LYNETTE ASUR ET AL VS WALTER ALEXANDER BARRIOS-GIRON ET AL

Motion to Compel Production of Documents at Trial

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On August 2, 2016, Plaintiffs Lynette Asur and Meir Asur filed a complaint against Defendant Walter Alexander Barrios-Giron, Eduardo Vicente Barrios, and Edmundo Escobar for negligence arising out of a motor vehicle accident that occurred on August 5, 2014.

On November 19, 2019, Plaintiff filed a motion to compel the production of documents at trial pursuant to California Code of Civil procedure section 2031.300, subdivision (b).

Trial is set for December 9, 2019.

PARTY’S REQUESTS

Defendant Walter Alexander Barrios-Giron (“Moving Defendant”) asks the Court to compel Plaintiff Lynette Asur to respond to his Request for Production (Set One).

Moving Defendant also asks the Court to impose $1,644 in monetary sanctions against Plaintiff Lynette Asur for her abuse of the discovery process.

LEGAL STANDARD

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 privilege 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, subdivision (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 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. § 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 December 12, 2018, Moving Defendant served Request for Production (Set One) on Plaintiff Lynette Asur by U.S. mail.  (Aportadera-Torres Decl., ¶ a, Exh. A.)  On August 6, 2019, Plaintiff Lynette Asur’s counsel stated she was going through personal, family health emergency issues.  (Aportadera-Torres Decl., ¶ c.) Asur to serve verified responses without objections, providing an ultimate deadline of November 4, 2019.  (Aportadera-Torres Decl., ¶¶ d, g, Exh. C-D.)  No responses had been received as of the signing of Arabelle Aportadera-Torres, Esq.’s declaration on November 19, 2019. (Aportadera-Torres Decl., ¶ i.)

The Court finds the motion is properly granted.  Moving Defendant’s Request for Production (Set One) was properly served on Plaintiff Lynette Asur.  Plaintiff Lynette Asur did not provide timely responses.  Plaintiff Lynette Asur’s counsel generally stated she was going through personal and family medical hardship.  In response, Moving Defendant provided multiple opportunities for the outstanding responses to be served.  As there is no evidence of the outstanding responses having been served on Moving Defendant, the motion to compel responses should be granted.  The Court finds, however, because of the personal and family hardships faced by Plaintiff’s counsel, it would be unjust to impose any sanctions on Plaintiff or her counsel.   

Accordingly, the motion to compel is GRANTED, but the request for sanctions is DENIED.

Plaintiff Lynette Asur is ordered serve verified responses without objections to Moving Defendant’s Request for Production (Set One) within 20 days of this ruling.

Moving Defendant is ordered to give notice of this ruling.

Motions to Compel Responses to Form Interrogatories and Special Interrogatories

Having considered the moving papers, the Court rules as follows. No oppositions have been filed.

BACKGROUND

On August 2, 2016, Plaintiffs Lynette Asur (“Plaintiff”) and Meir Asur filed a complaint against Defendant Walter Alexander Barrios-Giron (“Defendant”), Eduardo Vicente Barrios, and Edmundo Escobar for negligence arising out of a motor vehicle accident.

On November 19, 2019, Defendant filed the two instant motions to compel responses. The Court notes that Defendant also filed a motion concerning request for production of documents that is currently scheduled for a hearing on December 19, 2019. The Court does not address that motion because it is not yet before the Court.

Trial is set for February 18, 2020.

PARTY’S REQUEST

Defendant requests a court order compelling Plaintiff to provide responses to the Form Interrogatories (Set One) and Special Interrogatories (Set One).

Defendant also requests a court order imposing $1,644.00 in monetary sanctions against Plaintiff only for each motion.

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. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

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.)

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

Defendant served Plaintiff with Form Interrogatories (Set One) and Special Interrogatories (Set One) on December 12, 2018. (Aportadera-Torres Decl., ¶ a, Ex. A.) Plaintiff’s responses were due within 30 days. (Ibid.)  No responses were received by that date and Defendant’s counsel communicated with Plaintiff’s counsel concerning the outstanding discovery in writing and in person. (Id. ¶¶ b-f, Ex. B-D.)  Defendant’s counsel gave additional time until November 4, 2019 but no responses were received by that date. (Id. ¶ g-j.)  Defendant’s counsel again wrote to Plaintiff’s counsel but, as of the filing of these motions, no responses had been received. (Id. ¶¶ j.) 

As Defendant properly served discovery requests and Plaintiff failed to serve responses, the Court finds Defendant is entitled to an order directing Plaintiff to provide responses to the discovery requests served on Plaintiff.

Defendant requests $1,644.00 ($395.00/hr x 4 hrs, plus $61.65 filing fee) in monetary sanctions for each motion. (Id. ¶ l.)  The Court finds this amount to be unreasonable given the motions are relatively basic and unopposed.  Additionally, Defendant’s counsel does not explain her experience that justifies the requested rate.  Therefore, the Court reduces the requested rate. The Court thus awards monetary sanctions in a total amount of $620.00 ($200.00/hr x 2.5 hrs, plus $120.00 filing fees).

Based on the foregoing, Defendant’s motions are GRANTED.

The Court orders Plaintiff to provide verified responses, without objections, to Defendant’s Form Interrogatories (Set One) and Defendant’s Special Interrogatories (Set One) within 20 days of this order.

The Court also orders Plaintiff to pay Defendant monetary sanctions in the total amount of $620.00, within 30 days of this order.

Defendant is ordered to give notice of this ruling.