Case Name: Matilde Orozco et al vs Oscar Avina et al
Case No.: 19CV342353

Motion to compel further responses to Form Interrogatories:

On September 20, 2019, Plaintiffs filed a motion to compel further responses to Form Interrogatories—General, Set One, Interrogatory Nos. 12.2-12.3, 14.2; Special Interrogatories Set One, Nos. 1 to 5; Plaintiffs’ Requests for Admission (Set One), Request Nos. 1-19; and Plaintiffs’ Request for Production of Documents (Set One), Request Nos. 3-4, 7-9,11-12, 14, 17, 19, 23-24, 26. Defendant Sunbelt Rentals, Inc. (Sunbelt) objected to some of the discovery, at least in part, because its employee Oscar Avina was facing criminal charges related to the accident in question. Defendants filed a motion seeking a stay of the civil action that was to be heard on August 27, 2019. As it happened, the criminal prosecution was resolved shortly before the hearing, and the motion was vacated as moot

Plaintiffs demanded that Sunbelt’s responses be served within ten days. Avina’s responses were served promptly, but Sunbelt’s client representative was out of the office and on his honeymoon, and was not available to respond within Plaintiffs’ unilaterally set deadline. Plaintiffs agreed to a brief extension (from September 6 to September 12). This motion was filed on September 20, 2019 even though Sunbelt had indicated that further responses would be served soon, and in fact supplemental responses were served on October 7, after the motion was filed.

On October 16, 2019, Plaintiffs submitted an ex parte application based on a stipulation to continue the hearing date, acknowledging that although amended responses were served, few responsive documents had been produced. The Court refused to continue the hearing, as the motion that was noticed did not seek to compel production of documents in any event, only written responses to the discovery, and an entirely new motion would need to be filed. The Court concluded that a continued motion was not appropriate, and meet and confer would be required before a new motion could be filed.

If a responding party provides discovery responses prior to hearing on a motion to compel, the responding party may claim that the motion is moot and should go off calendar. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) The Sinaiko court recognized that 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, in the exercise of its discretion and based on the circumstances of the particular case. The Court agrees that the motion is moot as responses were served after the motion was filed.

Plaintiffs’ counsel conceded that the motion was moot, but requested a hearing for the Court to address sanctions.

Sanctions

Plaintiffs requests monetary sanctions of $6,410, for time spent for meet and confer, preparation of the motion, and time spent to prepare a reply. Time spent for meet and confer and anticipated expenses are not compensable, and in this case no reply is necessary.

It is true that the Court has discretion to award sanctions even if a motion to compel is mooted by subsequent service of responses to discovery before the hearing on the motion, unless circumstances make the imposition of the sanction unjust. (See Cal. Rules of Court, rule 3.1030(a) [“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though … the requested discovery was provided to the moving party after the motion was filed”]; Sinaiko Healthcare v. Pacific Healthcare, supra, 148 Cal.App.4th at pp. 404, 409.)

Here, the Court finds that the Plaintiff did not act with substantial justification and that the motion would have been unnecessary had Plaintiff accepted the offer of a brief extension to file to give Sunbelt time to communicate with the client representative who was on a honeymoon and serve supplemental responses. Instead, Plaintiffs reserved a hearing date before meet and confer had concluded, then claimed that it had to file the motion no later than September 20, 2019. Had the criminal case not resolved before the motion to stay was heard, the Court was inclined to grant that motion, at least for a period of time. This is not a case where Sunbelt completely ignored its obligations to respond to discovery, but instead responded to a significant amount of the discovery while objecting to those requests that implicated Avina’s criminal prosecution. Avina (represented by the same attorneys as Sunbelt) served supplemental responses on September 13, 2019, and it is apparent that Sunbelt’s counsel was acting in good faith. It is also apparent that filing this motion was not necessary in order to obtain Sunbelt’s responses to the discovery.

Accordingly, Plaintiff’s request for sanctions is DENIED.

Finally, the Court adopts for purposes of this case, and ORDERS all counsel to read and comply in all relevant respects with the Santa Clara County Bar Association Code of Professionalism, which has been adopted and approved by this Court. The Code of Professionalism is attached to the Local Rules of Court.