Roberts v. Prakash CASE NO. 112CV237104
DATE: 1 May 2014 TIME: 9:00 LINE NUMBER: 9
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 Wednesday 30 April 2014. Please specify the issue to be contested when calling the Court and counsel.

On 1 May 2014, Defendant’s Motion to Compel Responses from Plaintiff to Defendants Interrogatory and Demand for Inspection; and for monetary sanctions was argued and submitted. Plaintiff did not file formal opposition to the motion.

Facts

Plaintiff filed suit on 4 December 2012, following a vehicle collision that occurred on 4 December 2010. In response to the complaint, Defendant raised affirmative defenses.

The defenses raised by the Defendant include comparative fault (i.e., negligence by Plaintiff that attributed to the injury), failure by Plaintiff to mitigate, that the Complaint is barred by applicable statute of limitation, that the Plaintiff was not insured at the time of the accident as required by the state laws and thus in violation of the Vehicle Code, and that prior to the filing of the complaint, the Plaintiff and Defendant had entered into a settlement for property damage and loss of use of said Plaintiff’s vehicle in exchange for a release of all claims for such damages. (See Exhibit C, Answer to Complaint.)

Discovery Dispute

On 28 January 2014, Defendant served Plaintiff with Supplemental Interrogatory and Supplemental Demand for Inspection. Failing to receive any correspondence from the Plaintiff, on 10 March 2014, attorney for Defendant sent a meet and confer letter to plaintiff’s attorney requesting responses to the requests. Plaintiff has not provided any responses to Defendant’s request for supplemental interrogatory and to the supplemental demand for inspection.

Discussion

Motion to Compel Responses

Defendant brings this motion to compel responses from the Plaintiff in response to Defendant’s request for Supplemental Interrogatory and Supplemental Demand for Inspection under CCP §§ 2031.300 and 2030.290.

CCP § 2031.300 applies if a party to whom a demand for Inspection, copying, testing, or sampling is directed fails to serve a timely response; and CCP § 2030.290 applies where a party to whom interrogatories are directed fails to serve a timely response. A supplemental demand to inspect may be propounded under CCP § 2031.050 for any later acquired or discovered documents, tangible things… or electronically stored information in the possession, custody, or control of the party on whom the demand is made.

This does not appear to the situation here. The Defendant incorrectly states that the motion under CCP §§ 2031.300 and 2030.290 is for supplemental discovery.

Rule

The party to whom written discovery has been propounded is required to serve a response within 30 days, or on any later date to which the parties have agreed. (See Code Civ. Proc. (“CCP”), §§ 2030.260, 2030.270 [interrogatories]; 2031.260, 2031.270 [requests for production].) If the party to whom interrogatories or requests for production are directed fails to serve a timely response, that party waives any objections to the discovery. (CCP, §§ 2030.290, subd. (a) [interrogatories]; 2031.300, subd. (a) [requests for production].) Additionally, the propounding party may move for an order compelling a response. (CCP, §§ 2030.290, subd. (b) [interrogatories]; 2031.300, subd. (b) [requests for production].) There is no limitation period (see CCP, §§ 2030.290, 2031.300) or meet and confer requirement (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411-412; Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906) for bringing a motion to compel an initial response. The moving party need only show that the discovery was properly propounded and a timely response was not served. (See id.) If the party to whom requests for admissions are directed fails to serve a timely response, that party waives any objection to the requests. (CCP, § 2033.280, subd. (a).)

Here, Defendant claims that Plaintiff has not made any discovery responses to her request. In spite of Defendant having served the Plaintiff with request for interrogatories and a demand for inspection on 28 January 2014 and further having sent a meet and confer communication to the Plaintiff, the Plaintiff has failed to respond to her requests. Since the Plaintiff has failed to respond to the Plaintiff’s requests, it is deemed that the Plaintiff waives any objections to the discovery requests.

Thus, the Defendants Motion to Compel Responses from Plaintiff to Defendants Interrogatory and Demand for Inspection is GRANTED.

Monetary Sanctions

Defendant requests for monetary sanctions in the amount of $390 because of Plaintiff’s failure to respond.

Code of Civil Procedure, section 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 for facts supporting the amount of any monetary sanction sought.” CCP § 2023.040 (emphasis added).

Defendant states that Plaintiff’s failure to respond is a misuse of discovery process under CCP section 2023.010 (d) and therefore request that the Court grant monetary sanctions under CCP section 2023.030 (a).

Here, Defendant prevailed on his motion to compel, Plaintiff did not act with substantial justification, and no other circumstances render the imposition of a sanction unjust. However, this is not code complaint. The Code requires that the monetary sanction may be imposed against an attorney who unsuccessfully makes or opposes the motion to compel. Since Plaintiff has not opposed the motion monetary sanctions cannot be awarded.

CCP section 2031.300 provides that “the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection . . . 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.” However, since no opposition to this motion was filed, these sections are not applicable.

CCP section 2023.030 authorizes sanctions for misuse of discovery insofar as is authorized by a chapter governing any particular discovery method, for example, section 2031.300(d) for sanctions in relation to failure to respond to a request for production. CCP § 2023.030. As such, CCP 2023.030 is also not an independent basis upon which this Court may grant sanctions.

Likewise, section 2023.030 authorizes sanctions for misuse of discovery only insofar as is authorized by a chapter governing any particular discovery method, for example, section 2031.300(d) for sanctions in relation to failure to respond to a request for production. CCP § 2023.030. As such, 2023.030 is also not an independent basis upon which this Court may grant sanctions. cases where there is no opposition, plaintiffs’ counsel should cite as support Cal. Rules of Court, rule 3.1348(a).

The request for Monetary Sanctions in the amount of $390.00 is DENIED.

Conclusion

Defendants Motion to compel responses from the Plaintiff to the interrogatories and for inspection is GRANTED. Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

Defendant’s request for monetary sanctions is DENIED.