A. and T. Buynevich v. F. and Z. Rabinovich CASE NO. 113CV245630
DATE: 6 June May 2014 TIME: 9:00 LINE NUMBER: 15
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 defendants to compel response to supplemental discovery and for sanctions was argued and submitted. The Plaintiffs did not file formal opposition to the motion.

Statement of Facts

This action arises from an alleged act of negligence by the defendants concerning their dog and the personal injuries of the plaintiffs on or about 18 August 2012. The plaintiffs, a minor and his parents, were having a picnic with the defendants at a public park in the city of Sacramento. The defendant’s dog was present at this picnic. According to the amended complaint filed on 09 May 2014, the plaintiffs allege that the defendants’ dog bit one of the plaintiffs, the minor, resulting in physical and emotional injuries. Also filed with the amended complaint are two causes of action for negligent infliction of emotional distress suffered by the plaintiffs as the parents of the minor.

Discovery Dispute

On 28 February 2014, the defendants propounded to the plaintiffs supplemental interrogatories, set number one, and a supplemental demand for production, set number one. No responses were received by the defendants, and on 15 April 2014, the defendants wrote a letter to the plaintiffs’ counsel to attempt to resolve the dispute without court intervention. As of the filing date of the motion, the defense counsel as yet to receive verified answers and has yet to be contacted by the plaintiffs’ counsel.

Analysis

If a party fails to timely respond to requests for discovery, the propounding party may seek an order compelling the responding party to produce responses. Code of Civil Procedure Sections 2030.290(b) (interrogatories) and 2031.300(b) (request for production). Timely response is due within 30 days after service for both the interrogatories and the request for production. (Code Civ. Proc. §§ 2030.260(a) and 2031.260(a).)

To prevail on its motion, a party 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.) The defendants have provided the documentation that the discovery requests were property served on 28 February 2014 by Timothy Feeney to the respective law offices of Irene Karbelashvili and Gregory D. McDonald, the attorneys for the Plaintiffs. This required a timely response by 28 March 2014. When this deadline passed, Defendants allowed for another two weeks before seeking their discovery answers in a written letter on 15 April 2014 to the same aforementioned plaintiffs’ attorneys. As of the date of this motion’s filing, no response by the plaintiffs or their attorneys is noted.

The motion of Defendants to compel plaintiffs to provide discovery responses to form interrogatories, set number one, and requests for production, set number one, is GRANTED. Defendant must provide code compliant responses without objections within 10 days of the date of the filing of this Order.

Sanctions

“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.” (Code Civ. Proc. § 2023.040.)

In the Defendants’ motion, there is a request for monetary sanction against Andrew Buynevich, Aleksey Buynevich, and Tatyana Buynevich. This motion was supported by a Memorandum of Points and Authorities and accompanied by a Declaration of Lynne M. Coates, attorney for the Defendants. Notice is provided in the motion, and service conducted on 05 May 2014 to the Defendants.

The Defendants cite California Code of Civil Procedure §2023.010(d) as the basis for imposing sanctions due to failing to “respond or submit to an authorized discovery method.” The Defendants also cite further statutory justification where the court shall impose monetary sanctions from Code of Civil Procedure §2030.290(c) and §2031.300(c), which respectively concern interrogatories and demands for production. Defendants cite Code of Civil Procedure, §§ 2030.290(c) and 2031.300(c) as the entitlement to sanctions. However, sanctions in those matters may be assessed only when party “unsuccessfully makes or opposes a motion to compel a response. . .”

Here, Plaintiffs did not oppose the motion.

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.”

The request for monetary sanctions is DENIED.

Order

The motion of Defendants to compel Plaintiffs to provide discovery responses to form interrogatories, set number one, and requests for production, set number one, is GRANTED. Plaintiffs must provide code compliant responses without objections within 10 days of the date of the filing of this Order.

The request for monetary is DENIED.