Michelle DeHerrera and Jerome Deherrera v. James L. Wood		CASE NO. 114CV259174
DATE: 10 July 2014	TIME: 9:00	LINE NUMBER: 19

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 Wednesday 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, the motion of Defendant James L. Wood II (“Defendant”), for motion to compel Plaintiffs Michelle DeHerrera and Jerome DeHerrera (“Plaintiffs”) to respond to form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one,[1] was argued and submitted.

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

I.  Statement of Facts

The facts in this complaint are not well pled.

Plaintiff Michelle DeHerrera was involved in a vehicular accident with Defendant James L. Wood II on January 27, 2012, on northbound SR 85 in San Jose, California.  Plaintiff claims that she suffered wage loss, loss of use of property, property damage, hospital and medical expenses, general damage, and loss of earning capacity.

Plaintiffs w Michelle DeHerrera and Jerome DeHerrera were involved in another motor vehicle accident with Tianna Meza on August 8, 2012 on Eastbound Stevens Creek Boulevard, near Santana Row in Santa Clara, California.

II.  Discovery Dispute

Defendant James Lee Wood II seeks to compel Plaintiffs to respond to form interrogatories, special interrogatories, and produce documents.

On 05 March 2014, Defendant served Form Interrogatories, Special Interrogatories and Requests for Production of Documents, Sets One, on Plaintiffs.

After 09 April 2013, Defendant met and conferred with Plaintiffs counsel who advised he would follow up with Plaintiffs.  Plaintiffs’ counsel was informed if responses were not sent by 30 May 2014 a motion to compel with request for sanctions would be filed.

On 30 May 2014, Defendant was informed by Plaintiffs’ counsel that Plaintiffs were not being cooperative.  Defendant sent a letter to Plaintiffs advising  of the filing of the motion to compel responses.

Defendant this motion on 06 June 2014 after no responses were received.

III.  Analysis

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.)

If a party to whom interrogatories or demand 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).

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. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.

Defendant has provided proof of service for the first set of form interrogatories, special interrogatories, and inspection demands. The deadline for the Plaintiff to respond has lapsed and the Plaintiff has not timely responded to any of Defendant’s discovery requests.

IV.  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 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)). 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 filed opposition.

However, as there was no opposition filed and Rule of Court 3.1348(a) was not cited by Plaintiff, monetary sanctions are DENIED.

V. Order

Accordingly, the motion of Defendant James L. Wood for motion to compel Plaintiffs Michelle DeHerrera and Jerome DeHerrera to respond to form interrogatories, set one, set interrogatories, set one, and request for production of documents, set one, is GRANTED.  Plaintiff is ordered to produce code-compliant responses without objections within 20 days of the date of the mailing of this Order.  The request for monetary sanctions is DENIED.