Monica Gevargiz, et al v. Maria Escalara, et al CASE NO. 114CV259600
DATE: 13 June May 2014 TIME: 9:00 LINE NUMBER: 15
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 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the motion of Defendants Maria Escalara and Luz Ubario (hereinafter “Defendants”) to compel Plaintiffs Monica Gevargiz, Mardin Gevargiz and Elnour Gevargiz (hereinafter “Plaintiffs”) to provide answers to Form Interrogatories (Set one), Special Interrogatories (Set one) and Demand for Inspection (Set one) along with reasonable sanctions for attorney’s fee was argued and submitted.

Plaintiff filed a formal opposition to Motion to Compel Responses.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

Statement of Facts

The personal injury arises out of a motor vehicle accident. Plaintiffs in a motor vehicle stopped at a four-way intersection were rear ended by another motor vehicle operated by Defendants.

Discovery Dispute

On 05 March 2014, Defendants’ counsel served Form Interrogatories (Set one), Special Interrogatories (Set one) and Demand for Inspection (Set one) upon Plaintiffs’ counsel.

By 15 April 2014, Defendants’ counsel has not received any verified answers from Plaintiffs.

Defendants’ counsel met and conferred with Plaintiffs’ counsel two separate times via letters dated 15 April 2014 and 28 April 2014 informing Plaintiffs that the discovery, which included Form Interrogatories, Special Interrogatories and Demand for Inspection, were overdue.

On 12 May 2014 Defendants’ counsel filed a Motion to Compel Plaintiffs to respond to the above discovery.

On 04 June 2014 Plaintiffs’ counsel filed an opposition to Motion to Compel Response on the ground that it is moot since he purports to have served code compliant responses.

On 06 June 2014 Defendant’s filed a reply to Plaintiffs’ opposition to Defendants’ Motion to Compel discovery responses and for monetary sanctions. The reply papers contend that the motion is not moot since sanctions are warranted.

Analysis

I. Motion to Compel

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

To prevail on its motion, Defendant needs to show that the discovery requests were 1) properly served; 2) the time to respond has expired; and 3) that no response of any kind has been served. (Leach v. Super. Ct., (1980) 111 Cal.App.3d 902, 905-906.)

In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409, the Court of Appeal recognized that, in exercise of its discretion and based on the circumstances of the particular case, 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.

This Court is unable to determine whether or not this motion is indeed moot since no copies of the discovery responses were provided to this Court. However, defense counsel does not raise any issue concerning whether their responses are code compliant.

The motion to compel Plaintiffs to respond to Defendants’ Form Interrogatories (Set one), Special Interrogatories (Set one) and Demand for Inspection (Set one) is MOOT. This order is WITHOUT PREJUDICE to a motion to compel further responses.

II. Sanctions

Code of Civil Procedure, § 2030.290(c) states, in part: “If a party then fails to obey an order compelling answers [to interrogatories], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

The power to impose discovery sanctions is a broad discretion and subject to reversal only for arbitrary, capricious or whimsical action. Only two facts are absolutely prerequisite to imposition of the sanction: first, there must be a failure to comply and two) the failure must be willful. (Vallbona v. Springer (1996) 43 Cal. App. 4th 1525, 1545.) Where a party has repeatedly thwarted discovery and violated court orders, willfulness is established and nonmonetary sanctions are warranted. (R.S. Creative, Inc. v. Creative Cotton, Ltd, (1999) 75 Cal. App. 4th 486, 496.)

A. Terminating Sanctions

Since Plaintiffs have now responded to the discovery, terminating sanctions appear unwarranted at this time.

B. Monetary Sanctions

Plaintiff makes a request for monetary sanctions for the necessity of bringing the motion. The request is code-compliant.

In the moving and reply declarations in support of the motion for sanctions for the violation of this Court’s lawful orders, Defendants’ counsel is seeking $690.00. The Court will allow at this time three hours of attorney time plus $90 in court costs for a total of $540.00. This sum is to be paid by Plaintiffs within 20 days of the date of the filing of this Order.

While counsel listed the time he anticipates he would spend for the preparation of reply and appearing at the hearing, the Court does not grant speculative sanctions. Sanctions should be awarded only for expenses actually incurred. (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)

If Plaintiffs’ counsel does seek to orally argue before the Court, the Defendants may bring up the issue of further sanctions at that time.

III. Order

The request for terminating sanctions is DENIED.

The motion to compel plaintiffs to provide discovery responses to the foregoing discovery is MOOT WITHOUT PREJUDICE to a motion to compel further responses.

The Court order that the sum of $540.00 be paid by Plaintiffs to counsel for Defendants within 20 days of the date of the filing of this Order.