Vigil v. Bethany Ogasian

Vigil v. Ogasian CASE NO. 113CV251546
DATE: 19 September 2014 TIME: 9:00 LINE NUMBER: 15

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

On 19 September 2014, the motion of Defendant Bethany Ogasian (“Defendant”)  to compel Plaintiff to respond to form interrogatories, set one, request for production of documents, set two, and amended special interrogatories, set one, was argued and submitted.[1]

Plaintiff did not file formal opposition to the motion.[2]

I.       Statement of Facts.

The complaint in this matter was filed on 20 August 2013.  An amended complaint was filed on 27 December 2013.  The facts of the complaint seem to allege that Plaintiff’s dog supposedly attacked another dog.  Administrative proceedings were held concerning Plaintiff’s dog.  Plaintiff claims that he was not properly informed of the hearing as well of other violations of civil rights.

II.      Discovery Dispute.

On 25 June 2014, Defendant served upon Plaintiff form interrogatories, set one, request for production of documents, set two, and amended special interrogatories, set one.  Responses would have been due on 30 July 2014.

In a letter dated 8 August 2014, Defendant sent a follow-up letter to Plaintiff asking for responses to the discovery.  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.)

The present motion was filed on 22 August 2014.

III.     Analysis.

A.  Motion to Compel Discovery Responses

To prevail on its motion, 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.)

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.

Defendant has provided proof of service for the discovery in question.  The deadline for the Plaintiff to respond has lapsed and the Plaintiff has not timely responded to any of Defendant’s discovery requests.

Accordingly Defendant’s motion to compel responses to Defendant’s discovery requests is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

         B.  Sanctions.

Plaintiff makes a request for 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 request is not code-compliant.  Notice of the motion does not identify the person, party and attorney against whom the sanction is sought nor does it specify the type of sanction sought.  In fact, the notice of the motion is totally silent on the issue of sanctions.

The request for monetary sanctions is DENIED.

IV.     Order.

Defendant’s motion to compel responses to Defendant’s discovery requests is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

The request for monetary sanctions is DENIED.

 

 

________________­­­____________

DATED:

_________________________­­­________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara

 

[1] 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.”

[2] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

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