Sonia Gonzalez vs. Robert Murray		CASE NO.113CV254055
DATE: 25 July 2014	TIME: 9:00	LINE NUMBER:10

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 24 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 July 2014, the following motions were argued and submitted: (1) Defendant’s notice of motion and motion to compel answers to form interrogatories[1]; (2) memorandum of points and authorities; and (3) request for reasonable sanctions and attorneys’ fees from Sonia Gonzalez (“Plaintiff”).

Plaintiff did not file formal opposition to the motion.[2]

Statement of Facts

This is a personal injury action that arises from a car accident located in the city of San Jose, California, in the fall of 2011. On 20 October, 2011 Plaintiff was the seat belted driver of a Nissan Pickup and, while driving through the intersection of Cambrian Drive and apparently Union Avenue, was struck head on by the Defendant’s vehicle which allegedly made an unlawful illegal left hand turn directly in the path of the Plaintiff’s vehicle. As a result of the incident, Plaintiff claims that she was hurt and injured in her health, strength and activity, including sustaining injuries to her body, shock and injury to her nervous system. Plaintiff further alleges that such injuries caused from this incident will result in permanent disability.

On 2 October, 2013, Plaintiff filed the operative complaint against Robert Murray (“Defendant”), asserting claims for negligence. Plaintiff seeks general and special damages, including all medical expenses, loss of earnings and earning capacity, and the costs of suit incurred as a result of the incident.

Discovery Dispute

On 8 April, 2014 Defendant’s counsel mailed a “Demand for Production” to Plaintiff’s counsel to produce, permit inspection[s1] , and copy the following documents: (1) repair estimates and repair invoices for property damage; (2) all documents such as photographs, motion pictures and videotapes of all property damage; (3) all documents such as photographs, motion pictures and videotapes of any injuries Plaintiff sustained; (4) all documents such as photographs, motion pictures and videotapes that depict the scene of the incident; (5) documents relating to written, oral, transcribed, videotaped, or recorded statements of any witnesses relative to the incident; (6)W-2, 1099 forms, payroll check stubs and writings from Plaintiff’s employer that indicate wage loss; (7) Any medical records, medical reports, progress notes, prescriptions and billings for any treatment from a health care provider for any injury Plaintiff sustained; (8) Traffic Collision Report and any reports made by any person concerning the incident; (9) any documents in supporting existence of an damages outside what Plaintiff claims incurred as a result of the incident; (10)  a copy of Plaintiff’s social security car; (11) a copy of Plaintiff’s driver’s license; (12) W-2, 1099 forms, payroll check stubs and writings that detail Plaintiff’s earnings for the five years preceding the incident; (13) documents of Plaintiff’s personal diary and calendar; (14) a copy of the certificate of registration of the vehicle Plaintiff occupied at the time of the incident; (15) any document establishing Plaintiff’s financial responsibility, including a copy of the declaration page of any policy of insurance incurring the vehicle at the time of the incident; (16) a copy of the cellular phone bill for the date of the incident; (17) all documentation that identify Plaintiff’s name, address, and telephone number; (18) all documents evidencing enrollment in Medicare Part A; (19) all documents evidencing enrollment in Medicare Part B

The same day, Plaintiff’s counsel was served via a sealed envelope the “Form Interrogatories-General” as well as the “Special Interrogatories.”

On 8 May, 2014 Defendant served Plaintiff with a “Case Management Statement” requesting a jury trial and indicated that in June 2014 the Written Discovery of Plaintiff and Deposition of Plaintiff would be completed. Set for the month of July 2014, the Subpoena of Medical and other records would be completed. Finally, in the month of September 2014, the Medical Examination of Plaintiff (IME) would be completed[s2] .

On 20 May, 2014 Defendant’s counsel sent a letter informing to Plaintiff’s counsel that their office was served with written discovery on 8 April, 2014, however Defendant’s counsel had yet to receive a response. Defendant’s counsel wished to seek these responses in (10) days of the letter being sent.

On 30 May, 2014 Defendant’s counsel sent a letter to Plaintiff’s counsel indicating that the verified responses to the Written Discovery including the “Form Interrogatories and Special Interrogatories” and “Demand for Production” served on 8 April, 2014 were not received. Defendant’s counsel sought for these outstanding discovery responses in (10) days or move the court for appropriate orders compelling responses.[3]

On 10 June, 2014 Plaintiff’s counsel contacted Defendants counsel via telephone and informed Defendant’s counsel that they had in their possession Defendant’s written discovery request and correspondence.  However, no extension was made nor granted

Analysis

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.)

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

To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show that the responding party was properly served with the discovery request or demand to produce, that the deadline to respond has passed, and that the responding party did not timely respond to the discovery request or demand to produce. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.

Defendant has provided proof of service for the first set of form interrogatories, special interrogatories, and inspection demands. 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 motion to compel responses to Defendant’s discovery requests is GRANTED.  Plaintiff is to serve code compliant responses to the first set of form interrogatories, first set of special interrogatories and first set of inspection demands within 20 days of the filing of this order.

Sanctions

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.

The court shall impose sanctions against a party who unsuccessfully makes or opposes a motion to compel responses to demands for production, unless it finds that party acted with “substantial justification” or other circumstances render sanctions “unjust” California Code of Civil Procedures § 2031.300 (c)

The imposition of sanctions in this case would be just. Plaintiff was served with Form Interrogatories (Set Number One), Special Interrogatories (Set Number One), and Demand for Production (Set Number One), on 8 April, 2014. When Plaintiff failed to respond to the interrogatories and production requests, as required, defense counsel corresponded with Plaintiff on 20 May, 2014, 30 May, 2014, and 10 June, 2014 requesting the overdue answers to Form Interrogatories, Special Interrogatories, and Demand for Production. Despite this correspondence, Plaintiff has refused to provide the answers, and production responses.

Furthermore, 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. Rule of Court 3.1348 (a)

the request is code compliant.  The court will award one hour of attorney time plus the filing fees for the motion, or the sum of $240.00.  Defendant also seeks sanctions for time possibly spent arguing the motion. The Court does not grant speculative sanctions.  Sanctions should be awarded only for expenses actually incurred.  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)  If Defendant does orally argue before the Court, the Defendant may bring up the issue of further sanctions at that time.

Plaintiff is to pay the sum of $240 to counsel for Defendant within 20 days of the date of the filing of this order.

Order

Defendant’s motion to compel responses to Defendant’s discovery requests is GRANTED.  Plaintiff is to serve code compliant responses to the first set of form interrogatories, first set of special interrogatories and first set of inspection demands within 20 days of the filing of this order.

Plaintiff is to pay the sum of $240 to counsel for Defendant within 20 days of the date of the filing of this order.