Case Number: BC525291    Hearing Date: July 30, 2014    Dept: 34

SUBJECT: (1) Motion to compel defendant Kyun Ha Park to provide responses to form interrogatories

(2) Motion to compel defendant Kyun Ha Park to appear for deposition

Moving Party: Plantiff JSB, Inc. (“plaintiff”)

Resp. Party: None

PRELIMINARY COMMENTS:

The court is concerned with the lack of professionalism demonstrated in plaintiff’s pleadings. In the Court’s tentative decision prior to its ruling on July 9, 2014, it stated:

“The court notes that plaintiff’s opposition is not signed by plaintiff’s counsel nor are the pages numbered.

“The Court also notes that Plaintiff’s First Amended Complaint is difficult to cite to, because after ¶¶ 1, 2 and 3, plaintiff has chosen to begin renumbering its paragraphs, starting over again with ¶ 1; thus there are two paragraphs numbered “1”; two paragraphs numbered “2”; and two paragraphs numbered ‘3.’”

In the two motions plaintiff has now submitted, plaintiff’s counsel has not supplied evidence that the discovery in question was even served on defendant. Plaintiff’s counsel has been a member of State Bar for over 3½ years. The Court should not have to deal with pleadings with such basic errors.

BACKGROUND:

Plaintiff commenced this action on 10/23/13 against defendant Kyun Ha Park for breach of promissory note and money lent. On 3/11/14, plaintiff filed a first amended complaint against Park and Alpha & Omega Health Inc. dba Diamond Medical Supply for fraud and money lent. The action pertains to misrepresentations that Park allegedly made in obtaining a loan. (See FAC ¶¶ 3-7.) Defendant Alpha & Omega, through its owner, allegedly falsely verified Park’s misrepresentations. (Id., ¶ 9.)

ANALYSIS:

Motion to Compel Responses to Form Interrogatories

Responses to written discovery must be served within 30 days and if responses are not timely served, the responding party waives any objections thereto. (See Code Civ. Proc., §§ 2031.260, 2030.300, 2033.250, 2033.280.) For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, “[o]nce [a party] ‘fail[ed] to serve a timely response,’ the trial court had authority to grant [opposing party’s] motion to compel responses.” (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

Plaintiff’s counsel declares that Park was served with the first set of form interrogatories on 5/9/14. (Kim Decl., ¶ 3.) There is no showing that plaintiff’s counsel has personal knowledge of whether Park was actually served. Plaintiff fails to provide proof of service of the interrogatories to support this declaration. It therefore cannot be determined whether Park was properly served with the interrogatories.

On the other hand, plaintiff has not opposed this motion.

If plaintiff appears at the hearing with the proper proof of service, the court will consider granting the motion to compel responses to form interrogatories.

Motion to Compel Deposition

“If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc. § 2025.450(a).)

As with the form interrogatories, the only evidence provided by plaintiff as to the service of the deposition notice is plaintiff’s counsel’s conclusory declaration that the notice was served on 5/9/14. (See Kim Decl., ¶ 3.) Once again, there is no showing that counsel has personal knowledge as to any service of the notice. Plaintiff fails to provide proof of service of the deposition notice.

However, as indicated above, plaintiff has not opposed this motion.

If plaintiff appears at the hearing with the proper proof of service, the court will consider granting the motion to compel defendant Park’s appearance at her deposition.