Case Number: BC666853 Hearing Date: August 31, 2018 Dept: 4

Motion for Order Compelling Plaintiff to Answer Form Interrogatories, Set No. One (against Rafael Lizarraga, Jr.)

Motion for Order Compelling Plaintiff to Answer Form Interrogatories, Set No. One (against Alexis Lizarraga)

Motion for Order Compelling Plaintiff to Answer Special Interrogatories, Set No. One (against Rafael Lizarraga, Jr.)

Motion for Order Compelling Plaintiff to Answer Special Interrogatories, Set No. One (against Alexis Lizarraga)

Motion for Order Compelling Plaintiff to Respond to Demand for Production of Documents, Set No. One (against Rafael Lizarraga, Jr.)

Motion for Order Compelling Plaintiff to Respond to Demand for Production of Documents, Set No. One (against Alexis Lizarraga)

The court considered the moving papers. No opposition filed.

Background

On June 27, 2017, plaintiffs Rafael Lizarraga, Jr. and Alexis Lizarraga filed a complaint against defendants Rebecca V. Oriordan and Zhihong Chen for motor vehicle negligence based on an incident that occurred on July 2, 2015.

Trial is set for December 27, 2018.

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. (Code Civ. Proc. § 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.)

Request for Production of Documents

Where there has been no timely response to a section 2031.010 demand, the demanding party must seek an order compelling a response. (Code Civ. Proc. § 2031.300.) Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of “good cause” is required. (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (Rutter 2007) ¶ 8:1487.)

Discussion

Motions to Compel

Defendant Rebecca V. Oriordan requests that the court compel Plaintiffs to serve verified responses without objections to Defendant’s first sets of form interrogatories and special interrogatories. Defendant also requests that the Court compel Plaintiffs to serve responses to her first sets of demands for inspection and production of documents. Defendant served discovery requests on March 26, 2018. (Hackett Decl., ¶ 3, Exh. A.) Responses were due 30 days thereafter. On May 22, 2018, defense counsel wrote to Plaintiffs’ counsel requesting the overdue responses and requesting a response to the letter by May 28, 2018 as to the status of responses. (Hackett Decl., ¶ 4, Exh. C.) Instead of serving responses, Plaintiff’s counsel responded that the responses were the same as to the co-defendant for a different accident. (Hackett Decl., ¶ 5.) Further, Plaintiff has not responded to the first set of form interrogatories. (Ibid.)

Because Defendant properly served discovery requests and Plaintiffs failed to serve verified responses, the motions are GRANTED.

Sanctions

Under Code of Civil Procedure § 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 Code of Civil Procedure section 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.” (Code Civ. Proc. §§ 2030.290(c), 2031.300(c).)

California Rules of Court, Rule 3.1348(a) states, “[t]he 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.”

Defendant requests sanctions against plaintiffs and their attorney of record, Robert J. Waechter, Esq., in the amount of $540 per motion for six filing fees, 1.5 hours spent on the preparation of each motion, 1 hour for each reply, and 3 hours to attend the hearing at $160 per hour. The Court finds that $1060 ($160 per hour for 1.50 hours per motion and 1 hour for the appearance and travel for three motions, plus $180 in filing fees) is a reasonable amount to be imposed against Plaintiff Rafael Lizarraga, Jr. and his attorney of record in total for three motions. The Court finds that $1060 ($160 per hour for 1.50 hours per motion and 1 hour for the appearance and travel for three motions, plus $180 in filing fees) is a reasonable amount to be imposed against Plaintiff Alexis Lizarraga and her attorney of record in total for three motions.

The Court ORDERS:

Plaintiffs are ordered to serve on Defendant Rebecca V. Oriordan verified responses without objections to Defendant’s Form Interrogatories, Set One, and Special Interrogatories, Set One, within 20 days.

Plaintiffs are ordered (1) to serve on Defendant verified responses without objections to Defendant’s Demands for Inspection and Production of Documents, Set One, and (2) to produce all documents and things in Plaintiff’s possession, custody, or control, which are responsive to Defendant’s demand, within 20 days.

The Court orders Plaintiff Rafael Lizarraga, Jr. and his attorney of record, Robert J. Waechter, Esq., to pay to Defendant a monetary sanction in the amount of $1060.00 within 30 days in total for three motions.

The Court orders Plaintiff Alexis Lizarraga and her attorney of record, Robert J. Waechter, Esq., to pay to Defendant a monetary sanction in the amount of $1060.00 within 30 days in total for three motions.

Moving Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: August 31, 2018

____________________________

Christopher Lui
Judge of the Superior Court