrogatories to Plaintiff Maria Rizo, Set One;
• Special Interrogatories to Plaintiff Maria Rizo, Set One;
• Request for Production of Documents to Maria Rizo and Juan Contreras, Set One;

Additionally, on the same day by US Mail, Defendant served a Request for Statement of Damages to be filed and served within 15 days of the notice.

According to the declaration of Gail Trabish, attorney for Defendant, Plaintiffs did not timely respond to the discovery requests. (Decl. Trabish 2)

On 22 May 2014, Defendant’s counsel sent a meet-and-confer letter to Richard Staskus, attorney for the Plaintiffs, seeking verified responses to Judicial Form and Special Interrogatories, Request for Production of Documents and Request for Statement of Damages.  Defendant’s requested compliance within 10 days, and if no responses were received by 02 June 2014, Defendant’s would file a motion to compel.

To date, no answers have been received and plaintiff’s attorney has not responded to the meet and confer letter nor sought any extension (Decl. Trabish 2).

Both the pending motion and the petition were filed 03 June 2014 and served by US Mail to Plaintiff the same day.

III.  Analysis

1. A.     Motion to Compel Answers to Judicial Form and Special Interrogatories and Responses to Request for Production of Documents

Discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010 (a).)  Information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.  (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

The responses to interrogatories and requests for production are due within 30 days from the date the requests were served.  Code Civ. Proc. § 2030.260(a) (Interrogatories) and Code Civ. Proc. § 2031.260(a) (Requests for Production).

To prevail on its motion, a party needs to show is 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. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)

Moreover, if a party to whom interrogatories, document production requests, and request for admissions are directed fails to serve timely responses, that party waives any right to object to the requests, including ones based on privilege or the protection of attorney work product. (CCP §§ 2030.290(a), 2031.300(a); 2033.280(a).)

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.)

If a party fails to timely respond to requests for discovery, the propounding party may seek an order compelling the responding party to responses. Code of Civil Procedure §§ 2030.290(b) (interrogatories) and Code of Civil Procedure §§ 2031.300(b) (Request for Production).

Here, although the Defendants have cited to the correct authority to claim their right to discovery in 2017.010, they do not cite to the authority to compel the requests for discovery.  Nonetheless, the Defendant has met its burden to compel responses.  They have properly served the discovery request on 07 April 2014 to the Plaintiffs.  As of 12 May 2014, the deadline for timely response plus five days for mail service, there was no answer to the requests served by the Plaintiffs to the Defendant.  Defendant even attempted to meet-and-confer via a letter on 22 May 2014.

Accordingly, the motion of Defendant to Compel Answers to Judicial Form and Special Interrogatories and Responses to Request for Production of Documents is granted.  Plaintiffs are to provide code compliant responses without objections within 20 days of the date of the filing of this Order.

II. Petition to Order Response to Request for Statement of Damages and Sanctions

Code of Civil Procedure Section 425.11(b) provides:

When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days. In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.

Here, the Defendant served by US Mail on 07 April 2014 the request for the statement of damages.  On 22 May 2014, Defendant’s sent a meet-and-confer letter to the Plaintiff asking for a response to the Request for Statement of Damages.  According to Defendant attorney’s declaration in support of the petition, Plaintiffs have not responded.  Defendant’s filed a petition with the Court to compel a response on 03 June 2014.

Accordingly, the Court orders that the Plaintiffs provide a response to the Request for Statement of Damages within 15 days of this order.

1. B.     Monetary Sanctions

Plaintiff makes a request for monetary 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.”  See Rule of Court 2.30.

The Defendant’s cite Code of Civil Procedure Section 2030.300 and 2031.310 to justify sanctions.  However, these section concern orders to compel further responses, which is not applicable here.  The correct authority would have been 2030.290 (c) and 2031.300(c), respectively.

Additionally, concerning the monetary sanction demand, Responding Parties has not unsuccessfully opposed the Defendant’s motion. (Code Civ. Proc. § 2030.290; 2031.300). Therefore, any reliance on §§ 2030.290 and 2031.300 for monetary sanctions is inapplicable in this case because the Responding Parties have not unsuccessfully opposed the Plaintiff’s motion. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where 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.

The Court suggests the proper procedure would be to put the following language in the notice of the motion:

“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.”[3]

Furthermore, monetary sanctions were requested within the Petition to Order Response to Request for Statement of Damages and Sanctions.  Defendant cites no authority for this sanction.

Accordingly, monetary sanctions are DENIED.

 

 

 

 

 

 

 

 

 

IV.  Order

The motion to compel Plaintiffs to respond to Judicial Form and Special Interrogatories and Responses to Request for Production of Documents is GRANTED.  Plaintiffs are to provide code compliant responses without objections within 20 days of the date of the filing of this Order.

The Court orders that Plaintiff provide a response to the Request for Statement of Damages within 15 days of this order.

The request for monetary sanctions is DENIED.

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara