Borja v. Gan, et al.		CASE NO. 114CV259324
DATE: 15 August 2014	TIME: 9:00	LINE NUMBER: 11

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 14 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 15 August 2014, the motion of defendant Ning Gan (“Defendant”) to strike objections and compel further responses to requests for admissions and form interrogatories and for monetary sanctions was argued and submitted.  Plaintiff Regina Borja (“Plaintiff”) filed a formal opposition to Defendant’s motion.

Defendant is reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

Statement of Facts

According to the allegations of her complaint, Plaintiff, a citizen of the Philippines, retained Defendant as her attorney on 17 March 2005.  Plaintiff wantedDefendant’s assistance in obtaining legal authorization to engage in employment in the United States and in taking specific actions necessary to further Plaintiff’s goal of obtaining a “green card.”

At the time, Plaintiff was employed as a caregiver for the elderly at a business operating under the name of Sleepy Hollow Care Home (“Sleepy Hollow”).  Plaintiff alleges that Defendant had an ongoing business relationship with Sleepy Hollow that was designed to enable her to unjustly obtain legal fees from economic refugees from other countries, like Plaintiff.  Pursuant to their scheme, Defendant would induce these individuals to believe that remaining employed by Sleepy Hollow and paying fees to Defendant were necessary to obtain a green card and other legal benefits promised by Defendant.  Defendant would thereby assist Sleepy Hollow in keeping their victims employed in sub-standard and illegal conditions.  All the while, Defendant knew that the services for which these individuals paid would not achieve their goals and would ultimately be of no value to them at all.

In reliance on Defendant’s representations and omissions pursuant to this scheme, Plaintiff worked for nearly eight years for Sleepy Hollow in a position that approximated that of an indentured servant.

On 21 January 2014, Plaintiff filed this action against Defendant, asserting claims for: (1) intentional breach of fiduciary duty; (2) negligent breach of fiduciary duty; (3) fraud and misrepresentation; (4) negligent misrepresentation; (5) legal malpractice based on professional negligence; and (6) unfair competition.

Discovery Dispute

On 6 March 2014, Defendant served a first set of requests for admission (the “RFA”s) and a first set of form interrogatories (the “FI”s) upon Plaintiff.  The RFAs consisted of a judicial counsel form requesting that Plaintiff admit facts stated in “Attachment 1” and admit the genuineness of documents provided in “Attachment 2.”  Defendant does not state when Plaintiff’s responses to the RFAs were served or include the proof of service with the copy of them attached to her counsel’s declaration.  However, Plaintiff states that she served responses to the RFAs on 9 April 2014 by mail.  Defendant’s counsel declares that she provided Plaintiff’s counsel with an extension of time until 22 April 2014 to respond to the FIs, and Plaintiff served her responses by mail on 23 April 2014, one day late.

Defendant’s counsel sent two meet and confer letters to Plaintiff’s counsel on 5 May 2014, seeking further responses to the RFAs at issue in this motion.  On 28 May 2014, Plaintiff served a supplemental response to “Attachment 2” to the RFAs, which is not at issue in this motion.  By email on 29 May 2014 and afterwards, Defendant’s counsel advised Plaintiff’s counsel that she would file a motion to compel unless she received further responses to the disputed RFAs by 12 June 2014.  The same day, Plaintiff’s counsel responded, indicating that Plaintiff would stand upon her objections to the RFAs at issue and related FI 17.1.  Plaintiff also served amended responses to the FIs, but these responses did not change any of the responses to FI 17.1 that are at issue in this motion.

On 14 July 2014, Defendant filed the instant motion to compel further responses to the disputed RFAs and FI 17.1.  Plaintiff filed an opposition to Defendant’s motion on 4 August 2014.

Discussion

Defendant moves to compel further responses to RFAs 4-8, 20, and 21 and FI 17.1 insofar as it pertains to those RFAs.  Plaintiff contends that Defendant’s motion is untimely and was filed without adequate efforts to meet and confer, and also opposes the motion on substantive grounds.

        I.      Timeliness of Motion to Compel Further Responses

Motions to compel further responses to interrogatories and requests for admission must be filed within 45 days after the responses in question were served.  (Code of Civil Procedure (“CCP”), §§ 2030.300, subd. (c) and 2033.290, subd. (c).)  For responses served by mail within California, 5 calendar days are added to the time to file.  (CCP, § 1013, subd. (a).)  The Civil Discovery Act requires that responses to discovery be signed under oath by the party to whom the discovery is directed.  See Code of Civil Procedure, §§ 2030.250(a); 2031.250(a); 2033.240(a).  Where a verification to a response is required, service of an unverified response is ineffective to trigger the deadline to file a motion to compel.  (See Appleton v. Super. Ct. (1988) 206 Cal.App.3d 632, 635 -636.[2])

Here, Plaintiff’s verified responses to the RFAs were served on 9 April 2014 by mail within California.  Fifty days from 9 April was 29 May, Defendant’s deadline to move to compel further responses to the RFAs.  Plaintiff’s verified responses to the FIs were served on 23 April 2014.  Fifty days after that date was 12 June, which was Defendant’s deadline to move to compel further responses to the FIs.  Defendant did not file the instant motion until 14 July.  Accordingly, the motion is untimely as to both the disputed RFAs and FI 17.1.

Defendant’s deadline to file a motion to compel as to the responses at issue was not reset by Plaintiff’s service of amended and supplemental responses to RFAs and FIs not at issue in this motion.  There is no indication that Plaintiff agreed to extend Defendant’s deadline or even stated that she would serve supplemental responses at some point in the future.

This Court notes that under Code of Civil Procedure, §§ 2030.300, subd. (c), 2031.310(c), and 2033.290(c), the [45-day deadline applies unless a supplemental response is served or the parties agree in writing to an extended deadline.  This Court therefore believes that, combined with the obligation of the attorneys to “meet and confer”, there is no point in stopping the 45 day time limit on matters where “meet and confer” no longer is producing viable results.

The court lacks jurisdiction to rule on motions to compel further responses that were filed after the deadline provided by law.  (See Sexton v. Super. Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410 [demands for production]; Vidal Sasoon, Inc. v. Super. Ct. (Halpern) (1983) 147 Cal.App.3d 681, 685 [interrogatories].)  While the 45-day limitation is not necessarily “jurisdictional” in the fundamental sense, it is at least “quasi-jurisdictional” in the sense that it renders the court without authority to rule on motions to compel other than to deny them.  (See Sexton, supra, 58 Cal.App.4th at p. 1410.)

Because Defendant’s motion is untimely, the Court lacks jurisdiction to take any action other than to deny it.  Accordingly, the motion is DENIED.

      II.     Request for Monetary Sanctions

Defendant makes a code-compliant request for monetary sanctions against Plaintiff and her counsel pursuant to CCP sections 2030.300, subdivision (d), 2033.290, subdivision (d), and 2023.010, subdivision (d).

The first two provisions direct the court to impose a monetary sanction against any party who unsuccessfully opposes a motion to compel further responses to interrogatories or requests for admission, respectively, unless it finds that the party acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  Here, sanctions are unwarranted under these provisions because Plaintiff’s opposition to Defendant’s motion was successful.

CCP section 2023.010 does not itself set forth any provisions regarding the issuance of a monetary sanction, but merely defines certain actions as misuses of the discovery process. CCP 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.”  “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. Super. Ct. (Shanahan) (2008) 168 Cal.App.4th 1403, 1422.)  Here, the only statutes governing a particular discovery method that Defendant cites in support of her request are CCP sections 2030.300, subdivision (d) and 2033.290, subdivision (d), which, as discussed above, do not support an award of sanctions under the circumstances.  The Court accordingly finds that Defendant’s request is unsupported.

Defendant’s request for monetary sanctions is consequently DENIED.

Conclusion and Order

Defendant’s motion is DENIED.

Defendant’s request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

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

 

[1] “Each exhibit must be separated by a hard 8 1/2 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.”

[2] “Unverified responses to are tantamount to no responses at all.”  (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)