Vindicia, Inc. v. Vesuvius Technologies		CASE NO. 112CV230913
DATE: 25 September 2014	TIME: 9:00	LINE NUMBER: 8

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 Wednesday 24 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 September 2014, Plaintiff’s motion to Compel Discover Responses and Sanctions was argued and submitted.[1]

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

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[3]

I.       Statement of Facts.

This matter arises from a contract dispute between Vindicia Inc. (“Plaintiff”) and Vesuvius Technologies, LLC (“Defendant”), in which Plaintiff was to provide services relating to on-line payments to Defendant. Plaintiff claims that Defendant owes $128,000, plus interest and cost of collection.

II.      Discovery Dispute.

The present discovery dispute stems from Plaintiff’s assertion that Defendant did not comply with this Court’s previous Order Granting Plaintiff’s Motion to Compel on 17 April 2014. On 26 June 2014, Plaintiff’s attorney met and conferred with Defendant’s attorney telephonically and Defendant’s attorney represented that he would produce documents within a week. (Klingsporn Decl. ¶ 4.)

On 14 July 2014, Defendant produced some documents, though Plaintiff asserts that the documents were inadequate. (Klingsporn Decl. ¶ 5, ¶ 6, and ¶ 7.) In addition, Defendant has not paid any of the sanctions that were issued on 17 April 2014. (Klingsporn Decl. ¶ 8.)

On 22 July 2014, Plaintiff’s attorney sent a meet and confer letter to Defendant’s attorney, which described the inadequacies of the Defendant’s document production and its written responses. (Klingsporn Decl. ¶ 9.) Plaintiff has yet to receive a response to its 22 July 2014 letter to Defendant. (Klingsporn Decl. ¶ 9)

 

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.)

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.

Plaintiff has provided proof of service for the Request of Production of Documents to the Defendant. The deadline for the Defendant to respond has lapsed and the Defendant has not timely responded to any of Plaintiff’s discovery requests. As Plaintiff has stated, the order dated 17 April 2014 required the Defendant to comply with its response to Plaintiff’s request no later than ten calendar dates after the date of the Order. Not only did Defendant not produce any documents until 14 July 2014, but did not include which documents corresponded to which request.

Plaintiff has also attempted to meet and confer with Defendant’s attorney on a letter from 22 July 2014. There has been no response to Plaintiff’s letter to produce conforming discovery responses.

Accordingly Plaintiff’s motion to compel responses to Plaintiff’s discovery requests is GRANTED.  Defendant 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 and evidentiary sanctions. The request is not code-compliant.

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 Court may impose monetary, evidentiary, contempt or terminating sanctions where a party is engaging in conduct that is a misuse of the discovery process.  (See Code Civ. Pro. § 2023.030).  Misuses of the discovery process include but are not limited to:

(d) Failing to respond or to submit to an authorized method of discovery. (f) Making an evasive response to discovery.   (g) Disobeying a court order to provide discovery. (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made. (Code Civ. Pro. § 2023.010).

“If a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction…lieu of, or in addition to, that sanction, the court may impose a monetary sanction.” (Code Civ. Proc. § 2031.310(i)). “Absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc. § 2031.060(i)).  The exact circumstances in which sanctions may be granted varies based on the type of sanctions.

                              1.            Monetary Sanctions

First of all, the notice of the motion does not identify a party or person against whom sanctions are sought.

In support of the request for sanctions, Plaintiff cites Code of Civil Procedure, § 2023.010(d);(g). Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.

The Court suggests the proper procedure would be to put the following language in the notice of the motion:

“If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules.  If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

                              2.            Non-Monetary Sanctions

Two facts are prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102). Even where these facts are present, however, the trial court has broad discretion in imposing discovery sanctions. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293). In exercising this discretion, the court of appeal has indicated that the trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992).

Additionally, the trial court should “attempt to tailor the sanction to the harm caused by the withheld discovery.” Id.  The Court’s discretionary authority in determining the appropriate sanction is limited by the principle that discovery sanctions are meant to be remedial rather than punitive. (See Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381). Put another way, the discretionary imposition of a sanction is proper when it is suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery sought, but not when it places the prevailing party in a better position than if discovery had been obtained. (See Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958).

Finally, non-monetary sanctions are imposed upon an incremental bases depending upon the severity of the violation. (See Doppes 174 Cal.App.4th at 992). “If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” Id. (internal quotation marks and citations omitted).

In the discovery context, willfulness may be found where the responding party “understood his [or her] obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787).  “A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.” (Id. at 787-788 (citing Snyder v. Sup. Ct., 9 Cal.App.3d 579, 587 (1970).)

In this matter, this Court would have considered terminating sanctions for failure to comply with this Court’s lawful order.  However, the notice of the motion did not contain such a request and therefore this Court cannot grant terminating sanctions.

                              3.            Evidentiary Sanctions

Where evidentiary sanctions are appropriate under the two-part general standard for non-monetary sanctions explained above, the Court may prohibit a party from introducing designated matters in evidence. (See Code Civ. Pro. § 2023.030(c)). 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 evidentiary sanctions. (See Code Civ. Pro. § 2025.450(h)(Regarding evidentiary sanctions where a deponent fails to produce document without valid objection); Code Civ. Pro. § 2025.480(k)(Regarding evidentiary sanctions where deponent fails to answer any question or produce any document).

In the present matter, the Defendant has failed to provide a timely response to a granted order compelling responses to a discovery motion. While the Defendant did produce documents on 14 July 2014, it was produced beyond the required ten calendar days after the date of the Order granted. Failing to provide a timely response to a granted order would permit this Court to impose sanctions on the Defendant.

The sanctions must be proportionate to the conduct that is being sanctioned.  (See McGinty v. Superior Court (6th Dist. 1994) 26 Cal. App. 4th 204, 211).  Strong evidence of the appropriateness of evidentiary sanctions can include: a long history of abuse of process by the non-moving party,continuous willful obstructive conduct by the non-moving party, or egregious interference with the opposing party’s ability to make a case. (See Id. At 212).  The Court should consider the impact of excluding the evidence at trial and the extent to which it prejudices the sanctioned party in determining appropriateness. (See Id. at 212-213).  However, the fact that a sanction is seriously detrimental to the sanctioned party does not itself make an evidentiary sanction inappropriate. (See Pate v. Channel Lumber Co. (1997) 51 Cal. App. 4th 1447, 1455).  This is because the detrimental effects of an evidentiary sanction are incidental to the proper objective of appropriate evidentiary sanctions. (See Id.).

Plaintiff has moved for evidentiary sanctions prohibiting introduction of designated matters. As stated above, the sanctions must be appropriate to the conduct that is being sanction. In the present matter, the sanctions Plaintiff is requesting relates to the requests that the Defendant has failed to reply to. Evidence of the appropriateness of evidentiary sanctions are found in this case: Defendant has failed to comply with the Order granted on 17 April 2014, failing to indicate which documents corresponded to which discovery request, and failing to provide documents that would allow the Plaintiff’s ability to make a case.

However, while Plaintiff has cited appropriate case law that would allow this Court to grant evidentiary sanctions, Plaintiff’s Notice of Motion fails to declare provide notice of its request to terminate sanctions. As stated, Van Sickle is appropriate case law for allowing more severe sanctions. But for providing notice, Plaintiff would have a compelling argument for evidentiary sanctions preventing Defendant from introducing specific evidence.

IV.     Order.

Accordingly, Plaintiff’s Motion to for Order to Compel Discovery Responses is GRANTED.

Furthermore, the evidentiary sanctions requested by Plaintifffor failure to comply with the Court’s order are DENIED.

The request for monetary sanctions in the amount of $1,942.50is DENIED.[4]

 

 

________________­­­____________ 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).

[3] “Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

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