Case Number: BC634471 Hearing Date: May 02, 2018 Dept: 4

MOVING PARTY: Plaintiff Natalie Lopez

RESPONDING PARTY: Defendant Food 4 Less of California, Ind.

Motion to Compel Defendant to Respond to Special Interrogatories (Set One)

The court considered the moving, opposition, and reply papers.

BACKGROUND

On September 21, 2016, plaintiff Natalie Lopez filed a complaint against defendant The Kroger Co. for general negligence and premises liability based on a slip and fall incident at Food 4 Less. She alleges that the incident was caused by grapes that were dropped onto the floor and were not cleaned up by staff.

LEGAL STANDARD

Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP §2030.290(b). The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, 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.

DISCUSSION

Plaintiff requests that the court compel defendant to serve verified responses without objections to plaintiff’s Special Interrogatories, Set One, which were served on January 26, 2018. Responses were due by March 2, 2018. On March 14, 2018, plaintiff’s counsel sent a letter to defense counsel requesting responses by March 20, 2018. On March 15, 2018, plaintiff’s counsel sent another letter advising that plaintiff would file a motion to compel if defendant did not serve responses by March 20. On March 19, 2017, defense counsel responded that defendant wished to cooperate and would provide responses to a majority of the questions, and that counsel’s “office would do its best in [handling attorney] Kevin’s absence to avoid conflict and provide responses to the special interrogatories.” The letter noted that Kevin Mackin had been hospitalized the prior week. The letter also indicated that “[w]e will use our best efforts to get responses to you by” March 22. As of the filing date of the motion (March 21, 2018), plaintiff’s counsel had not received responses.

In opposition, defendant contends plaintiff’s counsel Jura Hartley “lacked standing” to propound discovery or to bring this motion because a notice of association of counsel had not been filed when plaintiff propounded discovery and that when the notice was filed, counsel of record Brandon Anand had not signed it. Defendant also contends that the motion is moot because defendant served its verified responses on March 21, 2018. Defendant further contends that it failed to respond sooner because defense counsel had been hospitalized.

The court finds that the motion is MOOT because defendant served responses.

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless 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.” CCP §§ 2030.290(c), 2031.300(c).

Cal. Rules of Court, Rule 3.1348(a) states: “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.”

Plaintiff requests sanctions against defendant in the amount of $2,300. The court finds that $560 ($250/hr. x 2 hrs. hrs. plus $60 filing fee) is a reasonable amount of attorney’s fees and costs to be awarded against defendant because defendant did not serve responses by the extension date. Defendant has not shown substantial justification. Defendant has not cited to any authority regarding its argument as to the notice of association.

The court orders defendant to pay to plaintiff a monetary sanction in the amount of $560 within 30 days.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: May 3, 2018

____________________________

Dennis J. Landin

Judge of the Superior Court