Colindres v. Periera Investment Corp CASE NO. 113CV249993
DATE: 6 June May 2014 TIME: 9:00 LINE NUMBER: 19
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 Pereira investment Corporation to “compel for sanctions vs. Plaintiffs and Plaintiffs Counsel” was argued and submitted.

Plaintiff did not file formal opposition to the motion.

Statement of Facts

The complaint in this matter was filed on 24 July 2013.

The personal injury arises out of an alleged slip and fall in Defendant’s restaurant in which Plaintiff Martha Colindres (“Plaintiff”) allegedly suffered physical injuries.

Discovery Dispute

On 17 December 2013, Defendant properly served upon Plaintiff’s counsel sets of Form Interrogatories, Special Interrogatories and Requests for Production of Documents. Plaintiff never provided code-compliant responses or any responses to discovery requests.

On 31 January 2014, Defendant’s counsel personally spoke and met and conferred with Plaintiff’s counsel regarding the overdue discovery. Plaintiff’s counsel indicated that he would “move it to the top of the stack.” There was no indication that Plaintiff’s counsel did not receive the requests.

On 7 February 2014, Defendant mailed Plaintiff’s counsel a meet and confer letter regarding the discovery request.

On 28 February 2014, Plaintiff’s counsel contacted Defendant’s counsel and stated that he had never received the discovery requests. However, Defendant’s counseled double-checked all discovery requests and informed counsel that there were proper proofs of service. Nonetheless, additional courtesy copies were faxed to Plaintiff’s counsel on the same day.

On March 2014, Defendant sent by mail and fax to Plaintiff’s counsel a “meet and confer” letter regarding requests.

No responses have been received and Plaintiff’s counsel has not contacted Defendant’s counsel for further discussion of the matter.

Analysis

If a party fails to timely respond to requests for discovery, the propounding party may seek an order compelling the 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.)

In addition, if a party to whom interrogatories are directed fails to response in a timely manner, that party waives any right to object to the request, including ones based on privilege or the protection of attorney work product. (Code of Civil Procedure §§ 2030.290(a), 2031.300(a).)

The motion of Defendant to compel Plaintiff to respond to Form Interrogatories, Special Interrogatories and Requests for Production of Documents is GRANTED. Plaintiff is to provide code-compliant responses within 20 days of the date of the service of this Order.

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 cites Code of Civil Procedure, § 2023.010. 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, Defendant cites Code of Civil Procedure, § 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 addition, in the notice of the motion and not in the memorandum of points and authorities, Defendant cites Code of Civil Procedure § 128.5 for reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.

However, Code of Civil Procedure § 128.5(b)(1) states: “ Actions or tactics including, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint only if the actions or tactics arise from a complaint filed, or a proceeding initiated, on or before 31 December 1994.”

Since the request is not supported by the appropriate authorities in the memorandum of points and authorities, the request for monetary sanctions is DENIED.

Order

The motion of Defendant to compel Plaintiff to respond to Form Interrogatories, Special Interrogatories and Requests for Production of Documents is GRANTED. Plaintiff is to provide code-compliant responses within 20 days of the date of the service of this Order.

The request for monetary sanctions is DENIED.