Nguyen v. Dong, et al.		CASE NO. 113CV255391
DATE: 25 July 2014	TIME: 9:00	LINE NUMBER: 12

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 motion of Plaintiff Thanh Nguyen to compel responses to requests for production of documents and interrogatories, the motion to have requests for admission deemed admitted, and for monetary sanctions was argued and submitted.  Defendant Thao Tran failed to file an opposition to the motion. [1]

I.             Background

This matter arises out of an employment law issue. Plaintiff alleges that Defendants failed to pay her properly, that one or more Defendants sexually harassed her or were complicit in the harassment. Defendants deny the allegations.

II.            Discovery Dispute

On 9 May 2014, Plaintiff served a set of Requests for Admission, two sets of form interrogatories, and one set of requests for the production of documents on Defendant Thao Tran. On 18 June 2014, after receiving no responses, Plaintiff’s counsel sent Defendant’s counsel a letter demanding responses. Defendant’s counsel replied the same day indicating that counsel sent the requests to his client.[2] On 27 June 2014, Plaintiff filed the instant motion. Plaintiff has still not received any responses to any discovery.

III.           Analysis:

A.     Motion to Compel Responses to Requests for Production of Documents and Interrogatories

A demand to produce documents may be propounded upon an adverse party in an attempt to seek relevant information. Code Civ. Proc. § 2031.010. Absent an extension granted by counsel, a party must respond to each request for the production of documents within 30 days, unless the propounding party grants an extension. Code Civ. Proc. § 2031.260. A code-compliant response states that the responding party will comply fully, comply partially while stating a valid reason for not fully complying, or that party will not comply while stating a valid reason for not fully complying. Code Civ. Proc. § 2031.220; Code Civ. Proc. § 2031.230. A party may seek a motion to compel production when the adverse party fails to respond to the request for production in a timely fashion. Code Civ. Proc. § 2031.300(b).

A demand to answer interrogatories may be propounded upon an adverse party. Code Civ. Proc. §2030.010. Absent an extension granted by counsel, a party must respond to each interrogatory within 30 days, unless the propounding party grants an extension. Code Civ. Proc. §2030.260. A party making an untimely response waives all objections in that response. Code Civ. Proc. §2030.290(a). A code-compliant response must be as complete and straightforward as the information reasonably available to the party permits. Code Civ. Proc. §2030.220. If a party lacks personal knowledge to provide complete information, that party shall so state, but shall also make a reasonable and good faith effort to obtain such information. Code Civ. Proc. §2030.220(c). A party may seek a motion to compel responses when the adverse party fails to respond to the demand within the timeframe specified by statute or extension. Code Civ. Proc. §2030.290(a).

Here, Plaintiff served discovery requests upon Defendant on 9 May 2014. Responses were due to be served by 13 June 2014. Defendant never provided responses. An order to compel responses is appropriate

As a result, Plaintiff’s motion to compel responses to Form Interrogatories – General, Set One, Form Interrogatories – Employment Law, Set One, and Requests for Production of Documents, Set One is GRANTED. Defendant Thao Tran shall serve verified, code-compliant responses upon Plaintiff within 20 days of the date of this order.

B.     Motion to have Matters Deemed Admitted

A party may move to have requests deemed admitted if the party serves no response or a late response. Code Civ. Proc. §2033.280(b). There is no deadline to file a motion to deem requests for admissions admitted, aside from before the discovery cut-off date. Code Civ. Proc. §§2024.020, 2033.280(b). The responding party may avoid having the responses deemed admitted by serving a response that is in substantial compliance with the discovery code’s requirements to properly answer requests for admission and the failure to serve a response was the result of mistake, inadvertence, or excusable neglect. Code Civ. Proc. §2033.280(a).

Here, Plaintiff served requests for admission upon Defendant on 9 May 2014. Responses were due 23 June 2014. Defendant never provided responses. An order to deem the answers to the requests for admission as admitted is appropriate.

Plaintiff’s motion to have the matters in Requests for Admission, Set One deemed admitted is GRANTED.

C.     Request for Monetary Sanctions

Plaintiff makes a request for monetary sanctions against Defendant.  The request is code-compliant.

In support of the request for sanctions, Plaintiff cites Code of Civil Procedure, §§ 2023.010, 2023.030, 2023.040 and 2033.280.  Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.”  As such, section 2023.030 does not provide an independent basis for an award of sanctions and thus is not self-executing.  In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

The California Code of Civil Procedure states that the Court shall impose monetary sanctions in many different situations. See Code Civ. Pro. § 2030.290(c) (Imposing monetary sanctions for a motion to compel answers to interrogatories); Code Civ. Pro. § 2031.300(c) (Imposing monetary sanctions against losing party in motion to compel response to inspection demand)

Section 2033.280 addresses sanctions when a party fails to make a timely response to requests for admission, requiring a motion to have matters deemed admitted. Even if a party serves compliant responses prior to the hearing, sanctions are still warranted. Code Civ. Proc. §2033.280.

Monetary sanctions are appropriate in this matter.

Plaintiff’s counsel declares that his customary billing rate is $295.00 per hour. This is a reasonable rate within Santa ClaraCounty.

Plaintiff’s counsel declares that he spent 7 hours on the instant motions. The Court believes a motion of this quality should take at most 2 hours, and will grant sanctions for that amount of work.[3] The Court calculates that to be $590.00

Plaintiff’s counsel also seeks reimbursement of $180.00 in filing fees and costs for this motion. This cost could have been reduced had counsel reduced the two motions before the Court to one motion. The Court will award $180.00 for the filing fees of the two motions.

Plaintiff’s request for monetary sanctions is GRANTED IN PART. Defendant will pay $640.00 to Plaintiff’s counsel within 20 days of the date of this order.

IV.           Conclusion and Order

Plaintiff’s motion to compel responses to Form Interrogatories – General, Set One, Form Interrogatories – Employment Law, Set One, and Requests for Production of Documents, Set One is GRANTED. Defendant Thao Tran shall serve verified, code-compliant responses upon Plaintiff within 20 days of the date of this order.

Plaintiff’s motion to have the matters in Requests for Admission, Set One deemed admitted is GRANTED.

Plaintiff’s request for monetary sanctions is GRANTED IN PART. Defendant will pay $640.00 to Plaintiff’s counsel within 20 days of the date of this order.