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Notice of Motion to Compel Perez Responses to Special Interrogatories

Attorneys for Defendants

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUDICIAL DISTRICT , an Individual, Plaintiff, vs. , a California Corporation;, an Individual, and DOES 1 to 25, Inclusive, Defendants. Case No. NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF TO PROVIDE VERIFIED RESPONSES TO SPECIAL INTERROGATORIES SET NO. ONE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; REQUEST FOR SANCTIONS IN THE AMOUNT OF $170.00 PURSUANT TO C.C.P SECTIONS 2023.010(d), 2023.030(a) and 2030.290(c); DECLARATION OF IN SUPPORT OF MOTION AND SANCTIONS REQUEST; [PROPOSED] ORDER
Action Filed:

Date: July 31, 2009 Time: 9:00 A.M.

Dept.: Judge: Hon. Trial Date: Not Set

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on., in Department C of the above-entitled court, located at located at , 700 Civic Center Drive, Santa Ana, California 92701, Defendant, (hereinafter Defendant)

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will move the court for an Order compelling Plaintiff, (hereinafter Plaintiff) to provide complete and verified responses to Special Interrogatories Set No. One propounded by Defendant on April 13, 2009. PLEASE TAKE FURTHER NOTICE that Defendant will also move the court for an Order imposing monetary sanctions against Plaintiffs and their attorney of record, , in the amount of $170.00. for their failure to participate in the discovery process. The request for an Order compelling Plaintiff to provide complete and verified responses to Special Interrogatories Set No. One is made pursuant to California Code of Civil Procedure section 2030.290, on grounds that Plaintiff failed to provide responses, verified or otherwise, to Special Interrogatories Set No. One. The request for an Order imposing monetary sanctions is made pursuant to California Code of Civil Procedure sections 2023.010(d), 2023.030(a) and 2030.290(c), on the grounds that Plaintiff have failed to provide any responses, verified or otherwise, to said Special Interrogatories. Moreover, Plaintiff have waived any right to object to the interrogatories on the grounds that Plaintiff have willfully failed to respond to the interrogatories within the statutory time limit or anytime thereafter. This motion is based on this notice, the attached Memorandum of Points and Authorities, the concurrently filed declarations, the pleadings on file herein, and any oral and/or documentary evidence as may be presented at the hearing. Dated: , LLP

By:

_______________________

Attorneys for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES 1. SUMMARY OF THE CASE On or about December 1, 2008 Plaintiff filed the instant action for alleged damages arising out of a three car collision on in Los Alamitos, California. The collision occurred on December 1, 2006. The complaint contains a cause of action for negligence and negligence per se. In an effort to determine liability, any comparative fault and the extent of the claims and damages sought by Plaintiff, Defendant served Plaintiff with Special Interrogatories (Set No. 1) on or about April 13, 2009. (Special Interrogatories, (Set No. 1) propounded to Plaintiff, attached hereto as Exhibit 2. Declaration of at 3 attached hereto as Exhibit 4.) Plaintiffs responses to the discovery were due to Defendant on or before May 18, 2009. However, Plaintiffs responses were not forthcoming. (Decl. of Exhibit 4 at 4.) Accordingly, on May 19, 2009, counsel for Defendant sent a meet and confer letter to Plaintiffs counsel requesting that responses be provided to the outstanding discovery requests within fifteen days of receipt of the letter. (Letter to Plaintiffs counsel dated May 19, 2009, attached hereto as Exhibit 5, Decl. of Exhibit 4 at 5.) No response to this correspondence was received. (Decl. of Exhibit 4at 5.) To date, Plaintiff has not provided Defendant with responses, verified or otherwise, to the discovery. As a result, counsel for Defendant was forced to file the instant motion. 2. CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 2030 ALLOWS A PROPOUNDING PARTY TO MOVE THE COURT FOR AN ORDER COMPELLING ANSWERS TO INTERROGATORIES WITHOUT OBJECTION BY THE RESPONDING PARTY Code of Civil Procedure Section 2030.290(a) provides in part: If a party to whom interrogatories have been directed fails to serve a timely response, that party waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). In the instant action, Plaintiff has wholly failed to respond to Defendants discovery requests. Moreover, Plaintiff and his counsel have also failed to respond to Defendants correspondence seeking said discovery responses. It is therefore requested that this Court order Plaintiff to provide complete

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and verified responses to Special Interrogatories, Set No. One, without objection. Plaintiffs right to object has been waived by their failure to timely respond. 3. THE COURT SHOULD AWARD DEFENDANT EXPENSES AND ATTORNEY'S FEES IN CONNECTION WITH BRINGING THIS MOTION Under Code of Civil Procedure section 2023.010(d), failure to respond to discovery requests constitutes a misuse of the discovery process. As it relates to Plaintiffs knowing and willful failure to respond to Defendants Special Interrogatories, Code of Civil Procedure 2023.030(a) provides in pertinent part: The 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 attorneys fees, incurred by anyone as a result of that conduct. In the instant case, Plaintiff has continued to frustrate the discovery process by failing to provide verified responses to Special Interrogatories, Set No. One propounded by Defendant despite Defendants requests to provide said information. Moreover, in an attempt to avoid a Motion to Compel, counsel for Defendant sent a meet and confer letter to request responses and extend the time for Plaintiff to respond to said Special Interrogatories. (Exhibit 2). Despite Defendants attempts, no responses were forthcoming. Therefore, in order to conduct its discovery and properly prepare this matter for trial, Defendant has been forced to file this Motion to Compel and Request for Sanctions. Plaintiffs have acted willfully and without substantial justification in failing to respond to the Special Interrogatories at issue. Accordingly, the court should impose monetary sanctions against Plaintiff and/or their attorney of record in the amount of $170.00. Furthermore, Code of Civil Procedure 2030.300(d) provides, in pertinent part, that: "The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification..." In the unlikely event Plaintiff oppose this motion, this court must impose monetary sanctions because the opposition would be baseless and constitute a further abuse of the discovery process. Defendant has been more than reasonable in providing Plaintiff with additional time within which to

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respond, yet Plaintiff has completely ignored the discovery and any opposition to this motion would be without merit under these circumstances. The rationale for awarding sanctions pursuant to the above-referenced code sections is to provide for the orderly conduct of the courts business and to guard against procedures and unnecessary diligence which would tend to hinder, hamper or delay the conduct and dispatch the proceedings. (Ellis v. Roshei Corp., (1983) 143 Cal.App.3d 642, 648.) Plaintiffs failure to respond to discovery has forced Defendant to expend considerable time and expense to simply obtain the responses they are entitled to. Therefore, sanctions are appropriate given Plaintiffs unreasonable conduct. Specifically, Defendant has incurred reasonable attorneys fees in bringing this motion in the amount of $130.00 for one hour (1.0) at the reasonable rate of $130.00 per hour for research and drafting the within motion and $40.00 for the filing fee to file the within motion. (Decl. of Exhibit 4at 8 and 9). It should be noted that Defendant is not seeking sanctions for the time its counsel has incurred in seeking said responses by way of meet and confer attempt and the time its counsel will incur in traveling to and arguing said motion, as such a request was made in Defendants concurrently filed Motion to Compel responses to Form Interrogatories, Set No. One. 4. DEFENDANT HAS A RIGHT TO CONDUCT DISCOVERY The Public policy behind civil discovery was set out in the case of Fuss v. Superior Court (1969) 273 Cal.App.2d 807 wherein the court stated: Civil discovery statutes are intended to accomplish the following results: (1) to give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury; (2) to provide an effective means of detecting and exposing false, fraudulent and shame claims and defenses; (3) to make available, in a simple, convenient and inexpensive way, facts which otherwise could not be provided except with great difficulty; (4) to educate the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlement; (5) to expedite litigation; (6) to safeguard against surprise; (7) to prevent delays; (8) to simplify and narrow the issues; and (9) to expedite and facilitate both preparation and trial. 273 Cal.App.2d at 815-816. By failing to provide any responses to Defendants Special Interrogatories, Plaintiff has frustrated the discovery policies set forth in the Fuss case and should not be able to continue such conduct.

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5.

CONCLUSION For the foregoing reasons, Defendant respectfully requests that the court order Plaintiff to

provide complete and verified responses, without objection, to Defendants Special Interrogatories, Set No. One. Defendant further request that the court order Plaintiff and/or its attorney to pay Defendants attorney's fees and costs incurred in filing the instant motion in the amount of $170.00. Dated: , LLP

By:

_______________________

Attorneys for Defendants

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