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 Defendants/Cross-Complainants Maimona Afzal and Naeem Afzal (“Defendants”), for motion to compel Plaintiffs Miles Hagaman and Amber Hagaman (“Plaintiffs”) to respond to form interrogatories, set one, specially prepared interrogatories, set one, and request for production of documents, set one, was argued and submitted.

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

I.  Statement of Facts

The facts in this complaint are not well pled.

Plaintiffs were involved in a vehicular accident with Defendant Maimona Afzal and Defendant Tung Nguyen on January 23, 2112, on Northbound I-280, 1000 feet south of Lawrence Expressway in Santa Clara County, CA.  Plaintiffs claim that they suffered wage loss, loss of use of property, property damage, hospital and medical expenses, general damage, loss of earning capacity, and loss of consortium.

II.  Discovery Dispute

On 14 March 2014, Defendants served Form Interrogatories, Specially Prepared Interrogatories and Requests for Production of Documents, Sets One, on Plaintiffs.

On 29 April 2014, Defendants sent a meet and confer letter to Plaintiffs requesting responses.[2]

Defendant filed this motion on 03 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, specially prepared 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, these statutes refer to the imposition of sanctions when a party “unsuccessfully makes or opposes a motion” to compel discovery responses.  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.  A moving party may anticipate a non-opposition and include the following language from Rule of Court 3.1348(a) either in the notice of the motion or in the memorandum of points and authorities:

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.

Since 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 Defendants Maimona Afzal and Naeem Afzal for motion to compel Plaintiffs Miles Hagaman and Amber Hagaman to respond to form interrogatories, set one, specially prepared 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.