Judge Katherine Chilton, Case 22STLC06584 2023-03-27 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC06584, Date: 2023-03-27 Tentative Ruling

Case Number: 22STLC06584 Hearing Date: March 27, 2023 Dept: 25

PROCEEDINGS: MOTIONS TO COMPEL FURTHER RESPONSES;

REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiff Humberto Castillo Mariscal

RESP. PARTY: None

MOTION TO COMPEL FURTHER RESPONSES;

REQUEST FOR SANCTIONS

(CCP §§ 2030.300, 2031.310)

TENTATIVE RULING:

The Motion to Compel Defendant Angel Rodriguez’s Further Verified Responses to Plaintiff’s Form Interrogatories (Set One) is GRANTED. Defendant Angel Rodriguez is ordered to provide properly verified responses to all Form Interrogatories and to submit further responses to Form Interrogatories Nos. 112.1, 112.4, 112.5, 120.4 within fifteen (15) days of notice of the Court Order. The Court also grants Plaintiff’s request for sanctions in the amount of $960.00 to be paid by Defendant Angel and his counsel.

The Motion to Compel Defendant Violeta Rodriguez’s Further Verified Responses to Plaintiff’s Form Interrogatories (Set One) is GRANTED. Defendant Violeta Rodriguez is ordered to provide properly verified responses to Form Interrogatories within fifteen (15) days of notice of the Court Order. The Court also grants Plaintiff’s request for sanctions in the amount of $660.00 to be paid by Defendant Violeta and her counsel.

The Motion to Compel Defendant Angel Rodriguez’s Further Verified Responses to Plaintiff’s Demand for Production (Set One) is GRANTED. Defendant Angel Rodriguez is ordered to provide properly verified responses to the Demand for Production within fifteen (15) days of notice of the Court Order. The Court also grants Plaintiff’s request for sanctions in the amount of $660.00 to be paid by Defendant Angel and his counsel.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of March 23, 2023. [ ] Late [X] None

REPLY: None filed as of March 23, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On October 6, 2022, Plaintiffs Humberto Castillo Mariscal (“Mariscal”) and Cristina Gonzalez (“Gonzalez”), (collectively “Plaintiffs”), filed an action against Defendants Angel Rodriguez (“Angel”), Violeta Rodriguez (“Violeta”), and Jose Salvador Ortega (“Jose”), (collectively “Defendants”) arising out of an alleged motor vehicle accident that took place on November 28, 2021.

On November 15, 2022, Defendants Angel and Violeta filed an Answer to the Complaint.

On November 23, 2022, based on Plaintiffs’ request, the Court entered default against Defendant Jose. (11-23-22 Request for Entry of Default.)

On February 8 and 9, 2023, Plaintiff Mariscal filed the instant Motions:

1) Motion to Compel Further Responses of Defendant Angel Rodriguez to Form Interrogatories (Set One) and Request for Monetary Sanctions (“MTCF Form - Angel”);

2) Motion to Compel Further Responses of Defendant Violeta Rodriguez to Form Interrogatories (Set One) and Request for Monetary Sanctions (“MTCF Form - Violeta”);

3) Motion to Compel Further Responses of Defendant Angel Rodriguez to Production Demand (Set One) and Request for Monetary Sanctions (“MTCF PD - Angel”).

On February 27, 2023, the Court noted that the Motions had not been timely served on Defendants in compliance with Code of Civil Procedure § 1005(b) and continued the hearing on the Motion. (2-27-23 Minute Order.)

On the same day, Plaintiff filed proof of serving the Notice of Ruling of Continuance on Defendants.

No opposition has been filed.

II. Legal Standard

Code of Civil Procedure § 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that” the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. (Code of Civ. Proc. § 2030.300(a).) Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc. § 2030.300(c).) The motion must also be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code of Civ. Proc. §§ 2016.040, 2030.300(b).) California Rules of Court, rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, rule 3.1345(a)(2)).

Furthermore, “[o]n receipt of a response to demand for inspection . . ., the demanding party may move for an order compelling further response if the demanding party deems that (1) [a] statement of compliance with the demand is incomplete; (2) [a] representation of inability to comply is inadequate, incomplete, or evasive; [or] (3) [a]n objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310(a).) Notice of the motion must be given within 45 days of service of the verified response, otherwise the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2031.310(c).) The motion must also be accompanied by a meet and confer declaration. (Code Civ Proc., § 2031.310(b)(2).) Finally, California Rules of Court, rule 3.1345 requires that all motions involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345(a)(3)).

III. Discussion

A. Motion to Compel Further Responses to Form Interrogatories - Defendant Angel Rodriguez

a. Verification

Plaintiff moves to compel further verified responses of Defendant Angel Rodriguez to Form Interrogatories (Set One). (Mot. p. 2.) Plaintiff also seeks monetary sanctions against Defendant and his counsel in the amount of $1,560.00. (Ibid.)

On November 17, 2022, Plaintiff served Defendant Angel with Form Interrogatories (Set One). (Dunham Decl. ¶ 3, Ex. 1.) Plaintiff received “an improperly verified response,” so on January 6, 2023, Plaintiff’s counsel sent a meet and confer letter to defense counsel requesting properly verified answers no later than January 17, 2023. (Ibid. at ¶ 4, Exs. 2-3.) Plaintiff’s counsel informed defense counsel that a motion to compel would be filed if properly verified responses were not produced. (Ibid.) As of the date of the instant Motion, defense counsel has not responded to the letter and Defendant has not provided any further responses. (Ibid. at ¶ 6.)

Plaintiff argues that the verification of Defendant’s responses does not comply with California Code of Civil Procedure § 2015.5 because the verification is not dated by the declarant. (Mot. pp. 5-8.) Therefore, “the verification is clearly defective and improperly executed under penalty of perjury.” (Ibid.)

The Court finds that the Motion is timely and accompanied by a meet and confer declaration and a separate statement.

Code of Civil Procedure § 2030.210(a) requires a party responding to interrogatories to present responses “in writing under oath separately to each interrogatory.” Furthermore, Code of Civil Procedure § 2015.5 requires declarations, verifications, and writings under oath to be made under penalty of perjury, subscribed by the declarant, set forth the date and place of execution, and be made under the laws of the State of California. Indeed, where a declaration in support of a motion is not signed under penalty of perjury under the laws of the State of California as required by Section 2015.5, it has no evidentiary value and a court must not consider it. (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217; see also Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.App.4th 601, 610-611 [finding that “each term has meaning and appears for a reason.”)

Here, the verification attached to Defendant’s response does not comply with the content requirements of § 2015.5, as it does not set forth the date of execution. Thus, the Court finds that further verified responses are warranted.

b. Form Interrogatories

In addition to requesting properly verified responses, Plaintiff seeks further responses to specific interrogatories, as set forth in the Separate Statement. As discussed above, Plaintiff has attempted to meet and confer with Defendant prior to filing the instant Motion.

Form Interrogatory 112.1 requires Defendant to “[s]tate the name, ADDRESS, and telephone number of each individual who has knowledge of facts relating to the INCIDENT, and specifying his or her area of knowledge.” (Sep. St. p. 2.) In response, Defendant provided the following statement to sub-parts (a)-(d): “Propounding party, Responding party, who may be contacted through attorney of record (657) 272-8332; Ricardo Cervantes, Responding Party’s Passenger.” (Ibid.) Plaintiff argues that Defendant has not provided passenger Ricardo Cervantes’s phone number or address and has responded to subparts (a)-(d) that are not part of the interrogatory. (Ibid. at p. 3.) Thus, the response does not comply with the requirements of Code of Civil Procedure § 2030.220 for “complete and straightforward” information that is “reasonably available to the responding party.” The Court finds that the response is incomplete and Defendant does not indicate that he does not have the information based on “a reasonable and good faith effort to obtain the information” as required by § 2030.220. Thus, a further response is warranted.

Form Interrogatory 112.4 requires Defendant to “[i]dentify each document or photograph that describes or depicts any place, object, or individual concerning the INCIDENT or plaintiff’s injuries, or attach a copy. (If you do not attach a copy, state the name, ADDRESS, and telephone number of each PERSON who had the original documents or photograph or a copy.).” (Sep. St. pp. 3-4.) In response, Defendant directs Plaintiff to “See Exhibits A and C.” (Ibid. at p. 4.) However, Plaintiff states that there are no exhibits attached to the response. (Ibid.) The Court finds that Defendant’s response is incomplete as there is no information provided and the exhibits referenced are not attached. Thus, a further response is warranted.

Form Interrogatory 112.5 requires Defendant to “[i]dentify each other item of physical evidence that shows how the INCIDENT occurred or the nature or extent of plaintiff's injuries, and state the location of each item, and the name, ADDRESS, and telephone number of each PERSON who hast [sic] it.” (Sep. St. p. 4.) In response, Defendant again directs Plaintiff to “See Exhibits A and C; Chavez Legal Group 11900 N. 26th St., Ste 200 Edinburg, Texas 78539.” (Ibid. at p. 5.) As with the previous interrogatory, Plaintiff states that the exhibits are missing. (Ibid.) The Court finds that Defendant’s response is incomplete as there is no information provided and the exhibits referenced are not attached. Thus, a further response is warranted.

Form Interrogatory 120.4 states that “[f]or each vehicle involved in the INCIDENT,” Defendant must provide “the name, ADDRESS, and telephone number of each occupant other than the driver.” (Sep. St. p. 5.) Defendant provided the following information: “(a) Violeta Rodriguez, 323 South Avenue 57, Apt.4, Los Angeles, CA 90042. Car has since been sold, does not recall the name, vehicle sold to a third party early 2022; (b) Unknown to responding party; (c) Unknown to responding party.” (Ibid.) Plaintiff argues that Defendant’s “response fails to indicate the name, address and telephone number of Defendant’s passenger Ricardo Cervantes described in response to form interrogatory 112.1” and Defendant has responded to subparts that do not exist. (Ibid. at pp. 5-6.) The Court finds that Defendant’s response is incomplete and thus, a further response is warranted.

The Court finds that Plaintiff has demonstrated that Form Interrogatories Nos. 112.1, 112.4, 112.5, 120.4 warrant further responses and that all the responses to the Form Interrogatories must be properly verified. For this reason, Plaintiff’s Motion to Compel Defendant Angel’s Further Responses to Form Interrogatories is GRANTED.

c. Sanctions

Plaintiff requests monetary sanctions in the amount of $1,560.00. (Mot. pp. 8-9.) Plaintiff argues that sanctions are warranted under Code of Civil Procedure §§ 2030.250, 2023.010, and 2023.020. (Ibid.) Given Defendant’s “blatant refusal” to provide a properly verified response to the interrogatories and meet and confer with Plaintiff, Plaintiff was compelled to file the instant Motion. (Ibid. at pp. 9-10.) Plaintiff’s counsel requests attorney’s fees, at a rate of $300.00 per hour, and costs as follows: three (3) hours for drafting the instant Motion, one (1) hour to review an opposition and prepare a reply, one (1) hour to travel and attend the hearing on the Motion, and a filing fee of $60. (Dunham Decl. ¶ 7.)

Plaintiff have incorrectly cited to § 2030.250, as nothing in that section pertains to monetary sanctions. The language cited appears to come from § 2030.290(c), which imposes sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories” or a party that fails to obey a court order compelling answers to the form interrogatories.” The Court does not find that sanctions are warranted under this section as Defendant has not made or opposed a motion to compel or failed to obey a court order to provide responses.

Plaintiff also cites to § 2023.010 for the contention that failing to respond to an authorized method of discovery constitutes misuse of the discovery process. However, on its own, this section does not authorize the Court to impose sanctions.

Finally, Plaintiff cites to § 2023.020, which states that “the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” The Court finds the sanctions may be imposed pursuant to § 2023.020, as Plaintiff has filed the instant Motion due to defense counsel’s failure to meet and confer regarding the deficiencies in the response to Plaintiff’s discovery request.

However, the Court finds Plaintiff’s counsel request in the amount of $1,560.00 to be excessive. Thus, the Court grants $960.00 in sanctions as follows: attorney’s fees, at a billing rate of $300.00 per hour, for two (2) hours of drafting the instant Motion and one (1) hour to attend the hearing, and filing fees in the amount of $60.

B. Motion to Compel Further Responses to Form Interrogatories - Defendant Violeta Rodriguez

a. Verification

Plaintiff Mariscal moves to compel further verified responses of Defendant Violeta Rodriguez to Form Interrogatories (Set One). (Mot. p. 2.) Plaintiff also seeks monetary sanctions against Defendant and her counsel in the amount of $1,560.00. (Ibid.)

On November 17, 2022, Plaintiff served Defendant Violeta with Form Interrogatories (Set One). (Dunham Decl. ¶ 3, Ex. 1.) Plaintiff received “an improperly verified response,” so on January 6, 2023, Plaintiff’s counsel sent a meet and confer letter to defense counsel requesting properly verified answers no later than January 17, 2023. (Ibid. at ¶ 4, Exs. 2-3.) Plaintiff’s counsel informed defense counsel that a motion to compel would be filed if properly verified responses were not produced. (Ibid.) As of the date of the instant Motion, defense counsel has not responded to the letter and Defendant has not provided any further responses. (Ibid. at ¶ 6.)

The Court finds that the Motion is timely and accompanied by a meet and confer declaration. Although Plaintiff has not filed a separate statement, its objection stems from the verification and thus, the Court finds that a separate statement is not necessary for this Motion.

b. Sanctions

Plaintiff requests monetary sanctions in the amount of $1,560.00. (Mot. pp. 8-9.) Plaintiff argues that sanctions are warranted under Code of Civil Procedure §§ 2030.250, 2023.010, and 2023.020. (Ibid.) Given Defendant’s “blatant refusal” to provide a properly verified response to the interrogatories and meet and confer with Plaintiff, Plaintiff was compelled to file the instant Motion. (Ibid. at pp. 9-10.) Plaintiff’s counsel requests attorney’s fees, at a rate of $300.00 per hour, and costs as follows: three (3) hours for drafting the instant Motion, one (1) hour to review an opposition and prepare a reply, one (1) hour to travel to and attend the hearing on the Motion, and a filing fee of $60. (Dunham Decl. ¶ 7.)

However, the Court finds Plaintiff’s counsel request in the amount of $1,560.00 to be excessive. Thus, the Court grants $660.00 in sanctions as follows: attorney’s fees, at a billing rate of $300.00 per hour, for one (1) hour of drafting the instant Motion and one (1) hour to attend the hearing, and filing fees in the amount of $60.

C. Motion to Compel Further Responses to Demand for Production - Defendant Angel Rodriguez

a. Verification

Plaintiff moves to compel further verified responses of Defendant Angel Rodriguez to Demand for Production (Set One). (Mot. p. 2.) Plaintiff also seeks monetary sanctions against Defendant and his counsel in the amount of $1,560.00. (Ibid.)

On November 17, 2022, Plaintiff served Defendant Angel with Production Demand (Set One). (Dunham Decl. ¶ 3, Ex. 1.) Plaintiff received “an improperly verified response,” so on January 6, 2023, Plaintiff’s counsel sent a meet and confer letter to defense counsel requesting properly verified answers no later than January 17, 2023. (Ibid. at ¶ 4, Exs. 2-3.) Plaintiff’s counsel informed defense counsel that a motion to compel would be filed if properly verified responses were not produced. (Ibid.) As of the date of the instant Motion, Defense counsel has not responded to the letter and Defendant has not provided any further responses. (Ibid. at ¶ 6.)

Plaintiff argues that the verification of Defendant’s responses does not comply with California Code of Civil Procedure § 2015.5 because the verification is not dated by the declarant. (Mot. pp. 5-7.) Therefore, “the verification is clearly defective and improperly executed under penalty of perjury.” (Ibid.)

Code of Civil Procedure § 2031.250 requires a party responding to a “demand for inspection, copying, testing, or sampling” to “sign the response under oath unless the response contains only objections.” Furthermore, Code of Civil Procedure § 2015.5 requires declarations, verifications, and writings under oath to be made under penalty of perjury, subscribed by the declarant, set forth the date and place of execution, and be made under the laws of the State of California. Indeed, where a declaration in support of a motion is not signed under penalty of perjury under the laws of the State of California as required by Section 2015.5, it has no evidentiary value and a court must not consider it. (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217; see also Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.App.4th 601, 610-611 [finding that “each term has meaning and appears for a reason.”)

b. Sanctions

Plaintiff requests monetary sanctions in the amount of $1,560.00. Plaintiff argues that sanctions are warranted under Code of Civil Procedure §§ 2030.300, 2023.010, and 2023.020. (Mot. pp. 7-9.) Given Defendant’s “blatant refusal” to provide a properly verified response to the demand for production and meet and confer with Plaintiff, Plaintiff was compelled to file the instant Motion. (Ibid. at pp. 8-9.) Plaintiff’s counsel requests attorney’s fees, at a rate of $300.00 per hour, and costs as follows: three (3) hours for drafting the instant Motion, one (1) hour to review an opposition and prepare a reply, one (1) hour to travel to and attend the hearing on the Motion, and a filing fee of $60. (Dunham Decl. ¶ 7.)

Plaintiff has incorrectly cited to § 2030.300, as the section pertains to interrogatories. The language cited appears to come from § 2031.300(c), which imposes sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling” or a party that fails to obey a court order compelling answers to the demand for production. The Court does not find that sanctions are warranted under this section as Defendant has not made or opposed a motion to compel or failed to obey a court order to provide responses.

D. Conclusion & Order

For the foregoing reasons,

The Motion to Compel Defendant Angel Rodriguez’s Further Verified Responses to Plaintiff’s Form Interrogatories (Set One) is GRANTED. Defendant Angel Rodriguez is ordered to provide properly verified responses to all Form Interrogatories and to specifically submit further responses to Form Interrogatories Nos. 112.1, 112.4, 112.5, 120.4 within fifteen (15) days of notice of the Court Order. The Court also grants Plaintiff’s request for sanctions in the amount of $960.00 to be paid by Defendant Angel and his counsel.

Moving parties are ordered to give notice.