Kilduff v. Rodriguez		CASE NO. 113CV241072
DATE: 11 July 2014	TIME: 9:00	LINE NUMBER: 10

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

On 11 July 2014, the motion of defendant Carolyn Rodriguez (“Defendant”) for the issuance of discovery sanctions, and to compel further responses to special interrogatories and to requests for production of documents was argued and submitted. Plaintiff Vincent J. Kilduff (“Plaintiff”) filed a formal opposition to the motion.

Statement of Facts

Plaintiff alleges that Defendant failed to pay for his legal services rendered in connection with Defendant’s marital dissolution proceedings.  Defendant contends that Plaintiff failed to perform pursuant to the fee arrangements between the parties.

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

On 04 September 2013, Plaintiff mailed his responses to Defendant’s Special Interrogatories, Set One, and Request for Production of Documents, Set One.

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 correct or amend his responses to the discovery, and 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.

After Plaintiff’s counsel responded with a letter and unverified responses to some discovery, on 24 January 2014, Defendant filed a motion to compel further responses to her discovery requests.

On 14 March 2014, this Court entered an order compelling Plaintiff’s further responses to Defendant’s Special Interrogatories, Set One, and Request for Production of Documents, Set One within 20 days of the filing of the order.[1]

On April 10, 2014, Plaintiff provided supplemental responses to Defendant’s Special Interrogatories, Set One, and Request for Production of Documents, Set One without objections and with verifications.

On 27 May 2014, Defendant contacted counsel for Plaintiff requesting a meet and confer appointment.

On 2 June 2014, Defendant filed the instant motion.

Discussion

I.             The motion is not timely.

As stated in this Court’s prior order of 14 March 2014, pursuant to Code of Civil Procedure § 2030.300, subdivision (c), and Code of Civil Procedure §2031.310, subdivision (c), a notice for a motion to compel a further response to interrogatories and requests for production of documents must be given within 45 days of the service of the response, or any supplemental response, or the propounding party waives any right to compel a further response to such discovery.

This Court’s 14 March 2014 order stated that Defendant’s failure to so file the motion in violation of these code sections was a potential basis for denying Defendant’s motion.  (See 14 March 2014 order, p.3, § II, subsection D.)  Instead, this Court granted the motion because it “cannot in good conscience ignore the fact that Plaintiff has failed to comply with a previously issued Court Order… [namely that] Plaintiff has failed to serve answers without objections.”

Here, despite this Court’s prior admonition, Defendant contacted counsel for Plaintiff two days after the 45-day period expired.  Subsequently, Defendant filed the instant motion eight days after the 45-day period expired, supported by a 25-page memorandum, in violation of Rule of Court 3.1113, subdivision (d).[2]  The memorandum did not include a table of contents, table of authorities or opening summary of argument, in violation of Rule of Court 3.1113, subdivision (f).[3]  Throughout the motion, Defendant cites to numerous sections of the Discovery Act, but does not address her own repeated noncompliance with sections 2030.300, subdivision (c), and 2031.310, subdivision (c).

Unlike the situation resolved by the Court’s 14 March 2014 order, Plaintiff has served supplemental responses to Defendant’s Special Interrogatories, Set One, and Request for Production of Documents, Set One without objections and with verifications.

Here, Defendant’s failure to timely file the instant motion, despite being warned of the potential consequences, is fatal to her motion.  Defendant’s motion to compel further responses to Defendant’s Special Interrogatories, Set One, and Request for Production of Documents, Set One is DENIED.

II.            Defendant’s Request for Sanctions

Defendant also requests evidentiary, issue and terminating sanctions for Plaintiff’s failure to provide adequate supplemental responses to Defendant’s Special Interrogatories, Set One, and Request for Production of Documents, Set One.  However, Defendant did not prevail on her motion.  Accordingly, Defendant’s request for evidentiary, issue and terminating sanctions is DENIED.

Conclusion and Order

Defendant’s motion to compel further responses to Defendant’s Special Interrogatories, Set One, and Request for Production of Documents, Set One is DENIED.

Defendant’s request for evidentiary, issue and terminating sanctions is DENIED.