Fadel S. Melhem v. Lowe’s Home Improprement Warehouse		CASE NO. 113CV253883
DATE: 31 October 2014	TIME: 9:00	LINE NUMBER: 11

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 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the motions of Defendant Lowe’s Home Improvement Warehouse (“Lowe’s”) to:

1) Compel Responses to Request for Production of Documents, Set One and Request for Monetary Sanctions;

2) Compel Responses to Form Interrogatories, Set One and Request for Monetary Sanctions;

3) Compel Responses to Special Interrogatories, Set One and Request for Monetary Sanctions;

4) Deem Facts Contained in Defendant’s Request for Admissions to be Admitted and Request for Monetary Sanctions; and

5) Compel Response for Request for Specification of Damages were argued and submitted.

Plaintiff did not file formal opposition to any motion.[1]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

All parties are reminded that “[a] motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”  Rule of Court 3.1345(d).

1. Statement of Facts.

This case arises from a slip and fall accident (“the accident”) that occurred while Plaintiff was shopping at Defendant Lowe’s San Jose Warehouse.  Plaintiff alleges that on 1 October 2011, after concluding a transaction at the register of Defendant’s store, he turned away from the register and slipped on a flat bed cart that had been left by his feet.  The slip caused him to fall hard on his legs, chest and shoulder.  Plaintiff alleges that following the fall he experienced sharp pain in his legs, as well as swelling and redness.  This caused him to go to the emergency room at Good Samaritan Hospital to seek treatment.

On 9 October 2011, Plaintiff still had not recovered and he checked into Stanford Hospital for further treatment.  At Stanford Hospital, doctors diagnosed Plaintiff with shingles in his legs, and Plaintiff alleges his condition was caused by severe nerve pain resulting from the accident.  In his complaint, Plaintiff states he still has complications from the shingles that have forced him to bed rest and caused severe pain in his legs, chest and shoulders.

On 30 September 2013, Plaintiff filed a complaint for general negligence against the Defendant.  On 19 August 2014 Defendant filed an answer denying all allegations.

1. Discovery Dispute.

On 20 August 2014, Defendant served five sets of written discovery on the Plaintiff.  In order, these included:

1) Request for Production of Documents, Set One;

2) Form Interrogatories, Set One;

3) Special Interrogatories, Set One;

4) Request to Deem Facts Contained in Defendant’s Request for Admissions (“RFA”) to be Admitted; and

5) Request for Specification of Damages.

Plaintiff failed to serve a response to any request.  On 2 October 2014, attorney for the Defendant, Christopher S. Davis, placed a phone call to the Plaintiff and left a detailed message.  In his message, Mr. Davis informed the Plaintiff that Defendant intended to bring motions to compel discovery for the above mentioned requests, and the motions were to be filed in Department 19 at the Santa Clara Superior Court for a hearing to be set on 31 October 2014.  Defendant left a return phone number but never received a reply from the Plaintiff.

On 7 October 2014 Defendant filed the above mentioned requests for discovery and monetary sanctions against the Plaintiff.  Each motion was accompanied by a notice of motion, supporting memorandum of points and authorities, and declaration in support of the motion and request for sanctions.

III.     Analysis.

1. Motions to Compel Form Interrogatories, Special Interrogatories, and Requests for Production.

To prevail on its motions, Defendant needs to show is that the discovery requests were properly served, that the time to respond has expired, and that no response of any kind has been served.  (Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906; Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.)

If a party to whom interrogatories or demand for inspection are directed fails to serve a timely response, the party propounding the interrogatories or requests for the production of documents 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 for production).)

Defendant Lowe’s has provided proof of service for the first sets of form interrogatories, special interrogatories, and requests for production of documents. 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 motions to compel responses to Defendant’s first sets of form interrogatories, special interrogatories, and requests for production of documents are GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

1. Motion for Order to Deem Facts in Defendant’s RFA to be Admitted.

Failure to timely respond to requests for admissions (“RFA”) does not result in automatic admissions.  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) (“Weil & Brown”) at ¶¶8: 1370.)  The propounder of the RFA must “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.”  (Id., citing Code Civ. Proc. § 2033.280(b).)  The Court shall grant the motion, “unless it finds that the party to whom the [RFA] have been directed has served, before the hearing on the motion, a proposed response … in substantial compliance with” Code Civ. Proc. section 2033.220 prior to the hearing.  (Id. at ¶8:1374, citing CCP § 2033.280(c).)

As with the motions discussed in section A above, to prevail on its motion to deem facts in the RFA admitted, all Defendant needs to show is that the discovery request was properly served upon Plaintiff, that the time to respond has expired, and that no response of any kind has been served.  (See Id. at ¶8:1140, citing Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)

Moreover, if the Plaintiff fails to serve timely responses, Plaintiff waives any right to object to the request, including ones based on privilege or the protection of attorney work product.  (Code Civ. Proc. § 2033.280(a).)

Defendant’s request that RFA be deemed admitted must be granted unless the Court finds that the party to whom the RFA have been directed has served, before the hearing on the motion, a proposed response that is in substantial compliance with Code Civ. Proc. section 2033.220.  (Weil & Brown, supra, at ¶8:1374, citing CCP § 2033.280(c).)

Given that the statutory language is mandatory and that Plaintiff has not provided any responses prior to the hearing on this Motion, Defendant’s discovery request number 4 to have the RFA be deemed admitted is GRANTED.  The requests for admissions are deemed ADMITTED.

1. Notice to Compel Plaintiff’s Response to Request for Specification of Damages:

Where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated in the complaint.  (Code Civ. Proc. § 425.10(b).)  However, “when a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought.” (Code Civ. Proc. § 425.11(b).)  The request must be served upon the plaintiff, who has 15 days to serve a responsive statement as to the damages.  (Id.)  If no response is served, the defendant, on notice to the plaintiff, may petition the Court to order a responsive statement be served.  (Id.)

The purpose of a statute requiring a plaintiff to serve a statement setting forth the nature and amount of damages being sought before a default may be taken is to give a defendant one last clear chance to respond to allegations of complaints by providing the defendant with actual notice of potential liability.  (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 860.)

In the instant case, Defendant properly served Plaintiff with a request for specification of damages on 20 August 2014.  Plaintiff failed to respond.

Accordingly, Defendant’s discovery request number 5 to compel Plaintiff’s response to specification of damages is GRANTED. Plaintiff is ordered to respond within 20 days after the date of the filing of this Order.

1. Sanctions.

Defendant also makes a request for monetary sanctions pertaining to the foregoing motions.

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.)

1. Monetary Sanctions for Defendant’s Discovery Motions First Sets of Form Interrogatories,                                     Special Interrogatories, and Requests for Production of Documents.

The request for monetary sanctions pertaining to Defendant’s motions t first sets of form interrogatories, special interrogatories, and requests for production of documents, are not code-compliant.

 

The California Code of Civil Procedure states that the Court shall impose monetary sanctions in many different situations. (See Code Civ. Proc. § 2030.290(c) (Imposing monetary sanctions for a motion to compel answers to interrogatories); Code Civ. Proc. § 2033.280(c) (Imposing monetary sanctions for delay or failure to respond to a request for admission); Code Civ. Proc. § 2031.300(c) (Imposing monetary sanctions for a motion to compel responses to requests for production of documents).)

However, with regards to motions to compel, where there are no opposition papers filed, the proper source of authority for monetary sanctions is Rule of Court 3.1348(a) as there has been no failed opposition.

Concerning Defendant’s motions to compel interrogatory responses and request for production of documents, the Plaintiff has not unsuccessfully opposed these motions. Therefore, reliance on Code Civ. Proc. §§ 2030.290(c) and 2031.300(c) for monetary sanctions is inapplicable in present case. The proper authority for monetary sanctions pertaining to these motions case would be Rule of Court 3.1348(a).  Under Rule 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, 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, Defendant’s requests for monetary sanctions pertaining to Defendant’s motion to compel interrogatory responses and production of documents (discovery requests 1, 2, and 3) are DENIED.

2. Monetary Sanctions for Defendant’s Discovery Motion Re: Requests for Admissions.       

The request for monetary sanctions pertaining to Defendant’s motion for order of court to deem facts contained in Defendant’s RFA be admitted (motion number 4) is code compliant.

Code of Civ. Proc. section 2033.280 states, “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.” (Code Civ. Proc. § 2033.280(c).)  Thus, for purposes of this section, it is irrelevant whether opposition papers were filed.

In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49.)  Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (1st Dist. 2010) 186 Cal.App.4th 1548, 1551.)

In the Defendant’s Declaration in support of Defendant’s motion to have RFA admitted, Defendant counsel clearly sets forth “facts supporting the amount of any monetary sanction sought.”  (Code Civ. Proc. § 2023.040.)

Accordingly, Defendant’s request for monetary sanctions in the amount of $465.00 pertaining to Defendant’s motion to deem facts contained in Defendant’s RFA be admitted (discovery request number 4) is GRANTED.  Plaintiff is to pay the sum of $465 to counsel for Defendant within 20 days of the date of the filing of this Order.

1. Order.

Defendant Lowe’s Motions to Compel: Responses for Production of Documents, Set One; Responses to Form Interrogatories, Set One; Responses to Special Interrogatories, Set One; and Response to Request for Specification of Damages is GRANTED.  Plaintiff is to provide code compliant responses within 20 days of the date of the filing of this Order.

The motion of Defendant for an order of court to deem facts contained in Defendant’s request for admission be admitted is GRANTED.  The matters contained in the requests are deemed ADMITTED

Defendant Lowe’s request for Monetary Sanctions is GRANTED in part and DENIED in part.  Plaintiff is to pay the sum of $465 to counsel for Defendant within 20 days of the date of the filing of this Order.

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”