Caberto v. Trinh, et al. CASE NO. 113CV241297
DATE: 6 June 2014 TIME: 9:00 LINE NUMBER: 12
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 Phuong Trinh (“Defendant”) to compel responses to form interrogatories, set one , request for production of documents, set one and for sanctions was argued and submitted. Plaintiff Antonio Caberto (“Plaintiff”) did not file formal opposition to the motion.

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

Statement of Facts

On 7 March 2011, a motor vehicle accident occurred. Plaintiff filed a complaint with the Court on 15 February 2013 with a negligence cause of action. Defendant pleaded affirmative defenses.

Discovery Dispute

On 26 June 2013, Defendant properly served the foregoing discovery , with a due date of 26 August 2013.

On 9 September 2013, Defendant’s counsel mailed to Plaintiff’s counsel a meet and confer letter regarding late discovery.

In a motion filed on 6 January 2014, Defendant sought an order to compel Plaintiff to respond to the above discovery. No opposition to that motion was filed by Plaintiff. Plaintiff was represented at the hearing. On 14 February 2014, the matter was argued and submitted. This Court made the following lawful order:

“The motion to compel responses to form interrogatories, set one, request for production of documents, set one is GRANTED. Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order. (continued on next page. . . . .)

Defendants request for monetary sanctions is GRANTED. Plaintiff is ordered to pay the sum of $744.00 To Defense Counsel within 20 days of the date of the filing of this Order.”

To this date, Plaintiff has paid the monetary sanction to counsel for Defendant. However, defense counsel still has its not received a response to either discovery request.

On 8 May 2014, Defendant filed the present motion seeking additional monetary sanctions and terminating sanctions for failure to comply with this Court’s lawful order of 14 February 2014.

Discussion

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.

I. Failure to Comply with This Court’s Lawful Order

Code of Civil Procedure, § 2023.010(d) and (g) state: “Misuses of the discovery process include, but are not limited to, the following: d) Failing to respond or to submit to an authorized method of discovery; (g) Disobeying a court order to provide discovery.” See Rule of Court 2.30.

II. Monetary Sanctions

The issue here is the problem of whether the moving papers have cited the correct authority.

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.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

In one sense, Code of Civil Procedure, § 2030.290(c), which was not cited by Plaintiff in this motion, is inapplicable in this situation since Plaintiff did not oppose the motion. The proper authority would have been Rule of Court 3.1348(b).

However, this Court is satisfied that overall, Plaintiff was given fair notice of the purpose of the motion.

This Court does not award monetary sanctions for anticipated costs. Sanctions should be awarded only for expenses actually incurred. Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.

Here, the Defendant spent two hours preparing the motion at a rate of $120 an hour. Defense counsel incurred costs of $90. The anticipated cost of preparing a reply cannot be included in the monetary sanction request. Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th at 1551. Therefore, this Court will award defense counsel the sum of $330.00 in additional monetary sanctions payable by Plaintiff within 20 days of the date of the filing of this Order.

III. Terminating Sanctions

Once the trial court transmutes the obligation to serve a response from a statutory duty into a judicial order, further noncompliance exposes the disobedient party to the more drastic “issue,” “evidence,” or “terminating” sanctions. Code of Civil Procedure, §§ 2030.290(c); §§ 2023.030(b)–2023.030(d). See, e.g., Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal. App. 4th 813, 816–820.

This Court takes the issue of terminating sanctions quite seriously.

Again, Plaintiff did not cite the applicable authority for the issuance of terminating sanctions. Code of Civil Procedure, § 2030.290(c) also states, in part:

“If a party then 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 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).”

While this Court might deal more leniently with the disobedience of its order (Code of Civil Procedure, § § 2030.290(c)) it is not required to do so, especially where there is no showing of any justification in failure to comply with the court order.

The motion for terminating sanctions is GRANTED. The complaint is STRICKEN.

Order

Therefore, this Court will award defense counsel the sum of $330.00 in additional monetary sanctions payable by Plaintiff within 20 days of the date of the filing of this Order.

The motion for terminating sanctions is GRANTED. The complaint is STRICKEN.