On 14 March 2014, the motion of Defendant Carolyn Rodriguez (“Defendant”), to compel further responses to Special Interrogatories and Requests for Production of Documents and for monetary sanctions was argued and submitted. Plaintiff, Vincent Kilduff (“Plaintiff”) filed a formal opposition to this motion.

I. Background

In this case, Plaintiff has brought an action alleging the non-payment of attorney fees for services rendered in connection with Defendant’s marital dissolution proceedings. Defendant defends against this claim, alleging that Plaintiff failed to perform pursuant to the fee arrangements between the parties.

Discovery Dispute

On 20 June 2013, Defendant served Special Interrogatories, Set One, and Request for Production of Documents, Set One, on Plaintiff. Plaintiff did not serve timely responses. In July of 2013, Defendant filed a motion to compel discovery.

On 04 September 2013, Plaintiff had mailed his answers to Special Interrogatories and responses to the Request for Production of Documents. (See Declaration of David Kraft, Exh. C.)

On 06 September 2013, this Court entered an order compelling Plaintiff to respond to Defendant’s Special Interrogatories, Set One, and Request for Production of Documents, Set One. Plaintiff did not file an opposition to Defendant’s motion heard on 06 September 2013.

Plaintiff never corrected or amended the answers to Special Interrogatories and/or responses to the Request for Production of Documents.

On 10 October 2013, Defendant sent a letter to counsel for Plaintiff, requesting supplemental responses to her Special Interrogatories and Request for Production of Documents.

On 16 October 2013, counsel for Plaintiff responded to Defendant’s October 10, 2013 letter clarifying some of the outstanding discovery issues. Plaintiff did not provide verifications for the letter responses sent to Defendant.

On 24 January 2014, Defendant filed a motion to compel a further response to her discovery requests.

II. Discussion

Defendant has filed a motion to compel a further response to Special Interrogatories and Request for Production of Documents, which Defendant first served on 20 June 2013.

A. Defendant’s Failure to Comply with Code of Civil Procedure § 2030.300.
B.
Pursuant to Code of Civil Procedure § 2030.300(c), notice for a motion to compel a further response, must be given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.

Here, Defendant has not complied with Code of Civil Procedure § 2030.300(c). An order was entered in Defendant’s favor to compel Plaintiff to serve discovery responses on September 6, 2013. Those discovery responses were mailed two days before the September 6, 2013 Order to Defendant’s home address. Defendant filed her motion well past the 45 days permitted by the Code of Civil Procedure. Defendant makes a claim that the responses to her discovery were not properly served. The Court has not found anything improper with Plaintiff’s service by way of mail, sent on September 4, 2013. (See, Declaration of David Kraft, Exh. C.)

However, the parties attempted to meet and confer to resolve the outstanding discovery issues after an order to compel responses were orderd. Defendant sent a letter requesting supplemental responses on October 10, 2013. Plaintiff responded also with a letter, clarifying some of Plaintiff’s responses on October 16, 2013. The letter response was not accompanied with a verification. Plaintiff’s unsworn responses are tantamount to no responses at all. Appleton v. Superior Court, (1988) 206 Cal.App.3d 632, 636.

C. Defendant’s Failure to Provide a Separate Statement.
D.
Defendant has failed to provide a separate statement in her motion to compel further responses. Rules of Court, rule 3.1345(a)(2), requires a motion to compel further responses to have a separate statement.

There is no sanction specified for failure to comply with Rule 3.1345; however, in Neary v. Regents of University of California, (1986) 185 Cal.App.3d. 1136, 1145, (overturned on other grounds) approved a trial court’s dropping of a motion upon moving party’s failure to separately set out questions.

Although the failure to submit a separate statement under Rule 3.1345 may be a ground to deny a motion to compel, the lack of a separate statement does not preclude the Court from assessing the merits of the case. Mills v. U.S. Bank, (2008) 166 Cal.App. 4th 871, 894.

E. Plaintiff’s Responses to Defendant’s Propounded Discovery.
F.
In a situation where a supplemental response is served after a motion to compel responses is filed, the court has substantial discretion to decide how to rule on the motion. (See Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 409.) For example, the court might grant the motion if the supplemental response is not code-compliant, deny the motion as moot, take the matter off-calendar, or order the parties to meet and confer. (Id.)

Plaintiff mailed his responses on September 4, 2013, with the hearing date for the motion held on September 6, 2013. Plaintiff’s answers contained numerous objections, a few answers, and many answers that requested Defendant to search through the Case File No. 1-05-FL-133958 pursuant to Code of Civil Procedure 2030.230.

For example, Defendant’s Special Interrogatory (SI) No. 8, requests Plaintiff to “[d]escribe reasons for not requesting imputation of income on Defendant’s ex Husband equal to his W2 and 1099 earnings at time of marriage separation.” (See Declaration of Robert Kraft, Exh. A.) Plaintiff’s responded with “[o]bjection, vague, ambiguous, and objectionable because the interrogatory is not complete in and of itself, requiring plaintiff to locate, interpret, and refer to other documents in order to ascertain the interrogatory content. However, without waiving said objections, pursuant to Code of Civil Procedure § 2030.230, plaintiff directs defendant to the Post-trial Brief filed on July 23, 2012 in Case No. 1-05-FL-133958.”

The Court was not satisfied with Plaintiff’s responses, to Special Interrogatories and Request for Production of Documents. Had the Court been satisfied with those responses, those responses would have mooted the motion to compel a response. Thus, the Court adopted the tentative ruling as its order which granted Defendant’s request for an order compelling a response within 20 days of the filing of the order and without any objections.

Plaintiff decided to rely on the responses, which were mailed to Defendant on September 4, 2013 as though those responses were in compliance with the September 6, 2013 Order. Those responses were not compliant with the September 6, 2013 Order, because they contained objections.

Plaintiff’s unverified responses in letter form sent on October 16, 2013 were the type of responses in line with this Court’s September 6, 2013 Order. However, as noted earlier, those responses were never verified.

G. Application of Code of Civil Procedure § 2030.290(c).
H.
Defendant’s motion to compel further responses is improper at this time. From a technical sense, Plaintiff’s responses that were mailed to Defendant on September 4, 2013, constitutes a response. In a situation, where a response has been served, but the propounding party is not satisfied with the response, the propounding party may make a motion to compel a further response pursuant to Code of Civil Procedure § 2030.300. However, Defendant did not comply with Code of Civil Procedure § 2030.300(c), requiring her to file a motion to compel within 45 days of the receipt of the responses. For this reason and the lack of separate statement Defendant’s motion to compel a further response is DENIED.

However, this Court cannot in good conscience ignore the fact that Plaintiff has failed to comply with a previously issued Court Order. The September 6, 2013 Order specifically states that, “Plaintiff will serve answers without objections, within 20 days of this order.” Plaintiff has failed to serve answers without objections.

Pursuant to Code of Civil Procedure § 2030.290(c), when a party “fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” An order based on Code of Civil Procedure § 2030.290(c), is more appropriate under the circumstances of this case, than an order based on Code of Civil Procedure § 2030.300. In lieu of sanctions, a just order would be an order which would enforce the provisions of the September 6, 2013 Order.

Defendant’s motion to compel a response to Special Interrogatories and Requests for Production of Documents is GRANTED. Plaintiff shall serve responses to Special Interrogatories and Requests for Production of Documents, without objections and within 20 days of the filing of this Order. Plaintiff must also include verifications with his response.

I. Monetary Sanctions.
J.
Both parties make a request for monetary sanctions.

Defendant is not entitled to any monetary sanctions, because Defendant is not an attorney and not entitled to reasonable attorney’s fees. Nor is Defendant entitled to an off-set of the attorney’s fees, which is the subject matter of this litigation.

However, Defendant is entitled to the actual costs she incurred in the filing of this motion. See Witte v. Kaufman (2006) 141 Cal. App. 4th 1201. While she did pay the $60 filing fee for the motion, it does not appear that she paid the $30 court reporter fee. The Court will award $60 to be paid by Plaintiff to Defendant within 20 days of the date of the filing of this Order.

Plaintiff is not entitled to monetary sanctions, because Plaintiff did not substantially prevail in opposing this motion.