Casa Del Valle Homeowners’ Ass’n vs. Diamond CASE NO. 107CV099053
DATE: 6 June May 2014 TIME: 9:00 LINE NUMBER: 1

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 5 June 2014. Please specify the issue to be contested when calling the Court and counsel.
On 6 June 2014, the motion of Defendant and Cross-Complainant Arlyne M. Diamond, Ph.D. to Plaintiff and Cross-Defendant Casa Del Valle Homeowners Association to compel responses to Special Interrogatories, set seven (“SI”), and Inspection Demand, set five, and for Monetary Sanctions was argued and submitted.
In a separate motion, Defendant/Cross-Complainant Diamond seeks terminating sanctions, issue sanctions and/or monetary sanctions for the failure to comply with lawful Court orders of 9 December 2011 and 13 December 2013.

Cross-Defendant did not file formal opposition to the motion.

Statement of Facts

The complaint in complaint in this matter was filed on 15 November 2007.

This action arise from disputes involving a special assessment levied by Cross-Defendant Casa Del Valle Homeowners Association (“CDV”) against Cross-Complainant Arlyne Diamond, Ph.D (“Dr. Diamond”). CDV brought and prosecuted a wrongful foreclosure on a lien to collect the special assessment. CDV’s complaint was dismissed in January 2014, as directed by the Court of Appeal in its decision in Diamond v. Superior Court. Dr. Diamond has cross-complained, asserting CDV’s action was not properly commenced and for other monetary and equitable relief.

A motion for summary adjudication was heard on 8 May 2014. This Court is unaware of any ruling or the outcome of that motion.

Discovery Dispute

On 5 December 2013, Cross-Complaint’s counsel prepared and served Special Interrogatories (Set No. 7) and Inspection Demand (Set No. 5) upon Cross-Defendant CDV. However, no responses were served from Cross-Defendant by 10 January 2014. (Exhibit A and B)
On 22 January 2014, Cross-Complainant’s counsel prepared and served upon Cross-Defendant CDV Notices stating that the responses to the interrogatories (Set No. 7) and Inspection Demand (Set No. 5) were overdue. The date for complying with these Notices was 3 February 2014. No responses have been received for this matter.

Analysis
If a party fails to timely responds to request for discovery, the propounding party may seek an order compelling responding party to responses. Code of Civil Procedure §§ 2030.290(b) (interrogatories), 2031.300(b) (Production of documents).

To prevail on its motion, Defendant needs to show that the discovery requests were 1) properly served; 2) the time to respond has expired; and 3) that no response of any kind has been served. (Leach v. Super. Ct., (1980) 111 Cal.App.3d 902, 905-906.)

Code of Civil Procedure, § 2030.290(c) states, in part: “If a party then fails to obey an order compelling answers [to interrogatories], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

Code of Civil Procedure, § 2030.300(c) states, in part: “If a party then fails to obey the order compelling a response, [to a request for production of documents] the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”

The power to impose discovery sanctions is a broad discretion and subject to reversal only for arbitrary, capricious or whimsical action. Only two facts are absolutely prerequisite to imposition of the sanction: first, there must be a failure to comply and two) the failure must be willful. Vallbona v. Springer (1996) 43 Cal. App. 4th 1525, 1545. Where a party has repeatedly thwarted discovery and violated court orders, willfulness is established and nonmonetary sanctions are warranted. R.S. Creative, Inc. v. Creative Cotton, Ltd, (1999) 75 Cal. App. 4th 486, 496.

The request for terminating sanctions is GRANTED. The answer of Cross-Defendant Casa Del Valle Homeowners Association to the Cross-Complaint of Diamond is STRICKEN. Plaintiff may proceed to obtain a judgment by default against Cross-Defendant Casa Del Valle Homeowners Association.

Sanctions

Defendant/Cross-Complainant also seeks monetary sanctions in compensation for the necessity of bringing these two motions. In the declaration in support of the motion for sanctions for the violation of this Court’s lawful orders, he is seeking $1890.

In the motion to compel responses, Counsel declares that he has incurred $990.

While counsel lists the time he anticipates he would spend for the preparation of reply grease and appearing at the hearing, he correctly notes that this time would not be compensable if no opposition briefs are filed. The Court does not grant speculative sanctions. Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)

If Cross-Defendant does seek to orally argue before the Court, the Cross-Complainant may bring up the issue of further sanctions at that time.
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Order
The request for terminating sanctions is GRANTED. The answer of Cross-Defendant Casa Del Valle Homeowners Association to the Cross-Complaint of Diamond is STRICKEN. Plaintiff may proceed to obtain a judgment by default against Cross-Defendant Casa Del Valle Homeowners Association.
The request for monetary sanctions against Cross-Defendant is GRANTED. Cross Defendant is to pay the sum of $2880.00 to Louis Spitters, counsel for Defendant/Cross-Complainant Diamond within 20 days of the date of the filing of this Order.