Sikh Gurdwara-San Jose v. Singh CASE NO. 112CV232644
DATE: 13 June 2014 TIME: 9:00 LINE NUMBER: 4
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 13 June 2014, the motions of Sikh Gurdwara-San Jose, Sukhdev Singh Bainiwal, Bhupindar Singh Dhillon, Sarbjot Singh Swaddi, Pritam Grewal, and Prajinder Singh Mangar (“Plaintiffs”) to:

1. compel Kulwant Singh (“Defendant”) to respond to form interrogatories, sets two and three; supplemental interrogatories and for monetary sanctions;
2.
3. compel Defendant to response to requests for production of documents, set two, supplemental requests for production of documents and for monetary sanctions; and
4.
5. deem the matters set forth in requests for admissions, set one and two be deemed admitted, and for monetary sanctions
6.
were argued and submitted. Defendant did not file formal opposition to the motion.

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

I. Background

This action is for defamation of Plaintiffs and their Sikh temple by Defendant. Defendant allegedly made several defamatory statements about Plaintiffs in a Punjabi language publication and on Facebook.

II. Discovery Dispute

On 31 March 2013, Plaintiffs sent the foregoing requests for discovery:

On 9 May 2014, Plaintiffs’ counsel contacted Defendant by telephone to confirm that he received the discovery requests. Defendant confirmed his availability for a hearing on these motions but did not make any commitment to responding to the discovery requests.

Plaintiffs have yet to receive any other communication from Defendant or any responses.

III. Discussion

To prevail on a motion to compel responses to discovery, all that a party needs to show is that the discovery requests were properly served, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)

A party is not required to ”meet and confer” before filing a motion to compel discovery responses deem requests for admissions admitted. (See Code of Civil Procedure, § 2030.290(b); see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 404; Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 906; Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393 at p. 395, fn. 4..)

Although no meet and confer is required for this motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order. (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)

A. Motion to Compel Defendant to respond to form interrogatories, sets two and three; supplemental interrogatories

The propounding party may move for an order compelling response to the interrogatories. (Code of Civil Procedure, § 2030.290(b).). If a party to whom interrogatories are directed fails to serve a timely response, the party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Code of Civil Procedure § 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with § 2018.010). (Code of Civil Procedure, § 2030.290(a).)

In this case, Plaintiffs served special and form interrogatories to Defendant on 31 March 2013 but received no responses. Plaintiffs’ discovery requests were reasonable in quantity and essential to investigate the cause of action.

Plaintiffs’ motion to compel Defendant to provide responses to form and special interrogatories is GRANTED. Defendant shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

B. Motion To Compel Defendant To Response To Requests For Production Of Documents, Set Two, Supplemental Requests For Production Of Documents

A demand to produce permits a party to secure from another party access to documents, electronically stored information, land, and other tangible things for inspecting, copying, measuring, testing, photographing, sampling, or surveying. (Code of Civil Procedure § 2031.010.)

The discovering party can make a motion to compel an initial response if the responding party did not serve a response to the demand to produce. (Code of Civil Procedure § 2031.300(b).)

In this case, Plaintiffs served Defendant with discovery requests 31 March 2013 but received no responses from Defendant.

Plaintiffs’ motion to compel Defendant to Plaintiffs’ inspection demand is GRANTED. Plaintiff shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

C. Motion To Deem The Matters Set Forth In Requests For Admissions, Set One And Two Be Deemed Admitted.

In this instant motion, Plaintiffs made their requests for admission to Defendant on 31 March 2013. Defendant has not yet provided a timely response.

The party to whom a request for admission 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. §§ 2033.250, 2033.260.) If the party to whom requests for admissions are directed fails to serve a timely response, the propounding party may move for an order that the truth of any matters specified in those requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The court shall make this order unless it finds that, prior to the hearing on the motion, the responding party served a proposed response that is substantially code-compliant. (Code Civ. Proc., § 2033.280, subd. (c); see also St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778.) There is no time limit for bringing the motion or meet and confer requirement. (See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4, disapproved of on another point by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973; Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584, disapproved of on another point by Wilcox v. Birtwhistle, supra, 21 Cal.4th 973.) The moving party need only show that the discovery was properly propounded and a timely response was not served. (See id.)

If a party fails to serve a timely response to a request for admission, then they waive any objection to the requests, “including one based on privilege or the protection for work product.” (Code of Civil Procedure § 2033.280.) The Court may only relieve the party from this waiver if the following two conditions are met: “(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230; (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Id.)

Plaintiffs’ requests for admissions are relevant, and this instant motion is code compliant. Plaintiffs’ motion to deem matters admitted for set one and set two to Defendant is GRANTED. The matters set forth in the requests are deemed ADMITTED.

D. Monetary Sanctions

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.

The requests of the Plaintiffs for monetary sanctions are very problematic. As support for the requests for monetary sanctions in the motions pertaining to the interrogatories and their requests for production of documents,, Plaintiffs cite Code of Civil Procedure, §§ 2030.290(c), 2031.300(c), and 2030.030.

Code of Civil Procedure, §§ 2030.290(c) and 2031.300(c) provide an entitlement to “a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response. . . .”

However, these sections are inapplicable because Defendant did not oppose the motion. The correct citation of authority would have been 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.”

Plaintiffs also cite Code of Civil Procedure, § 2023.030. This section 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.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

However, under Code of Civil Procedure, § 2033.280(c), “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

The Court will allow four hours of time for the “deem admitted” motion at counsel’s rate of $275 an hour and will allow $90.00 in costs for a total of $1192.00. Defendant is to pay this sum to counsel for Plaintiffs within 20 days of the date of the filing of this Order.

IV. Conclusion

The motions of Plaintiffs to compel Kulwant Singh (“Defendant”) to respond to form interrogatories, sets two and three; supplemental interrogatories; requests for production of documents, set two, supplemental requests for production of documents are GRANTED. Defendant is to provide code compliant responses within 20 days of the date of the filing of this Order.

The motion of Plaintiffs to deem the matters set forth in requests for admissions, set one and two is GRANTED. The matters set forth in the requests for admissions are ADMITTED.

The request of Plaintiffs for monetary sanctions is GRANTED. Defendant is to pay the sum of $1192.00 To Counsel for the Plaintiffs within 20 days of the date of the filing of this Order.