Steven Hartmeier v. Producepoint.com, et al.		CASE NO. 113CV239638
DATE: 29 August 2014	TIME: 9:00	LINE NUMBER: 8

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

On 8 August 2014, the motion[1] of Plaintiff Steven Hartmeier to compel responses to requests for production of documents, interrogatories, requests for admission and for monetary sanctions was argued and submitted.  Defendants NGB Markets, Inc. and Rock Clapper filed formal opposition to the motion.[2]

Plaintiff is reminded that Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”  Lumping all of the discovery requests under the tab labeled “Exhibit A” is confusing, distracting and cumbersome when looking for individual discovery requests.

According to the motion, the parties upon whom the discovery was served is also confusing.  The discovery is directed to “Defendant Producepoint.com, Inc.,” to “Defendant NGB Markets,” and to “defendants Rock Clapper.” Defendants have identified themselves as “NGB Markets, Inc. (erroneously served as “Producepoint.com dba NGB Markets” and “Defendant “Rock Clapper.”   Plaintiff seeks discovery against a third purported defendant, Producepoint.com.[3]  The Court will entertain argument as to Producepoint’s status as a defendant, but will otherwise deny any motion as to it.

I.       Background

This matter arises out of an alleged breach of contract. Plaintiff alleges that he entered into negotiations with Defendants for employment. Plaintiff alleges that Defendant claims that Defendant corporation was licensed and in good standing. Plaintiff then alleges that Defendants failed to pay him all that he earned.

II.      Discovery Dispute

On 12 March 2014, Plaintiff propounded upon the following Defendants the following discovery( moving papers, Exhibit A):

• Producepoint.com, Inc.: form interrogatories, set one; special interrogatories, set one; request for production of documents, set one.
• NGB Markets: form interrogatories, set one, special interrogatories, set one, requests for production of documents, set one
• Rock Clapper: form interrogatories, set one; requests for admission, set one;  requests for production of documents, set one; and special interrogatories, set one.

On 4 April 2014, Plaintiff granted an extension to respond until 30 April 2014 (Exhibit B.)

In a letter dated 1 May 2014, Plaintiff indicated that the time within which to respond had expired and at the responses were thus untimely which waved the objections if any.  (Exhibit C.)

On 5 May 2014, Defendants responded to the discovery with unverified responses and objections.  (Exhibit D.)  These responses appear to be unverified.

On 28 July 2014, after multiple communications between counsel that left issues unresolved (Exhibits F-I), Plaintiff filed the instant motion to compel responses.

III.     Analysis

The parties have a fundamental of this agreement on the nature of the appropriate motions.  Defendant believes that this motion should be a motion to compel further responses.  Therefore, it is untimely because it was not brought within 45 days of the service by Defendants of the responses.

However, 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).  Since Defendants did not verify their responses, they are effectively unverified.  Unverified responses to are tantamount to no responses at all.  (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

If no responses have been made to interrogatories, requests for production of documents and requests for admissions, the meet and confer rule “does not come into play, and compliance therewith is not a prerequisite to a motion to compel answers.”  (Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 906; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4^th 390, 404; McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289: “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.”)

         A.  Motion to Compel Responses to Requests for Admission

Plaintiff cites no authority, and the Court has found none, for any motion to compel initial responses to Requests for Admission.[4] Insofar as Plaintiff makes such a motion, it is DENIED.

Plaintiff’s motion to compel responses to Requests for Admission is DENIED.

         B.  Motion to Compel Responses to Requests for Production of Documents and Interrogatories

A demand to produce documents may be propounded upon an adverse party in an attempt to seek relevant information. Code Civ. Proc. § 2031.010. Absent an extension granted by counsel, a party must respond to each request for the production of documents within 30 days, unless the propounding party grants an extension. Code Civ. Proc. § 2031.260. A code-compliant response states that the responding party will comply fully, comply partially while stating a valid reason for not fully complying, or that party will not comply while stating a valid reason for not fully complying. Code Civ. Proc. § 2031.220; Code Civ. Proc. § 2031.230. A party may seek a motion to compel production when the adverse party fails to respond to the request for production in a timely fashion. Code Civ. Proc. § 2031.300(b).

A demand to answer interrogatories may be propounded upon an adverse party. Code Civ. Proc. §2030.010. Absent an extension granted by counsel, a party must respond to each interrogatory within 30 days, unless the propounding party grants an extension. Code Civ. Proc. §2030.260. A party making an untimely response waives all objections in that response. Code Civ. Proc. §2030.290(a). A code-compliant response must be as complete and straightforward as the information reasonably available to the party permits. Code Civ. Proc. §2030.220. If a party lacks personal knowledge to provide complete information, that party shall so state, but shall also make a reasonable and good faith effort to obtain such information. Code Civ. Proc. §2030.220(c). A party may seek a motion to compel responses when the adverse party fails to respond to the demand within the timeframe specified by statute or extension. Code Civ. Proc. §2030.290(a).

When making a motion to compel responses to interrogatories or demands to produce, there is no obligation upon any party to meet and confer. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2d Dist. 2007) 148 Cal.App.4th 390, 404. See Code Civ. Proc. §§2030.290(b), 2031.300(b) (no mention of a requirement to meet and confer); cf. Code Civ. Proc. §§2030.300(b), 2031.310(b)(2).

Defendant asserts that the motions before the Court should have been motions to compel further responses. It bases this claim on the fact that it served some responses after the deadline to serve. This misstates the standard. To avoid a motion to compel initial responses, responses must have been served timely. Defendant does not contest Plaintiff’s assertion that Defendant’s responses were untimely. What responses Defendant served were solely objections, which are waived by operation of law, and unverified. An order to compel is appropriate.

Plaintiff’s motions to compel responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Production of Documents, Set One are GRANTED as to Defendants NGB Markets, Inc. and Rock Clapper. It is DENIED as to Producepoint.com, as there is nothing presently in the Court record indicating it is a Defendant. Defendants NGB Markets, Inc. and Rock Clapper will serve verified, code-compliant responses without objection within 20 days of the date of this order.

         C.  Request for Monetary Sanctions

Plaintiff makes a request for monetary sanctions against Defendant[5].  The request is code-compliant.

In support of the request for sanctions, Plaintiff cites Code of Civil Procedure §§ 2023.010, 2023.030 2023.290(c), and 2031.300(c).Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Next, 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. (emphasis added)”  As such, section 2023.030 does not provide an independent basis for an award of sanctions and thus is not self-executing.  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.

Section 2030.290(c) authorizes the Court to grant sanctions against a party who fails to timely respond to interrogatories. Section 2030.300(c) contains similar language for failure to respond timely to document requests.

Plaintiff’s counsel asserts that his hourly rate is $250.00. This is a reasonable rate in Santa Clara County.

He asserts that he spent 5.5 hours on the instant motion. The motion was only partially successful, particularly in reference to the request for admissions, and the Court believes this motion should have taken at most 3 hours. The Court will award sanctions in that amount.

Plaintiff’s counsel also declares that he paid a filing fee of $60.00 to file the instant motion. This is an appropriate cost to reimburse.

Plaintiff’s request for monetary sanctions is GRANTED IN PART. Defendants NGB Markets, Inc. and Rock Clapper shall pay $810.00 to Plaintiff’s counsel within 20 days of the date of this order.

IV.     Conclusion and Order

Plaintiff’s motion to compel responses to Requests for Admission is DENIED.

Plaintiff’s motions to compel responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Production of Documents, Set One are GRANTED as to Defendants NGB Markets, Inc. and Rock Clapper. It is DENIED as to Producepoint.com, as there is nothing presently in the Court record indicating it is a Defendant. Defendants NGB Markets, Inc. and Rock Clapper will serve verified, code-compliant responses without objection within 20 days of the date of this order.

Plaintiff’s request for monetary sanctions is GRANTED IN PART. Defendants NGB Markets, Inc. and Rock Clapper shall pay $810.00 to Plaintiff’s counsel within 20 days of the date of this order.

 

 

________________­­­____________ DATED:

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

 

[1] Defendant argues that the matter before the Court should have been filed as five separate motions. The Court tends to discourage such action as it raises costs and paperwork, while also draining judicial resources to review each motion.

[2] Plaintiff argues that Defendant’s opposition was filed late. Defendant’s opposition was filed 18 August 2014, nine court days before the hearing. See Code Civ. Proc. §1005. The proof of service attached indicates service via mail on that date. The opposition was filed timely.

[3]  See Exhibit F: “No Responses on behalf of Defendant ProducePoint.com, Inc. DefendantProducePoint.com, Inc. fails to provide any responses to Plaintiff’s Special Interrogatories, Judicial Council Interrogatories, and Document Demands.”  The same was Reese Pete at in Plaintiff’s letter of 14 July 2014 (Exhibit G.)

[4] Code of Civil Procedure, § 2033.280 is the authority for a motion to deem that matters specified in requests for admissions be deemed as admitted.  Code of Civil Procedure, § 2033.290 is authority for a motion to compel further responses.

[5] Plaintiff’s memorandum of points and authorities references that he seeks sanctions against Defendant’s counsel, but that was not indicated in the notice of motion and therefore the Court will not consider sanctions against counsel. See Code Civ. Proc. §2023.040.