Larry Lenhart and Kim Karloff vs. Randolph et. al. CASE NO. 113-CV248720
DATE: 6 June May 2014 TIME: 9:00 LINE NUMBER: 18
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 Gail Randolph (“Defendant”) to have the court compel Plaintiff Larry Lenhart (“Plaintiff”) to respond to Defendant’s written discovery orders, for the court to deem admitted the Defendant’s request for admissions (RFA), and for an award of monetary sanctions was argued and submitted.

Plaintiff did not file a formal opposition to the motion.

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

Statement of Facts

This is an action for negligence, abatement of a private nuisance, and for injunction and damages concerning damage to Plaintiff’s house from two Redwood trees. Plaintiff alleges and Defendant denies all allegations and responsibility for any property damages that have resulted from two Redwood trees since April 2013.

The alleged property damage is said to have resulted from the trees’ dropping of limbs and branches onto the Plaintiff’s property as well as the encroachment of tree roots onto Plaintiff’s property. Plaintiff claims that Defendant owns and controls the Redwood trees and that Defendant negligently failed to maintain the trees’ overgrowth in order to avoid property damage and the creation of a substantial risk of personal injury. Plaintiff filed this action in June 2013 claiming the trees are a private nuisance and asking for an immediate removal of the Redwood trees as well as a repair of any damages that have resulted from these trees.

Discovery Dispute

On 6 February 2014 Defendant served form interrogatories, special interrogatories, RFA and inspection demands on Plaintiff. Plaintiff had 35 days from the date the written discovery requests were first served to respond.

On 24 April 2014 having yet to receive the Plaintiff’s response, the Defendant filed this motion in order to compel the Plaintiff to respond to the Defendant’s interrogatories and inspection demands, to have the RFA deemed admitted, and to request monetary sanctions.

Analysis

I. Motion to Compel Response to Defendant’s interrogatories and Inspection Demands

If a party to whom interrogatories or demand for inspection are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling responses. Code Civ. Proc. § 2030.290(b) (interrogatories) § 2031.300(b) (response to demand).The party who fails to serve a timely response waives any right to object to the interrogatories or demands, including ones based on privilege or on the protection of work product. Code Civ. Proc. § 2030.290 (a) (interrogatories) § 2031.300(a) (response to demand).

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.

Defendant has provided proof of service for the first set of form interrogatories, special interrogatories, and inspection demands. The deadline for the Plaintiff to respond has lapsed and the Plaintiff has not timely responded to any of Defendant’s discovery requests. Accordingly Defendant’s motion to compel responses to Defendant’s discovery requests is GRANTED. Plaintiffs are to provide code compliant responses without objections within 20 days of the date of the filing of this Order.

II. Motion to Have RFA Deemed Admitted

If a party to whom a request for admissions is directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for a monetary sanction. Code Civ. Proc. § 2033.280(b). It is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. Code Civ. Proc. § 2033.280(c).

Further, the party who fails to serve a timely response waives any objection to the requests, including one based on privilege or on the protection of work product. § 2033.280(a). The court shall order the request be deemed admitted, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is code-compliant. Code Civ. Proc. § 2033.280(c).

Defendant requests the court to deem admitted Defendant’s first set of request for admissions. Plaintiff has failed to serve the Defendant with a timely response to Defendant’s RFA and Defendant has provided proof of service. Accordingly the Court shall order the motion for the RFA to be deemed admitted GRANTED.

III. Motion for Monetary Sanctions

The Discovery Act provides that the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct unless the court finds that the one subject to the sanction acted with substantial justification or other circumstances make the imposition of monetary sanctions unjust. Code Civ. Proc. § 2023.030(a). A misuse of the discovery process includes but is not limited to the failure of a party to respond or to submit to an authorized method of discovery. Code Civ. Proc. § 2023.010(d).

A party requesting 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 and the motion shall be supported by a memorandum of points and authorities and a declaration setting forth facts supporting the amount of any monetary sanction sought. Code Civ. Proc. §2023.040

Defendant has properly filed a motion to compel discovery and requests for admission. The Plaintiff has misused the discovery process by failing to respond to Defendant’s form interrogatories, special interrogatories, inspection demands, and RFAs.

Concerning the interrogatories and inspection demand the Plaintiff has not unsuccessfully opposed the Defendant’s motions. Code Civ. Proc. §§ 2030.290; 2031.300. Therefore, the reliance on §§ 2030.290, 2031.300 for monetary sanctions is inapplicable in this case because the Plaintiff has not unsuccessfully opposed the Defendant’s motion to compel responses to set one interrogatories and set one inspection demand. 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.”

Accordingly, monetary sanctions for failure to comply with the interrogatory requests and inspection demand are DENIED.

The Defendant also seeks monetary sanctions for the Plaintiff’s failure to respond to Defendant’s set one RFA. The Defendant relies on §§ 2033.280, 2023.010(d) for monetary sanctions as a result of Plaintiff’s failure to serve a timely response to Defendant’s request for admissions. If the motion is code-compliant, pursuant to §2033.280 It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.

The Defendant’s motion is code-compliant. Defendant has properly identified the Plaintiff Larry Lenhart and his attorney Robert Dunne as the party against whom sanctions are sought. Code Civ. Proc. §2023.040. The Defendant’s motion has properly specified that the sanctions sought are monetary in the total amount of $490.00. (Id.). The Defendant properly provided a factual computation of the monetary amount as consisting of attorney fees, filing fees, and court reporter fees that have been incurred by the Defendant in connection with this motion to compel. (Id.).

Defendant’s motion for monetary sanctions for failure to respond to the request for admissions is GRANTED. The Court will order that Plaintiffs pay the sum of $410.00 to counsel for Defendant within 20 days of the date of the filing of this Order.

///

///

///

///

///

///

Order

Defendant’s motion to compel responses is GRANTED. Plaintiffs are to provide code compliant responses without objections within 20 days of the date of the filing of this Order.

Defendant’s motion to have RFAs deemed admitted is GRANTED. The requests are deemed ADMITTED.

Defendant’s motion for monetary sanctions is DENIED in part and GRANTED in part. The court may award the Defendant monetary sanctions for the Plaintiff’s failure to respond to Defendant’s set one RFAs. The Court will order that Plaintiffs pay the sum of $410.00 to counsel for Defendant within 20 days of the date of the filing of this Order.