Nancy Shorum v. Olivia Cornfield

Shorum v. Cornfield CASE NO. 113CV258080
DATE: 19 September 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 Thursday 18 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 September 2014, the motion of Defendant Olivia Cornfield to compel Plaintiff Nancy Shorum to respond to Defendant’s Form Interrogatories, Set One, Request for Production of Documents, Set One, and her Request for Monetary Sanctions was argued and submitted.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]  The format of the exhibits is not code compliant.

I. Statement of Facts

The complaint in this matter was filed on 20 December 2013.  Plaintiff claims to have been injured on 20 December 2011 as a result of an automobile accident at the intersection of Oregon Expressway and Louis Road in the city of Palo Alto.  She claims that Defendant was negligent in the operation of her motor vehicle as result of a failure to yield the right of way while making a left turn at that intersection

II. Discovery Dispute

On 13 June 2014, Defendant served on Plaintiff Form Interrogatories, Set One, and Request for Production of Documents, Set One.

On 28 July 2014, Defendant sent Plaintiff a letter stating Plaintiff’s responses were overdue, and requested responses without objections within 10 days.

On 7 August 2014, Defendant sent Plaintiff another letter stating Plaintiff’s responses were overdue, and requested responses without objections within 10 days.

On 15 August 2014, Plaintiff called Defendant and left a message requesting that the parties discuss a calendar regarding discovery.

On 18 August 2014, Plaintiff called Defendant again, and left a message requesting that the parties discuss a calendar regarding discovery.

On 19 August 2014, Plaintiff and Defendant met at a case management conference.  Plaintiff stated Plaintiff would complete discovery prior to the next case management conference on 28 October 2014.  Plaintiff asserts in Plaintiff’s declaration that Defendant did not object to the proposed deadline.  Later that day, Defendant called Plaintiff and informed Plaintiff that a motion to compel was being filed.  Plaintiff explained that Plaintiff’s counsel had a serious family health situation, and the motion to compel was not necessary because Plaintiff had every intention of providing responses as soon as possible.

On 27 August 2014, Defendant filed this Motion to Compel.

On 9 September 2014, Plaintiff filed an opposition which was one day late.  Defendant replied on 12 September 2014.  This Court has decided to consider all papers.[2]

III. Motion to Compel Discovery

Defendant seeks an order compelling Plaintiff to provide responses to Form Interrogatories, Set One, and Request for Production of Documents, Set One.  In support of the motion, Defendant cites California Code of Civil Procedure §§ 2030.010, 2030.290(a)(b), 2031.010, and 2030.300(a)(b).  The citation to § 2030.300(a)(b) appears to be a typo, intended to cite to § 2031.300(a)(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) § 2031.300(a) (response to demand for production).

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) § 2031.300(b) (response to demand for production). 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).

Here, Plaintiff opposes this motion based on an alleged lack of meet and confer attempts.  There is no meet and confer requirement at this stage.  However, even though 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.  (Italicized the (1982) 134 Cal.App.3d 285, 289.)

Plaintiff also mentions a serious family health issue as reason for the delay in responses.  While the Court is sympathetic, the only evidence of Plaintiff’s communication regarding this discovery began 15 August 2014, a month after responses were due.  Plaintiff has also only offered to provide responses by 28 October 2014, over 3 months past the due date for responses.

Defendant’s request is substantially code-compliant.  Defendant provided proof of service, the deadline for responses is past, and Plaintiff has not timely responded. Defendant properly cites Code Civ. Proc. § 2030.290(a)(b).  Defendant appears to have intended to cite § 2031.300(a)(b).  However, Defendant has a typo in multiple places where Defendant instead cites § 2030.300(a)(b).  (See Defendant’s Notice, page 2, and Defendant’s Memorandum, page 2.)

Having a typo in a citation to a code section is problematic, and copy-pasting that typo exacerbates the issue.  However, while Defendant technically does not cite the correct section to compel production of documents, it is well established that California discovery should be construed in favor of discovery.

Therefore, Defendant’s Motion to Compel Plaintiff to Respond to Defendant’s Form Interrogatories, Set One, is GRANTED.  Plaintiff is to provide code complaint responses to Defendant within 20 calendar days.

Defendant’s Motion to Compel Plaintiff to Respond to Defendant’s Request for Production of Documents is GRANTED.  Plaintiff is to provide code compliant responses to Defendant within 20 calendar days.

IV. Sanctions

Defendant makes a request for monetary 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).  The party’s motion must also state the applicable rule that has been violated. (Id.).

Defendant’s request is code-compliant.  In support of the request for sanctions, Defendant properly cites Code of Civil Procedure, §§ 2030.290(c) and 2031.300(c).

As Defendant appears to be aware, 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.

Section 2023.030 authorizes a court to impose the specified types of sanctions, “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” (Id.) This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.”  (New Albertsons, Inc. v. Superior Court (Shanahan) (2008) 168 Cal.App.4th 1403, 1422.)  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.

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).

Here, Defendant’s request is code compliant.  Defendant cites to the proper authority, names the party to be sanctioned, and the request is supported by a memorandum of points and authorities, and a declaration.  Therefore, Defendant’s request for monetary sanctions against Plaintiff is reduced and GRANTED in the amount of $460.

Order

Defendant’s lower case that Plaintiff to respond to Defendant’s form interrogatories and request for production of documents, sets one, is GRANTED.  Plaintiff is to provide code complaint responses to Defendant within 20 calendar days of the date of the filing of this Order.

Defendant’s request for monetary sanctions against Plaintiff is reduced and GRANTED in the amount of $460.  Said some is to be paid to counsel for Defendant within 20 days of the date of the filing of this Order.

 

 

________________­­­____________

DATED:

_________________________­­­________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara

 

 

[1] “Each exhibit must be separated by a hard 81/2 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.”

[2] An opposition brief to a discovery motion must be filed at least nine court days before the hearing.  (Code Civ. Proc., § 1005, subd. (b).)  A court has the discretion to refuse to consider a late filed paper.  (Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32-33.)  Here, the Court will consider the late filed opposition because no one appears to have been prejudiced by considering the merits of the late filed brief.

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