V. Diaz v. E. Perales		CASE NO. 113CV257136
DATE: 1 August 2014	TIME: 9:00	LINE NUMBER: 14

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 31 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 1 August 2014, the motion of plaintiff Venessa Diaz (“Diaz”) to compel a further response to form interrogatories, set one, No. 17.1 (“FI”) and for monetary sanctions was argued and submitted. Defendant Elias Perales (“Perales”) filed a formal opposition to the motion, in which he requests monetary sanctions.

Statement of Facts

This personal injury action arises from a domestic dispute between Diaz and her ex-husband, Perales. In her complaint, Diaz alleges the following: Between 1998 and 2011, the parties had a romantic relationship, resulting in marriage and several children. (Compl., p.1:24-25.) Throughout the course of their relationship, Perales would habitually throw physical objects at Diaz, slap her, and engage in nonconsensual sexual intercourse with her. (Compl., p. 2:1-10.)

In her complaint, Diaz asserts four causes of action against Perales for (1) domestic violence under Civil Code section 1708.6, (2) assault, (3), battery, and (4) intentional infliction of emotional distress.

Discovery Dispute

On 17 February 2014, Diaz served requests for admissions, set one (“RFA”) and the FI on Perales. Perales provided responses to both sets of discovery requests on 23 April 2014. The responses to the FI and RFA consisted solely of substantive responses.

On 13 May 2014, Diaz’ counsel sent a meet and confer letter to Perales’ counsel, raising several perceived deficiencies with the responses to the FI. On 19 May 2014, Perales served supplemental responses.

Dissatisfied with these responses, Diaz initiated further meet and confer efforts. Despite a number of discussions, the parties were unable to resolve their disagreements. Consequently, on 30 June 2014, Diaz filed this motion to compel a further response to FI No. 17.1. Perales filed his opposition on 18 July 2014.

Discussion

I. Motion to Compel a Further Response to FI No. 17.1

Diaz moves to compel a further response to FI No. 17.1 on the grounds that Perales’ substantive responses are incomplete and evasive.

               A. Legal Standards

A party propounding interrogatories may move for an order compelling further responses if that party deems a response evasive or incomplete. (Code Civ. Proc., §2030.300, subd. (a).) The statute does not require any showing of good cause in support of a motion.  (See Code Civ. Proc., § 2030.300; see also Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

B. Analysis

FI No. 17.1 asks for: (a) the identification of all responses to the RFA that are not unqualified admissions; (b) all facts on which an identified response is based; (c) all persons with knowledge of those facts; and (d) all documents that support an identified response. Perales responded to FI No. 17.1 by listing his substantive responses relative to RFA Nos. 1-7, 9, and 12-20, and providing information about each RFA for subparts (b)-(d).

Diaz contends that Perales’ responses to subparts (b) and (d) of FI No. 17.1 as related to RFA Nos. 1-7, 9, and 12-20 are incomplete and evasive.

1. RFA Nos. 1-7, 12-14, 16, 18, and 20

RFA Nos. 1-7, 12-14, 16, 18 and 20 asked Perales to admit that he has placed his hands around Diaz’s neck (RFA No. 1), attempted to kick open the door (RFA No. 2), thrown an object at Diaz (RFA No. 3), attempted to commit suicide (RFA No. 4), run onto U.S. Highway 101 (RPD No. 5), attempted to throw Diaz to the ground (RFA No. 6), sold illegal drugs (RFA No. 7), received a gunshot wound (RFA No. 12), battered at least one person (RFA No. 13), assaulted at least one person (RFA No. 14), possessed a firearm (RFA No. 16), threatened to kill Diaz (RFA No. 18), and violated Penal Code section 261.5[1] (RFA No. 20). Perales responded by denying the RFA in their entirety. He responded to FI No. 17.1 subparts (b) and (d) with regard to RFA Nos. 1-7, 12-14, 16, 18 and 20 by stating “Not applicable. Allegations did not occur.”

Diaz argues that the responses to subparts (b) and (d) are incomplete and evasive because Perales did not provide any facts or identify documents on which he bases his denials, or indicate that no such facts or documents exist. In opposition, Perales contends that he is incapable of providing any facts or identifying documents in support of “something that didn’t happen.” (See Opp’n., p. 6:19-20.) He further asserts that the statute of limitations has expired, and, consequently, the information sought is irrelevant.

With regard to Perales’ first argument, an interrogatory response must be as complete and straightforward as the information available to the responding party admits. (Code Civ. Proc., § 2030.220, subd. (a).) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, the party shall so state, but shall make a reasonable and good faith effort to obtain the information. (Code Civ. Proc., § 2030.220, subd. (b).)

Here, Perales’ response that FI 17.1, subparts (b) and (d) are relatively straightforward. He indicates that none of the allegations occurred and, by implication, no facts or documents exist concerning these allegations. Accordingly, his response is not incomplete or evasive.

With regard to his second argument concerning the relevance of the information sought, objections must be asserted in the initial response to written interrogatories to avoid waiver. (See Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 273.) Here, Perales raises his relevance objection for the first time in his opposition to this motion to compel. As he did not raise the objection in his initial response to the FI, the objection on the ground of relevance is waived.

In sum, Perales’ response to subparts (b) and (d) of FI No. 17.1 as related to RFA Nos. 1-7, 12-14, 16, 18 and 20 are not incomplete and evasive. Accordingly, Diaz’ motion to compel a further response to FI No. 17.1 as it pertains to RFA Nos. 1-7, 12-14, 16, 18 and 20 is DENIED.

2. RFA Nos. 9, 15, and 19

RFA Nos. 9, 15 and 19 asked Perales to admit that he personally knows at least one person who has been accused by the police of murder (RFA No. 9), one person who has been accused by the police of the sale of illegal drugs (RFA No. 15), and people who have been in prison (RFA No. 19). Perales responded to each RFA by stating that he “[c]annot admit or deny because [he] has seen numerous people in the paper who were accused of various crimes including murder and drug dealings.” He responded to FI No. 17.1 subparts (b) and (d) with regard to RFA Nos. 9, 15, and 19 by stating “Not applicable. Allegations did not occur.”

Diaz argues that the responses to subparts (b) and (d) are incomplete and evasive because Perales did not provide any facts or identify documents on which he bases his response, or indicate that he lacks personal knowledge to respond. Her argument is persuasive.

Perales’ responses to RFA Nos. 9, 15, and 19 suggest that he has some knowledge of people in prison and/or accused by the police of murder and the sale of illegal drugs. His responses further indicate that he has seen these people in the paper. Thus, it is readily apparent from his responses to RFA Nos. 9, 15 and 19 that at least some facts or documents may exist on which he bases his responses.[2] If he does not have personal knowledge of these facts or documents, he must affirmatively state that he does not have knowledge sufficient to fully respond. (See Code Civ. Proc., § 2030.220, subd. (b).) Here, Perales has not provided any facts on which he bases his responses to RFA Nos. 9, 15, and 19 or unambiguously stated that he does not have personal knowledge sufficient to respond. As such, his response to subparts (b) and (d) of FI No. 17.1 as related to RFA Nos. 9, 15, and 19 are incomplete and evasive. Accordingly, Diaz’ motion to compel a further response to FI No. 17.1 as it pertains to RFA Nos. 9, 15, and 19 is GRANTED.

                        3. RFA No. 17

RFA No. 17 asked Perales to admit that he pled no contest to violating Penal Code section 415. Perales responded by stating: “Deny as Defendant pled not [sic] contest to an infraction of disturbing the peace.” He responded to FI No. 17.1 subpart (b) with regard to RFA No. 17 by stating “Not applicable. Allegations did not occur.”

Penal Code section 415 is entitled “Disturbing the Peace” and specifies a punishment of imprisonment in a county jail and/or a fine of up to $400, for unlawfully fighting or challenging a person to fight in a public place, maliciously and willfully disturbing another person by loud and unreasonable noise, or for using offensive words in a public place which are inherently likely to provoke an immediate violent reaction.

Here, Perales’ response to RFA No. 17 is unclear. He appears to deny that he pled no contest to a charge of disturbing the peace under Penal Code section 415, while indicating that he did, in fact, plead no contest “to an infraction of disturbing the peace.” Given the ambiguous nature of this denial, it is readily apparent that some facts or documents must exist to explain this ostensible inconsistency. Thus, as Perales’ response to FI No. 17.1 subpart (b) does not provide any facts or identify any documents on which he bases his denial of RFA No. 17, the response is incomplete and evasive. Accordingly, Diaz’ motion to compel a further response to FI No. 17.1 as it pertains to RFA No. 17 is GRANTED.

II. Requests for Monetary Sanctions

Both parties request monetary sanctions pursuant to Code of Civil Procedure section 2030.300(d), which provides that the court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories unless the party or attorney acted with substantial justification or other circumstances make the imposition of a sanction unjust.

            A. Diaz’ Request for Monetary Sanctions

Diaz makes a request for monetary sanctions in the amount of $1,700 against Perales for unsuccessfully opposing her motion to compel.

Here, Perales was partially successful in opposing the motion to compel. Thus, Perales acted with substantial justification. Accordingly, Diaz’ request for monetary sanctions is DENIED.

 

            B. Perales’ Request for Monetary Sanctions

Perales makes a request for monetary sanctions in the amount of $2,000 against Diaz for unsuccessfully making a motion to compel. Here, Diaz was partially successful in making the motion to compel. Therefore, she acted with substantial justification. Accordingly, Perales’ request for monetary sanctions is DENIED.

Conclusion and Order

Diaz’s motion to compel further responses to the FI is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to FI No. 17.1 as it pertains to RFA Nos. 1-7, 12-14, 16, 18 and 20. The motion is GRANTED as to FI No. 17.1 as it pertains to RFA Nos. 9, 15, 17 and 19. Accordingly, within 20 calendar days of the filing of this Order, Perales shall serve verified code-compliant responses, without objection, to FI No. 17.1 as it pertains to RFA Nos. 9, 15, 17 and 19.

Diaz’ request for monetary sanctions is DENIED.

Perales’ request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

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