McFarland v. Church et al.		CASE NO. 114CV261581
DATE: 24 October 2014	TIME: 9:00	LINE NUMBER: 11

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 23 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 24 October 2014, the motion of Defendants to

• Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 2.8, 6.1-6.7, 8.5-8.8, 11.1, 12.1-12.7, 17.1, 50.1-50.6
• Compel Responses to Defendants’ Special Interrogatories, Set One and Set Two
• Request Monetary Sanctions

 was argued and submitted.

Plaintiff did not file formal opposition to the motion.[1]

1. Statement of Facts.

This is a breach of contract action in which Plaintiff seeks to recover $3,750,000.00 plus interest based upon an alleged oral settlement made by members and pastors of the Seventh-day Adventist Church on behalf of their Church.  The settlement in question was an oral promise to pay Plaintiff $3,750,000.00 in return for Plaintiff’s promise to not litigate a claim for false imprisonment.

1. Discovery Dispute.

On 30 May 2014, Defendants served on Plaintiff Defendants’ Form Interrogatories, Set One, Special Interrogatories, Set One and Set Two, Requests for Admissions, Set One, and Request for Production of Documents, Set One.

On 8 July 2014, Defendants sent a letter to Plaintiff requesting discovery responses.  Plaintiff responded on 12 July 2014, stating Plaintiff had requested an extension of time on 11 June 2014.  Defendant’s never received that request for an extension, but agreed to an extension until 30 July 2014 regardless.

On 31 July 2014, Plaintiff provided incomplete responses to Defendants’ Form Interrogatories, Set One.  Plaintiff also provided a 1 page response to Defendants’ Special Interrogatories, Set One.  The single page appears to be the first page of a longer response, but the rest of the response is missing.

On 2 September 2014, Defendants informed Plaintiff that Plaintiff had failed to provide adequate responses to discovery, and Defendants would file a motion to compel if adequate responses were not received in 7 days.

As of 24 September 2014, Plaintiff has not responded.  Therefore, on 25 September 2014, Defendants filed these motions to compel responses.

III.     Analysis.

1. Meet and Confer

A code-compliant attempt to meet and confer is an explicit prerequisite in many situations including: compelling further responses to interrogatories (Code Civ. Proc. § 2030.300(b)); compelling further responses to inspection of documents (Code Civ. Proc. § 2031.310(b)); compelling further responses to requests for admissions (Code Civ. Proc. § 2033.290(b)).  Under California Code of Civil Procedure § 2016.040, “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  The failure to attempt to meet and confer where required is an explicitly named misuse of the discovery process. (See Code Civ. Pro. § 2023.010(i)).

Here, Defendants have shown a sufficient attempt to meet and confer.

2. Defendants’ Motion to Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 2.8, 6.1-6.7, 8.5-8.8, 11.1, 12.1-12.7, 17.1, 50.1-50.6

Defendants motion to compel further responses to Defendants’ Form Interrogatories, Set One.  In support of the motion, Defendants cite California Code of Civil Procedure § 2030.290(b).

After receiving responses to interrogatories, the propounding party may move for an order compelling further responses if the propounding party deems that any of the following apply: (1)  An answer to a particular interrogatory is evasive or incomplete. (2)  An exercise of the option to produce documents is unwarranted or the required specification of those documents is inadequate.(3)  An objection to an interrogatory is without merit or too general.  (CCP, § 2030.300, subd. (a)(1) – (3).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection. (See Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255, citing Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221.)

Here, Defendants request is not code compliant.  Defendants have titled their motion as a “Motion for order compelling responses to form interrogatories…”  However, since Plaintiff has already answered Defendants’ Form Interrogatories, Set One, what Defendants actually request is an order compelling further responses.[2]  Even though Plaintiff’s response is inadequate, it is not so incomplete that it can be treated as a non-response.  Therefore, Defendants’ reliance on Cal. Civ. Pro. § 2030.290(b) is improper.  The correct section to cite would be § 2030.300.

However, Defendant does include a separate statement and a meet and confer declaration, which are requirements for a motion to compel further responses, but not required for a motion compel responses.  Furthermore, Plaintiff’s responses are inadequate, and Defendants are entitled to complete responses to their discovery requests.  While Defendants technically do not cite the correct section to compel further responses, it is well established that California discovery should be construed in favor of discovery.

1. Form Interrogatories, Set One, No. 2.8

Form Interrogatory No. 2.8 asks if Plaintiff has ever been convicted of a felony, and if yes, asks for certain details.  Plaintiff initially responded with yes, and indicated that details such as cases numbers and dates will be provided as soon as Plaintiff has them.  However, Plaintiff has not yet provided Defendants with those case numbers and dates.

Therefore, the motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, No. 2.8 is GRANTED.  Plaintiff shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

2. Form Interrogatories, Set One, Nos. 6.1-6.7, 11.1

Form Interrogatories Nos. 6.1-6.7 and 11.1 regard interrogatories where Plaintiff answered yes to the first interrogatory, or portion of the interrogatory, but failed to respond the rest of the series of interrogatories.  For instance, Plaintiff answered yes to the question “Do you attribute any physical, mental, or emotional injuries to the incident” but failed to answer the following interrogatories 6.2-6.7, which asked for details regarding those injuries.

Therefore, the motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 6.1-6.7 and 11.1 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

3. Form Interrogatories, Set One, Nos. 8.5-8.8

Form Interrogatories, Set One, Nos. 8.5-8.8 ask questions regarding Plaintiff’s employment, such as when Plaintiff returned to work, and the total income lost as a result of the incident.  Plaintiff objected to these questions on the basis that the contract in dispute does not go to the question of employment.  Defendants’ cite Plaintiff’s previous responses to related questions 8.1-8.4 as reasons for why Plaintiff should answer questions 8.5-8.8.

Plaintiff’s previous responses do not, by themselves, show relevancy.  However, in Plaintiff’s complaint, plaintiff alleges the $3,750,000 in question was compensation for all damages suffered between 4 March 2006 and 21 October 2012.  Furthermore, in Plaintiff’s Exhibit 19-21, page 2, Plaintiff makes reference to a demand for $277,000.00 in lost wages.  Unless Plaintiff wishes to testify otherwise, it is likely that such a sum was included in the alleged $3,750,000.00 oral contract.

Therefore, the motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 8.5-8.8 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

4. Form Interrogatories, Set One, Nos. 12.1-12.7

Form Interrogatories 12.1-12.7 ask for information about witnesses and evidence regarding the incident that Plaintiff may have access to.  Plaintiff stated Plaintiff will respond the questions if the ‘incident’ the questions asks about is clarified.  However, ‘incident’ is defined in the beginning of the Form Interrogatories, Set One, and all of Plaintiff’s previous answers to the Form Interrogatories, Set One, have been based on this definition of ‘incident.’  There is no need to clarify the definition of ‘incident.’

Therefore, the motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 12.1-12.7 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

5. Form Interrogatories, Set One, No. 17.1

Form Interrogatory 17.1 asks if Plaintiff’s response to each request for admission is an unqualified admission.  Plaintiff responded yes to interrogatory 17.1, but many of Plaintiff’s subsequent admission were in fact qualified, or denials.  Plaintiff’s response appears to be in error, and should be corrected.

Therefore, the motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, No. 17.1 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

6. Form Interrogatories, Set One, Nos. 50.1-50.6

Form Interrogatories Nos. 50.1-50.6 relate to the existence and breach of a contract related to the ‘incident.’  Plaintiff provided no responses for questions 50.1-50.6.  However, the existence and breach of a contract is the central claim of Plaintiff’s case, and questions relating to that claim are extremely relevant.  Plaintiff must answer Form Interrogatories, Set One, Nos. 50.1-50.6.

Therefore, the motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 50.1-50.6 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

1. Defendants’ Motion to Compel Responses to Defendants’ Special Interrogatories, Set One and Set Two

Defendants motion to compel responses to Defendants’ Special Interrogatories, Set One and Set Two.  In support of the motion, Defendants cite California Code of Civil Procedure § 2030.290(b).

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).)

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).) 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).)

Defendant’s request is code-compliant.  Defendant provided proof of service, the deadline for responses is past, and Plaintiff has not timely responded. While Plaintiff sent Defendants a 1 page response, that response appears to be the first few lines of a much larger document.  Although this could be an innocent error, Plaintiff has not communicated further with Defendants on the issue.  Defendants properly cite Code Civ. Proc. § 2030.290(b) in support of their motion.

Therefore, the motion of Defendants to Compel Responses to Defendants’ Special Interrogatories, Set One and Set Two is GRANTED.  Plaintiff shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

1. Sanctions

Defendants’ makes a request for monetary sanctions.  The request is not code-compliant.  Code of Civil Procedure, § 2023.040.[3]  In support of the request for sanctions, Defendants cite Code of Civil Procedure, §§ 2023.010(d)(f)(h), 2023.030(a), and 2030.290(c)

However, 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. § 2030.300(d) (Imposing monetary sanctions for a motion to compel further responses to interrogatories).  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)).

However, 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.  Since no opposition was filed, the correct citation of authority would have been 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.”

In the future, counsel would be advised to add the following language in the notice of your 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).

Here, Defendant’s improperly cite Code Civ. Pro. § 2030.290(c) as authority for sanctions in a motion to compel further responses to interrogatories.  As mentioned above, Plaintiff has provided responses to Form Interrogatories, Set One.  Although the answers are incomplete, Defendants’ motion should be a motion to compel further responses.

Furthermore, Plaintiff has not unsuccessfully opposed Defendants’ motions. (Code Civ. Proc. §§ 2030.290(c), 2030.300(d).) Therefore, reliance on §§ 2030.290(c) and 2030.300(d) for monetary sanctions is inapplicable in this case because Plaintiff has not unsuccessfully opposed Defendants’ motions to compel responses, and compel further responses. 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.

Parties are reminded that in determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49).  Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551).  Prospective costs, such as future travel time, are not appropriate unless Plaintiff filed opposition papers or an appearance at the hearing was required.

Here, Defendants note the time spent, but do not include a specific hourly rate.  Instead, Defendants merely refer to “a reasonable rate per hour.”  While the Court can do some simple math to reach Defendants’ rate of $230 an hour, Defendants’ fail to provide such a number for either of their requests for monetary sanctions (Defendants’ Motion to Compel Further Responses to Form Interrogatories, Set One, Exhibit E, and Defendants’ Motion to Compel Responses to Defendants’ Special Interrogatories, Set One and Set Two, Exhibit G).  Defendants also ask for a total of 7.0 hours in prospective costs, and 2.6 hours for time spent in an attempt to meet and confer.  It is worth noting that these costs also appear to be duplicated on both of Defendants’ motions.

Therefore, Defendants’ request for monetary sanctions in the amount of $2528.00 in relation to Defendants’ Motion to Compel Further Responses to Form Interrogatories, Set One and $1884 in relation to Defendants’ Motion to Compel Responses to Defendants’ Special Interrogatories, Set One and Set Two is DENIED. [4]

1. Order.

The motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, No. 2.8 is GRANTED.  Plaintiff shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

The motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 6.1-6.7 and 11.1 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

The motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 8.5-8.8 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

The motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 12.1-12.7 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

The motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, No. 17.1 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

The motion of Defendants to Compel Further Responses to Defendants’ Form Interrogatories, Set One, Nos. 50.1-50.6 is GRANTED.  Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

The motion of Defendants to Compel Responses to Defendants’ Special Interrogatories, Set One and Set Two is GRANTED.  Plaintiff shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

Defendants’ request for monetary sanctions in the amount of $2528.00 in relation to Defendants’ Motion to Compel Further Responses to Form Interrogatories, Set One and $1884 in relation to Defendants’ Motion to Compel Responses to Defendants’ Special Interrogatories, Set One and Set Two is DENIED.

 

 

________________­­­____________ DATED:

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

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] Verbis legis tenaciter inhaerendum.

[3] 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.).

[4] See “Civil Discovery Sanctions in California Courts–“The 3:10 to Discoveryville”  http://www.abtl.org/report/nc/abtlnorcalvol23no1.pdf