RPAI Gilroy, LLC v. Todd Daugherty; Norcal D3, LLC CASE NO. 111CV209568
DATE: 19 June 2014 TIME: 9:00 LINE NUMBER: 3
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 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 19 June 2014, the motion of Plaintiff RPAI Gilroy, LLC (Plaintiff) to compel Defendants Norcal D3, LLC dba It’s a Grind Coffee Shop and Todd Daugherty (Defendants) to respond to Plaintiff’s post-judgment requests for production of documents, responses to written interrogatories, and for monetary sanctions was argued and submitted.

Defendants did not file formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

Statement of Facts

The underlying action arises out of a commercial lease between the parties. The Plaintiff was the landlord of the property located at 890 Renz Lane, #100, Gilroy, California 95020 and the Defendants were the Tenants of this property. Plaintiff sued Defendants for breach of lease as a result of the Defendants’ vacating the premises before the expiration date and failing to pay rent due thereunder. Todd Daugherty is the managing member for Norcal D3, LLC.

Plaintiff acquired the shopping center, wherein the concerned property is located, from Inland Western Gilroy I, LLC (Inland). By acquiring the shopping Center, Plaintiff now holds Inland’s interest as Lessor in the leased property in this case.

Pursuant to the Declaration of Christine Thomas, the manager of the shopping center at issue, on March 18, 2003 Inland and Defendant Sip ‘N Hot Sip ‘N Cold, Inc. (Sip ‘N Hot), entered into a written lease concerning the property in this lawsuit. Around November 27, 2006 Sip ‘N Hot assigned its interest in the lease to Defendant Norcal D3. Todd Daugherty executed a written guaranty agreement concurrent with Norcal D3’s agreement.

Only Norcal D3 and Todd Daugherty remain as Defendants. On October 24, 2011 Sip ‘N Hot, Bharat C. Poria, and Raksha Poria were successfully dismissed from this action. On November 10, 2011 Defendant Daniel Dixon filed a notice of stay of proceedings to give notice of his Bankruptcy case filing. On December 13, 2011 and August 22, 2012 all claims against Daniel Dixon were successfully dismissed. On May 21, 2012 IAG Coffee Franchise, LLC was successfully dismissed. On September 17, 2013 Does 1 through 20, Inclusive were successfully dismissed.

Plaintiff received a default judgment under Cal Code Civ. Proc. § 585(b) in the amount of $314,614.94 against Defendants Norcal D3 and Todd Daugherty on October 22, 2013.

Discovery Dispute

Plaintiff served Defendants with post-judgment requests for production of documents and written interrogatories on February 18, 2014. On April 22, 2014 having yet to receive responses, Plaintiff sent a letter to Defendants requesting responses to Plaintiff’s post-judgment requests within 10 days.

Plaintiff filed this motion May 29, 2014 requesting the court to compel Defendants to provide responses to written interrogatories and demand for production of documents. Plaintiff also requests monetary sanctions.

Analysis

I. Motion to Compel Responses to Post-Judgment Interrogatories

Plaintiff asks the court to compel the Defendants to respond to Plaintiff’s written interrogatories.

The judgment creditor may propound written interrogatories to the judgment debtor, in the same manner provided under Cal Code Civ. Proc. § 2030.010(a) for pre-trial discovery by written interrogatories. CCP § 708.020(a). Interrogatories that are served pursuant to this section may be enforced, to the extent practicable, in the same manner as interrogatories in a pre-trial civil action. CCP § 708.020(c).

If a party to whom interrogatories are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling responses. Code Civ. Proc. § 2030.290(b) (interrogatories). A party must respond within 30 days after service of an interrogatory or demand for inspection unless time to respond has been modified by a propounding or responding party’s successful motion. Code Civ. Proc. § 2030.260 (interrogatories).

To establish that a party did not serve a timely response to interrogatories, the moving party must show that the responding party was properly served with the discovery request, that the deadline to respond has passed, and that the responding party did not timely respond to the discovery request. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290. See (Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)

If a party to whom interrogatories or demand for inspection are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling responses. Code Civ. Proc. § 2030.290(b) (interrogatories) § 2031.300(b) (response to demand).The party who fails to serve a timely response waives any right to object to the interrogatories or demands, including ones based on privilege or on the protection of work product. Code Civ. Proc. § 2030.290 (a) (interrogatories) § 2031.300(a) (response to demand for production).

Plaintiff has shown that the post-judgment written interrogatories were properly served on the Defendants. CCP §2030.080(a). The deadline for the Defendants to respond has passed and the Defendants have not timely responded to Plaintiff’s discovery requests. CCP §§ 2030.060(a); 2030.290.

Plaintiff has established that they are entitled to an order of this Court to compel Defendants to respond to their post-judgment interrogatories pursuant to CCP § 708.020(c).

Accordingly, Plaintiff’s motion to compel Defendants to respond to post-judgment interrogatories is GRANTED. Defendants are to provide code compliant responses, without objection, to Plaintiff’s post-judgment interrogatories within 20 days of the date of the filing of this Order.

II. Motion to Compel Responses to Post-Judgment Demands for Production

Plaintiff asks the court to compel Defendants to respond to Plaintiff’s demand for production of documents.

The judgment creditor may demand that any judgment debtor produce and permit the party making the demand, or someone acting on that party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made in the same manner provided in CCP § 2031.010 for pre-trial discovery demands to produce. CCP § 708.030(a). Inspection demands served pursuant to this section may be enforced to the extent practicable, in the same manner as inspection demands in a civil action. CCP § 708.030(c).

If a party to whom demands for production are directed fails to serve a timely response, the party propounding the demand may move for an order compelling production. Code Civ. Proc. § 2031.300(b). A party must produce documents within 30 days after service of demand to produce unless time to respond has been modified by a propounding or responding party’s successful motion. Code Civ. Proc. § 2031.260.

To establish that a party did not serve a timely response to demands, the moving party must show that the responding party was properly served with the discovery request for demands to produce, that the deadline to respond has passed, and that the responding party did not timely respond to the discovery request or demand to produce. Code Civ. Proc. §§ 2031.040; 2031.260(a); 2031.300.

Plaintiff’s memorandum incorrectly cites CCP § 708.020(c) as the authority for which the court can compel a party to respond to post-judgment requests for production of documents. The correct authority is CCP § 708.030(c). Plaintiff’s use of § 708.020(c) pertains to enforcement of post-judgment interrogatory requests not demands for production of documents. The court may deny Plaintiff’s motion because he has failed to cite the proper legal authority that supports a position of entitlement to a court order compelling production of documents. (See Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [indicating that court may deny motion that does not set forth the legal basis for the relief requested].).

However, the Plaintiff has established that the Defendant was properly served with this discovery request, that the time to respond has passed, and there was no timely response to Plaintiff’s discovery request. CCP §§ 2031.040; 2031.260(a); 2031.300.

Notwithstanding the incorrect citation, this Court orders Plaintiff’s motion to compel Defendants’ responses to demands for production of documents GRANTED. Defendants are to provide code compliant responses, without objection, to Plaintiff’s post-judgment requests for production within 20 days of the date of the filing of this Order.

Sanctions

Plaintiff makes a request for monetary sanctions. The request is not code-compliant.

Code of Civil Procedure, § 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 forth facts supporting the amount of any monetary sanction sought.” See Rule of Court 2.30.

Since Defendants did not file opposition to motion to compel responses to the interrogatories and demand for production, the Defendant has not “unsuccessfully opposed” the Plaintiff’s motions. Code Civ. Proc. §§ 2030.290(c); 2031.300(c). Therefore, the reliance on §§ 2030.290, 2031.300 for monetary sanctions is inapplicable. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where 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.

The Court suggests the proper procedure would be to put the following language in the notice of the motion:

“If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which 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.”

Additionally, Plaintiff did not specify against whom the sanctions were sought in the notice of motion as required under CCP § 2023.040.

Finally, Plaintiff does not specify in the notice of motion that monetary sanctions are sought. While it can be inferred that monetary sanctions are sought because a dollar amount is requested, it is better practice to always explicitly state the type of sanction being sought.

Accordingly, monetary sanctions for failure to comply with the interrogatory requests and demands to produce are DENIED.

Order

The motions of Plaintiff to compel Defendants to respond to Plaintiff’s Interrogatories and Demand for production are GRANTED. Defendants are to provide code compliant responses without objections within 20 days of the date of the filing of this Order.

The request for monetary sanctions is DENIED.