Victor Leon v. Thomas Banks

Leon v. Banks et al. CASE NO. 112CV230166
DATE: 14 November 2014 TIME: 9:00 LINE NUMBER: 2

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 13 November 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 14 November 2014, the motion of Plaintiff Victor Leon to compel response to supplemental form interrogatories, request for production, and request for admissions (all Set One), as well as requests for monetary, issue, and terminating sanctions, was argued and submitted.

Defendants Thomas Allen Banks, V.J. Haavisto Enterprises, Inc. dba Chevron Tow filed a formal opposition to Plaintiff’s motion.

  1. Statement of Facts

This case arises from an automobile versus bicycle accident between Plaintiff, Leon, and Defendants, Banks.

On 29 September 2010, Defendant, Banks, was driving a tow truck in the course and scope of his employment with V.J. Haavisto Enterprises, Inc. dba Chevron Tow, and failed to stop for stopped traffic in front of him. The stopped traffic was a waiting vehicle that had properly yielded to the Plaintiff, Leon, who was riding a bicycle. Defendant subsequently pushed the waiting vehicle into the Plaintiff, causing Plaintiff to sustain bodily injuries that requires shoulder surgery and cervical fusion surgery.

Plaintiff filed this action on 10 August 2012, seeking recovery of compensatory damages. Plaintiff alleges several causes of action: (1) general negligence, (2) motor vehicle negligence, (3) negligent entrustment and (4) respondeat superior.

Defendant, V.J. Haavisto Inc. dba Chevron Tow, answered Plaintiff’s complaint on 15 January 2013, asserting the affirmative defenses of: (1) failing to state a cause of action, (2) action barred by the statute of limitations, (3) indemnification/apportionment of fault, (4) Plaintiff’s assumption of risk, (5) Plaintiff’s comparative negligence, (6) other responsible parties, (7) no notice, (8) Plaintiff’s failure to mitigate damages, and (9) joint and several liability. Defendant, Banks, separately answered Plaintiff’s complaint on 22 March 2013 with the same affirmative defenses as its co-party, V.J. Haavisto Enterprises, Inc. dba Chevron Tow.

  1. Discovery Dispute

On 9 April 2013, Plaintiff served an initial set of Form Interrogatories, and an Inspection Demand and Request for Admissions on Defendant Banks. On 13 May 2013, Defendant Banks served timely, but unverified responses.

On 9 October 2013, Plaintiff sent a “meet and confer” letter to Defendant Banks asking for form interrogatory responses, the missing verifications, and advising about a possible deposition.

On 12 November 2013, Defendants filed and served a “Notice of Association of Counsel,” with new counsel substituting the place of Defendants’ initial counsel.

On 8 August 2014, Plaintiff served Supplemental Interrogatories, Inspection Demand, and Request for Admissions (all Set One) on Defendant Banks. On 27 August 2014, Defendant Banks served timely but unverified responses.

From 5 August 5 2013 until 14 February 2014, Defendants had issued thirty-nine subpoenas using ABI Document Support Services against Plaintiff’s medical providers.

On 14 February 2014, Defendants served Special Interrogatories (Set One) on Plaintiff. On 19 March 2014, Plaintiff served timely, verified responses. On 19 May 2014, Plaintiff served additional responses.

On 31 March 2014, and later on 15 October 2014, the parties had a mediation session without the attendance of the Defendant Banks.

On 4 September 2014, Plaintiff sent another “meet and confer” letter concerning the unverified responses provided, the supplemental discovery requests, and a desire to depose Defendant Banks. On 17 September 2014, Defendants responded in writing and stipulated liability, but failed to adequately respond to Plaintiff’s discovery requests.

III.    Discussion

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).  Unverified responses to are tantamount to no responses at all.  (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

  1. Meet and Confer

There is no requirement that a party is to meet and confer before filing a motion to deem requests for admissions admitted, to compel responses to interrogatories, and to compel responses to a request for production of documents.[1] Accordingly, the Court will reach the merits of the motion.

The parties have met and conferred twice, once via telephone, and another via email. (See Exhs.C, G, H.) The telephone conversation dealt with scheduling depositions, as well as a desire on the part of the Plaintiff that the Defendant Banks be located and instructed to properly respond to the Plaintiff’s Form Interrogatories and Request for Production or Request for Admissions. The brief email correspondence dealt with the lack of verified responses from the Defendant, and again mentions a desire for the Defendant Banks to be located and instructed to adequately respond.

Additionally, the Plaintiff also mentions the client’s medical state. Defendants, now represented by different counsel, remain unaware of Banks’ whereabouts, refuse to recognize that the client requires surgery, and recommends proceeding forward with a new mediator.

  1. Motion to Compel Response to Supplemental Form Interrogatories

Plaintiff moves to compel response to supplemental form interrogatories on the ground that Defendants provided unverified responses that cannot be considered timely.

  1. Legal Standard

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).

To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show that the responding party was properly served with the discovery request or demand 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. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.

  1. Merits of Motion

Here, Plaintiff served the Supplemental Form Interrogatories on 8 August 2014, and Defendants served unverified but otherwise code-compliant responses.

Accordingly, the motion is GRANTED.  Defendants are to provide code compliant and verified responses within 20 days of the date of the filing of this order.

  1. Motion to Request for Production

Plaintiff moves to compel Defendants to provide verified responses to a production request.

  1. Legal Standard

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

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 demand 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. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.)

  1. Merits of Motion

As indicated earlier, this Court finds that the Defendants’ unverified responses are not code-compliant, and thus, cannot be considered timely. Defendants argue that “objections need only be assigned by an attorney,” but this is an incorrect reading of the Code of Civil Procedure § 2031.50, which only permits this under the circumstances of subsection (b), in which the party to whom discovery requests are directed at is a “public or private corporation, or a partnership, or association, or government agency.” (Code Civ. Proc. § 2031.50(b)). The party here is an individual, and does not fall into any of the aforementioned statutory categories.

Accordingly, the motion is GRANTED. Defendants are ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

  1. Motion to Request for Admissions

Plaintiff moves to compel Defendants to provide verified responses to request for admissions (all Set One).

  1. Legal Standard

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).)

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.)

  1. Merits of Motion

The court shall make an order that the truth of any matters specified in requests for admissions be deemed admitted 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 Code Civ. Proc., § 2033.220.)

But Plaintiff did not bring such a motion.  He only brought a motion to compel initial responses, and such a motion is not authorized under either Code of Civil Procedure, § 2033.2980 or 2033.290.

Accordingly, the motion is DENIED, subject to the issue sanctions discussed below.

  1. Sanctions
  2. Monetary Sanctions

California Code of Civil Procedure 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.”  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.

Here, Plaintiff seeks monetary sanctions against Defendants because Defendants have failed to adequately respond to missing discovery requests.

However, Defendants acted with substantial justification since they have admitted liability for the accident.  They are unable to locate their client, a point which plaintiff does not dispute.

  1. Issue Sanctions

Where non-monetary sanctions are appropriate, “the court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.” (Cal. Civ. Proc. § 2023.030(b)).  “The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Id.).  Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including issue sanctions. (See Code Civ. Pro. § 2030.300(e) (Regarding issue sanctions in the case of motions for further responses to interrogatories) Code Civ. Pro. § 2031.300(c) (Regarding issue sanctions in the case of motions for demands for inspection); Code Civ. Pro. § 2025.450(h) (Regarding issue sanctions where a deponent fails to produce document without valid objection); Code Civ. Pro. § 2025.480(k) (Regarding issue sanctions where deponent fails to answer any question or produce any document).

But each case is to be decided on its own merits, the sanctions imposed must not go beyond those necessary to further the purposes of discovery; i.e. to compel disclosure and to compensate for costs incurred in enforcing discovery. In short, the “punishment must fit the crime!” (Reedy v. Bussell (2007) 148 Cal. App.4th 1272, 1293.)  “The purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of trial on the merits, but rather to prevent abuse of the discovery process and correct the problem presented.”  (Do v. Superior Court (2003) 109 Cal.App.4th 1210, 1213.)

Here, while the Defendants failed to provide verified responses and did not make an effort to locate a person of great significance to the suit, Mr. Banks, they did offer to stipulate to liability. Since Defendants do not deny liability, and because Defendants failed to provide adequate responses to Plaintiff’s discovery requests, issue sanctions are appropriate.

Accordingly, Plaintiff’s request for issue sanctions is GRANTED.  Defendants had stipulated to liability in case may proceed to trial on causation of injuries and the nature and extent of the claimed injuries.

  1. Terminating Sanctions

Code of Civil Procedure, § 2023.030(d) states that: “the Court may impose terminating sanctions by: [an] order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process… [an] order staying further proceedings by that party until an order for discovery is obeyed…[an] order dismissing the action, or any part of the action, of that party…[or an] order rendering a judgment by default against that party. (Code Civ. Pro. § 2023.030(d)).  Where a party fails to comply or fails to provide a timely response to a granted order compelling responses to a discovery motion, the Court may impose sanctions including terminating sanctions. (See Code Civ. Pro. § 2030.300(e) (Regarding terminating sanctions in the case of motions for further responses to interrogatories); Code Civ. Pro. § 2025.450(h) (Regarding terminating sanctions where a deponent fails to produce document without valid objection); Code Civ. Pro. § 2025.480(k)(Regarding terminating sanctions where deponent fails to produce any document).

However, ordering terminating sanctions is not an action this Court can undertake without careful consideration; and only in circumstances where a violation is willful, preceded by a history of abuse and the evidence shows that a less severe sanction would not produce compliance with the discovery rules.  (See Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516 (Granting terminating sanctions where a lawyer failed to respond to numerous special interrogatories and demands for production of documents, failed to respond to motion to compel discovery, failed to obey a court order to provide discovery, and failed to respond to demands for production even after filing motion for relief from default.). Where these conditions are met, the Court is justified in ordering terminating sanctions.  (See id.)

Here, the Plaintiff seeks to strike out the pleadings of the Defendant’s via terminating sanctions. The present circumstances do not appear to rise to the severe level of Van Sickle v. Gilbert.

After careful consideration, this Court deems terminating sanctions inappropriate under the circumstances. Accordingly, Plaintiff’s request for terminating sanctions is DENIED.

 

 

 

 

 

 

 

 

 

 

 

  1. Conclusion and Order

Accordingly, Plaintiff’s motion to compel response to supplemental form interrogatories is DENIED, while Plaintiff’s motions to request for production and to request for admissions are GRANTED.

Accordingly, the issue sanctions requested by Plaintiff for failure to comply with the interrogatory request, production request, and request for admissions are GRANTED.

Accordingly, the terminating sanctions requested by Plaintiff for failure to comply with the interrogatory request, production request, and request for admissions are DENIED.

The request for monetary sanctions in the amount of $3,060.00 is DENIED as Defendants acted with substantial justification.[2]

This Court realizes that plaintiff is entitled to profound discovery on the issue of affirmative defenses therefore encourages the parties to meet and confer on which discovery responses are now relevant to the remaining issues in the case and how the responses should be verified.

 

 

________________­­­____________

DATED:

_________________________­­­________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara

[1] 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. 4th 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.”)

[2] See “Civil Discovery Sanctions in California Courts–“The 3:10 to Discoveryville”  http://www.abtl.org/report/nc/abtlnorcalvol23no1.pdf

Print Friendly, PDF & Email
Copy the code below to your web site.
x 

Leave a Reply

Your email address will not be published. Required fields are marked *