Ebba v. Espinosa CASE NO. 113CV247087
DATE: 6 June May 2014 TIME: 9:00 LINE NUMBER: 17
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 the Defendant to compel discovery responses and for monetary sanctions was argued and submitted.

Plaintiffs 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

The Plaintiffs claim they were injured when struck by a vehicle driven by Defendant. The plaintiffs were pedestrians.

Discovery Dispute

Defendant served the discovery requests to Plaintiffs on 23 September 2013. Those requests consisted of interrogatories, special interrogatories and demands for inspection and production of documents. The responses were originally due 28 October 2013. After many extensions and per agreement of the parties, the responses were due 24 February 2014.

Counsel for the Plaintiff, Francis Shebadah, has not responded to the discovery requests. Counsel for the Defendant, Colin McCarthy, has called multiple times. Mr. Shebadah responded to those calls by stating that settlement would be preferred, but has not provided a settlement demand.

Analysis

Defendant seeks to compel responses to the interrogatories, special interrogatories, and demands for inspection and production of documents. Defendant properly cites Code of Civil Procedure § 2031.300 to compel responses to the demands for inspection and production of documents.

Defendant improperly cites Code of Civil Procedure § 2030.090(b) to compel responses to the interrogatories and special interrogatories. Section 2030.090(b) pertains to protective orders. The correct section is Code of Civil Procedure § 2030.290(b).

If a party does not respond to requests for discovery in a timely fashion, the propounding party may seek an order to compel discovery responses. (Code of Civil Procedure § 2030.290 (interrogatories); § 2031.300 (request for production of documents).) To prevail on the motion, all Defendant needs to show is that the discovery requests were properly served, the time to respond has expired, and no response of any kind has been served. (Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)

By failing to respond in a timely manner, the Plaintiff waives any objection to the demands, including objections based on privilege or the protection of work product. (Code of Civil Procedure § 2030.290 (interrogatories); § 2031.300 (request for production of documents).)

The erroneous citation to Section 2030.090(b) could be grounds for denial of the motion. However, despite citing the incorrect section for interrogatories, Defendant cited the correct authority to compel production of documents.

The motion of Defendant to compel Plaintiff to provide discovery responses to form interrogatories, set one, and special interrogatories, set one, and demands for inspection and production of documents, set one, is GRANTED.

Sanctions

Defendant makes a request for monetary 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.”

In support of the request for sanctions, Defendant properly cites Code of Civil Procedure, § 2023.010. Defendant improperly cites section 2030.020, and section 2030.300(d). 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. Section 2030.020 gives instruction for propounding interrogatories, and does not authorize monetary sanctions for failure to confer. Section 2030.300(d) authorizes monetary sanctions where a party has responded to, and unsuccessfully opposed a motion to compel responses. However, plaintiff has not responded to Defendant’s discovery requests

The court may award sanctions if the plaintiff has not responded. Under Rule of Court 3.1348(a) “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. . .” However, Defendant has not cited this authority.

The request for monetary sanctions is DENIED.

Order

In conclusion, the motion of Defendant to compel Plaintiff to provide discovery responses to form interrogatories, set one, and special interrogatories, set one, and demands for inspection and production of documents, set one, is GRANTED. Defendant must provide code compliant responses without objections within 20 days of the date of the filing of this Order.

The request for monetary sanctions is DENIED.