Sameer v. Moreno		CASE NO. 114CV266152
DATE: 19 December 2014	TIME: 9:00	LINE NUMBER: 26

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 18 December 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 December 2014, the motion of Defendants for an order to compel Plaintiff to provide further responses to Defendants’ special interrogatories, set one, numbers 1, 2, 4, 7, 8, 10, 13, 16, 19, 22, 25, 31, 34, 37, 40, 43, 49, 50, 55, 57, 58, 60, 61, 64, 67, 68, 70, 71, 74, 76, 78, and 79 and for sanctions was argued and submitted.

Plaintiff filed formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]

1. Statement of Facts.

The complaint was filed on 4 June 2014.  Plaintiff is representing herself in propria persona.[2]

Plaintiff alleges that she retained Defendant Moreno and the law firm of Hector Moreno & Associates on 27 December 2008 to represent her in post-judgment litigation concerning the divorce proceedings and to handle all financial matters pertaining to such post-judgment issues.  Mr. Moreno then delegated responsibility to his associates Connie Smith, Rory Coetzee, and Kayleigh Walsh.  She claims that Mr. Moreno abandoned her and withdrew from the case on 12 July 2013.

In a child-support matter pending in Fresno County, she claims to have retained Mr. Moreno who, along with associates Andrew Webster and Raechelle Velarde, a performed additional work.  Mr. Moreno is alleged to withdraw from the case on 13 November 2013.[3]

She claims that she was over charged and that the defendants performed various acts of malpractice in the handling of her legal matters.

Defendants filed a verified answer on 29 August 2014.

1. Discovery Dispute.

The present motion was filed on 17 November 2014.

Defendants serve their special interrogatories, set one, on 5 September 2014.  There are 81 special interrogatories.  These interrogatories are the standard triad of special interrogatories asking for all facts upon which Plaintiff bases her allegations in each paragraph of the complaint, each document supporting the allegation, and the identity of each person with knowledge regarding the allegations.

Plaintiff responded to those interrogatories on 2 October 2014.  While she did provide substantive responses to a few of the special interrogatories (at least to the satisfaction of defense counsel), many of the responses constitute boilerplate objections on vagueness, burden, premature disclosure of experts and so on.

There is a “meet and confer” letter dated 13 October 2014 sent by defense counsel to Plaintiff.

In her opposition papers, she states that she is leaving the country in June of 2015 to relocate in New Zealand and that defense counsel has refused to consider her to settlement offers and offered to give a deposition.  She also alleges that she had a 45 minute telephone conversation with Mr. Harris in October.

She also alleges that she objected to the violation by Defendants of the “Rule of 35″ for the special interrogatories but attempted to answer them in a spirit of cooperation.

III.     Analysis.

1. “Meet and Confer.”

The Court is satisfied that both sides attempted to meet and confer in good faith.

1. Jurisdiction to Hear This Motion.

Unless notice of motion is given within 45 days of the service of the response, or any supplemental response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the inspection demand.  Code of Civil Procedure, §§ 2030.300(c) (Interrogatories); 2031.310(c) (request for production of documents).

In Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, the Court held that a motion to compel further answers must be made within the time limit imposed by former section 2030, subdivision (a): “This statute is mandatory and a court may not entertain a belated motion to compel.”  (84 Cal. App. 3d at p. 788.)

“Given the symmetry of [Code of Civil Procedure, §§ 2030.300(c) and 2031.310(c)], we conclude that  the time within which to make a motion to compel production of documents is mandatory and jurisdictional just as it is for motions to compel further answers to interrogatories.  [¶]We agree with the qualification expressed in Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898[4] regarding the qualified ‘jurisdictional’ nature of the time line limitation of section 2031, subdivision (l): ‘Failure to [timely move to compel] within the specified period constitutes a waiver of any right to compel a further response; indeed, similar provisions have been held at least quasi-jurisdictional.  (Lincolnshire Condominium Ltd. v. Superior Court (1984) 158 Cal.App.3d 524 . . .; cf. Vidal Sassoon, Inc. v. Superior Court [supra, ] 147 Cal. App. 3d 681. . . .)”  (225 Cal.App.3d at p. 902, italics added.)  We do not believe the 45-day limitation is ‘jurisdictional’ in the fundamental sense, but is only ‘jurisdictional’ in the sense that it renders the court without authority to rule on motions to compel other than to deny them.”  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

The 45 days is extended under Code of Civil Procedure, §§ 1010.6(a)(4) and 1013 if served by mail, overnight delivery, fax or electronically unless the parties agree in writing to extend the time.

In this matter, Defendants filed this motion on 17 November 2014.  There is no proof of service appended to Plaintiff’s responses but they are signed or dated 28 September 2014.  By this Court’s calculation, the 45th day would have been 12 November 2014.  If the responses were served by mail, this motion is timely filed.

1. Motion to Compel Further Responses.

A party propounding interrogatories may move for an order compelling further responses if that party deems an objection is without merit or too general or a response is incomplete.  (Code of Civil Procedure, § 2030.300(a).)  The statute does not require any showing of good cause in support of a motion.  (See Code of Civil Procedure, § 2030.300; see also Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)  The burden is on the propounding party to obtain a judicial determination of the validity of any objection by moving to compel a further response.  However, the responding party has the burden to justify any objections or failure to fully answer.  (Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

1. “The Rule of 35” For Special Interrogatories.

Code of Civ. Proc. § 2030.040(a) allows a party to seek more than thirty-five Special Interrogatories when warranted by the complexity or quantity of the issues, the financial burden of conducting oral depositions or expedience. The propounding party is required by Code of Civ. Proc. § 2030.050 to submit a Declaration for Additional Discovery.

Code of Civ. Proc. § 2030.090(a) allows the responding party to promptly seek a protective order accompanied with a meet and confer declaration. Defendant complied with this requirement.

Code of Civ. Proc. § 2030.040(b) requires that when the responding party seeks a protective order, the propounding party has the burden of justifying the number of interrogatories.

This Court has been unable to locate any declaration filed by Defendants showing compliance with Code of Civil Procedure, §§  2030.040(a) or 2030.050.   However, it appears that Plaintiff waived this rule which was for her protection when she provided the substantive responses.

This Court has reviewed the Separate Statements filed by the parties and concludes that Plaintiff should have been able to provide further responses as requested.

Plaintiff verified her complaint, alleging that all of them were true.  She therefore has to respond to the special interrogatories with the information available to her.

Her offered to submit to a deposition is not well taken.  This Court fails to see how she could provide substantive responses to deposition questions which would be virtually similar to the content of the special interrogatories.

Furthermore, she never responded to special interrogatory number 8.

The motion of Defendants to compel Plaintiff to provide further responses to special interrogatories as prayed for is GRANTED in its entirety.  Plaintiff is to provide further responses within 20 days of the date of the filing and service of this order.

1. Sanctions.

Defendants make a request for the payment of monetary sanctions by Plaintiff.  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.”

Courts must look to the statute’s language and design as a whole, not merely particular statutory language at issue.  (K Mart Corp. v. Cartier, Inc. (1988) 486 U.S. 281, 291.)  This allows courts to harmonize all sections and retain the statute’s effectiveness in reviewing particular statutory language in the context of its entire statutory scheme.  (Bravo v. Ismaj (2002) 99 Ca.App.4th 211, 220.)  “The surest way to misinterpret a statute or a rule is to follow its literal language without reference to its purpose.”  (Viacom Int’l Inc. v. Federal Communications Comm’n, 672 F.2d 1034, 1040 (2d Cir. 1982).)

A court’s authority to award monetary sanctions arises from statutory authority, and not from the court’s own inherent authority.  (Trans-Action Commercial Investors, Ltd. v. Firmaterr (Jelinek) (1st Dist. 1997) 60 Cal.App.4th 352, 366.)  This authority is restricted because the Legislature has seen fit to establish such limitations.  (Jelinek, 60 Cal.App.4th at 371. See also Bauguess v. Paine (1978) 22 Cal.3d 626, 638-39. This case is still good law despite being superseded by Olmstead v. Arthur J. Gallagher & Co. (2002) 104 Cal. App. 4th 858, because Olmstead was ultimately reversed two years later.  The court responsible for the reversal had held that authorizing monetary sanctions for bad-faith acts was not applicable to claims initiated on or before December 31, 1994.)

The only code sections cited by Defendants are Code of Civil Procedure, §§ 2023 and 2030.  There are no such code sections.

The request of Defendants for the imposition of monetary sanctions against Plaintiff is DENIED.

1. Order.

The motion of Defendants to compel Plaintiff to provide further responses to special interrogatories as prayed for is GRANTED in its entirety.  Plaintiff is to provide further responses within 20 days of the date of the filing and service of this order.

The request of Defendants for the imposition of monetary sanctions against Plaintiff 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 81/2 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. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[2] This Court is not insensitive to the hardships placed on pro se litigants, even if they are experienced. Trial Courts are given broad discretion to consider motions and the nature of the motion is determined by the relief sought, not specific words contained therein. (See Sole Energy Co. v. Petrominerals Corp. 128 Cal.App.4th 187, 193, 26 Cal.Rptr.3d 790.)

Although a judge should ensure that self-represented litigants are not being misled or unfairly treated (see Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284), self-represented litigants are not entitled to special treatment with regard to the Rules of Court or Code of Civil Procedure. “[W]e cannot disregard the applicable principles of law and accord defendant any special treatment because he instead elected to proceed in propria persona. [Citations.]” (Stein v. Hassen (1973) 34 Cal. App. 3d 294, 303.) “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.’” (Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209.)

Therefore, a self-represented litigant is held to the same standards as an attorney. (Id.; see also Burnete v. La Casa Dana Apts. (2007) 148 Cal.App.4th 1262, 1264 [mistake in judgment in representing oneself not considered excusable neglect].)  When a litigant is appearing in propria persona, he or she is entitled to the same, but no greater, consideration than other litigants and attorneys. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444; see also Kobaysahi v. Superior Court (2009) 175 Cal.App.4th 536, 543; Rappleyea v. Campell (1994) 8 Cal.4th 975, 984-985.)

[3] In this matter, Defendants were successful in obtaining and upward modification of child support as well and as securing an order paying to plaintiff for some of $80,000 in attorneys fees relative to the child support modification.

[4] The 45 day period commences when the responses are received and not when the responses are due.