Case Number: BC709183 Hearing Date: August 30, 2019 Dept: 4A

Motion to Compel Responses to Special Interrogatories and Request for Production (Both Set Two)

Having considered the moving and opposing papers, the Court rules as follows. No reply papers were filed.

BACKGROUND

On June 7, 2018, Plaintiffs Phala Herron and Garnet King (“Plaintiffs”) filed a complaint against Defendant Kelvyn Barnett (“Defendant”) alleging motor vehicle negligence for a vehicle collision that occurred on August 8, 2016.

On August 2, 2019, Defendant filed motions to compel Plaintiff Herron to provide verified responses without objections to Special Interrogatories and Request for Production (Both Set Two) pursuant to California Code of Civil Procedure sections 2030.290, subdivision (b), and 2031.300, subdivision (b).

Trial is set for December 9, 2019.

PARTY’S REQUESTS

Defendant requests that the Court compel Plaintiff Herron to provide verified responses without objections to Special Interrogatories and Request for Production (Both Set Two) due to Plaintiff Herron’s failure to provide timely responses.

Defendant also requests that the Court impose monetary sanctions of $648.55 against Plaintiff Herron and her counsel of record for their abuse of the discovery process.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc. § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc. § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privileges and work product. (Code Civ. Proc. § 2031.300, subd. (a).) Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he 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 the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010.)

Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c).)

California Rules of Court, rule 3.1348, subdivision (a) 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.”

DISCUSSION

On March 12, 2019, Defendant served Special Interrogatories and Request for Production (Both Set Two) on Plaintiff Herron by U.S. Mail. (Both Dustin J. Lee Declarations (“Lee Decl.”), ¶ 2, Exh. A.) Defendant provided two extensions for Plaintiff Herron to provide responses, providing an ultimate deadline of May 15, 2019. (Lee Decl., ¶¶ 3-5, Exh. B-C.) Defendant had not received the outstanding responses as of the signing of Dustin J. Lee’s declarations on July 27, 2019. (Lee Decl., ¶¶ 5-6.)

Plaintiff Herron argues Defendant’s request for written responses has been mooted by Plaintiff Herron serving responses prior to the hearing. (Yeager Decl., ¶ 2.) But there has been no showing that these responses were verified or provided without objections, as they have not been submitted to the Court. Accordingly, Plaintiff Herron’s counsel’s declaration does not provide sufficient proof to render the motion moot.

Additionally, the Court finds Plaintiff Herron did not act with substantial justification or that circumstances shown would render the imposition of sanctions to be unjust. Plaintiff Herron merely argues that sanctions should not be awarded because the responses have been provided. Plaintiff Herron did not provide timely responses. By her logic, a plaintiff may consistently wait until the day before the hearing on a motion to compel to serve responses and never be sanctioned for an abuse of the discovery process. That cannot be the case. Plaintiff Herron’s service of responses that are potentially unverified and consist of only objections does not demonstrate that Plaintiff Herron acted with substantial justification or that the imposition of sanctions would be unjust.

Defendant’s request for $648.55 in monetary sanctions consists of 2 hours in preparing the motions and 1 hour in traveling to and appearing at the hearing at a rate of $143.75 an hour, plus two $61.65 filing fees, and one $94 Court Call fee. (Lee Decl., ¶ 6-7.) The Court finds this to be a reasonable amount of sanctions to be imposed against Plaintiff Herron and her counsel of record, jointly and severally, for their abuse of the discovery process.

Therefore, the motions are GRANTED.

Plaintiff Herron is ordered to serve verified responses without objections to Defendant’s Special Interrogatories and Request for Production (Both Set Two) within 30 days of this ruling.

Plaintiff Herron and her counsel of record are ordered to pay Defendant $648.55, jointly and severally, within 30 days of this ruling.

Defendant is ordered to give notice of this ruling.