2011-00101272-CU-MC

People of the State of CA vs. Hardesty Sand & Gravel

Nature of Proceeding:  Motion to Compel 1) Special Interrogatories 2) Request for Production

Filed By:  Cole, Derek P.

*** If any party requests oral argument, then at the time the request is made, the
requesting party shall inform opposing counsel and the court of the specific
discovery requests or issues on which oral argument is sought.  ***

Factual/Procedural Background

Plaintiff Sacramento Metropolitan Air Quality Management District’s (“District”) motion
to compel further responses to its first sets of special interrogatories and document
requests is GRANTED.

This is an action for statutory penalties that Defendants Hardesty Sand & Gravel (the
“Company”), Joseph Hardesty and Yvette Hardesty (collectively “Defendants’)
allegedly owe primarily due to their failure to obtain the proper permits in conjunction
with their operation of a sand and gravel mine in Sacramento County.  The District
issued an abatement order, and Defendants unsuccessfully sought review of that order
in the superior court and the Court of Appeal.  Although the District alleges that
Defendants have ceased operations, it seeks statutory penalties for the period during
which Defendants operated without the proper permits.  In its complaint, the District
has pleaded causes of action for “Operation of Engines and Equipment without a
Permit and Emission of Toxic Air Contaminants,” Violation of Abatement Order, and
Failure to File Annual Reports. The District propounded the subject discovery to the Company on March 13, 2013.
According to the District, its principal aim in propounding this discovery was to learn
the number of days Defendants and operated without required permits.  The District
contends that it requires this information because the statutory penalties is are
calculated by the number of days Defendants operated without permits.

The Company did not serve timely responses.  The parties met and conferred, and
they agreed that the Company would serve their responses by May 6, 2013.  However,
the District was clear during the meet-and-confer process that it considered all
objections waived.  (See Cole Decl., Exh. C.)

On May 6, 2013, Mr. Hardesty mail-served responses containing objections.  (There is
no evident dispute over the fact that Mr. Hardesty, not the Company, is designated as
the responding party in the original responses.)  The parties met and conferred, during
which time the District contended that the responses were deficient for additional
reasons.  The parties stipulated to continue the deadline on the instant motion to
October 25, 2013, the day the motion was filed.

Discussion

The court agrees with the District that the Company waived all objections by failing to
serve timely responses.  (See CCP §§ 2030.290(a), 2031.300(a).)  The court rejects
Defendants’ argument that, because their counsel indicated that the Company would
serve their original, belated responses without objections, and that because the
District’s counsel did not reiterate the District’s position that all objections were waived,
the District tacitly stipulated that Defendants had not waived their objections.

The Company must serve further responses to the subject discovery requests in which
all objections are omitted, including objections (whether explicitly denominated
”objections” or included as part of substantive “responses”) on grounds that
information is equally available to the District.

In addition, the Company must respond to each interrogatory or document request in
strict compliance with CCP §§ 2030.210-2030.220 and 2031.210-2031.2031.230,
including the provisions governing a responding party’s inability to comply with part or
all of a discovery request.  The court notes that a response that “discovery is
continuing” does not fulfill the Company’s obligations under the Discovery Act.

Pursuant to CCP §§ 2030.300(d), 2031.310(h), the court imposes a monetary action
against the Company and its counsel, William K. Brewer, in the amount of $1,030
(3hrs @ reasonable rate of $220/hr, 1 hr @ reasonable rate of $250/hr, and 1 hr @
reasonable rate of $120/hr.)  Counsel for the District made reasonable efforts to meet
and confer, and the court rejects the Company’s argument to the contrary.

Conclusion

No later than January 3, 2014, the Company must serve further responses, without
objections, to each discovery request set forth in the separate statement.

No later than January 13, 2014, the Company and its counsel shall pay the monetary
sanction.  If the Company and its counsel fail to pay the sanction by such date, then
the District may lodge for the court’s signature a formal order awarding sanctions,
which may be enforced as a separate judgment.  (See Newland v. Superior Court
th
(1995) 40 Cal.App.4    608, 615.)

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.