NACCO Materials v. Telecomm1Stop Corp.		CASE NO. 256065
DATE: 3 October 2014	TIME: 9:00	LINE NUMBER: 13

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 24 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 September 2014, the motion of Plaintiff, NACCO Materials Handling Group, Inc. to have facts and documents deemed admitted and for monetary sanctions was argued and submitted.[1]

Defendant Telecomm1Stop Corporation filed formal opposition to the motion.[2]

The Opposition to the Motion was untimely [(Code of Civil Procedure, § 1005(b)] and will not be considered.  (Rule of Court 3.1300(d).[3])

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[4]

I.       Statement of Facts.

This matter arises from a dispute where Plaintiff NACCO Materials Handling Group, Inc. is owed $35,396.00 from Defendant Telecomm1Stop, Corporation.

II.      Discovery Dispute.

Plaintiff served a Request of Admissions on Defendant on 4 February 2014.

After not responding to the Response of Requests for Admissions, Plaintiff sent a request for voluntary compliance with discovery on 19 May 2014. Plaintiff states that they have not received any amended responses to their Requests for Admissions numbered 4 through 14. [5]

III.     Analysis.

         A.  Motion to have Request for Admissions deemed Admitted

On 4 February 2014, Plaintiff served Requests for Admission onto the Defendant. Plaintiff contacted Defendant again on 19 May 2014 seeking compliance with their responses.

Code of Civil Procedure, §2033.280 states:

If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a)    The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product…”

(b)    The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(c)     The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court imposes a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.

As of this order, Defendant has not complied with Plaintiff’s discovery request. Defendant’s opposition does not state a reason why they are unable to comply with the discovery request.

This motion is GRANTED. Plaintiff’s request for admission is deemed ADMITTED.

         B.  Sanctions.

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.

Plaintiff makes a request for monetary sanctions, citing Code of Civil Procedure, §§ 2023.030, 2033.280(c) and Courtesy Claims Service Inc. v.  Superior Court (1990) 219 Cal App 3d 52 for the proposition that the imposition of monetary sanctions is mandatory.  The Courtesy Claims Service Inc. was partially overruled on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973.  The request is code-compliant.

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.  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 Court may impose monetary, evidentiary, contempt or terminating sanctions where a party is engaging in conduct that is a misuse of the discovery process.  (See Code Civ. Pro. § 2023.030).  Misuses of the discovery process include but are not limited to Code of Civil Procedure, § 2023.010(d): “Failing to respond or to submit to an authorized method of discovery.”

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 him (2010) 186 Cal.App.4th 1548, 1551).

In its opposition, Defendant’s counsel argues that it plans to file for bankruptcy, and that continued costs of litigation will not benefit either party in this matter. While that is unfortunate, Defendant has only stated that it plans to file for bankruptcy, but is not currently in bankruptcy.  Defendant’s argument fails to be persuasive to this Court and Plaintiff is entitled to monetary sanctions.

Plaintiff’s counsel declares that her rate is $325.00 per hour. This is a reasonable rate within Santa Clara County. Counsel further declares that she spent 1.6 hours drafting the documents filed for this motion. This is a reasonable time to prepare the motion. The Court will award sanctions for this work.  Plaintiff might also have been entitled to the $90.00 incurred for the filing fee of this motion, but this sum was not claimed in the supporting declaration and thus cannot be awarded.

Plaintiff’s request for monetary sanctions against Defendant is GRANTED. Defendant and counsel shall pay $520.00 to Plaintiff’s counsel within 20 days of date of this order.

IV.     Order.

Plaintiff’s Motion to have Facts and Documents Deemed admitted is GRANTED. Their request for admissions is deemed ADMITTED.

Plaintiff’s request for monetary sanctions against Defendant is GRANTED. Defendant and counsel shall pay $520.00 to Plaintiff’s counsel within 20 days of the date of this Order.

 

 

________________­­­____________ DATED:

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

 

[1] Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”

[2] “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).

[3] “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”

[4] “Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[5] Although no meet and confer is required for this motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)