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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
195 41st Street
P.O. Box 11120
Oakland, CA 94611
Phone: (510) 227-4406
Email: knowyourightsinsf@ gmail.com
Attorneys for Plaintiff Phillip Garcia
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual, } Case No. CGC-14-538560
Plaintiff, } PLAINTIFF PHILLIP GARCIA’S
) MEMORANDUM OF POINTS AND
vs. ) AUTHORITIES IN SUPPORT OF
) PLAINTIFF'S MOTION TO COMPEL
CARRIE WILSON, in her capacity as trustee of ) RESPONSES TO DISCOVERY AND
THE WILSON FAMILY TRUST, SHAUN ) REQUESTS FOR MONETARY
MARKHAM, an individual, ERIKA ) SANCTIONS
MARKHAM, an individual, and ANGELO )
WILSON, an individual, and DOES 1-20. )
} Date: November 17, 2015
) Time: 9:30 a.m.
)
)
)
Defendants. Dept: 501
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-1-I. INTRODUCTION.
On October 9, 2015, an OSC re: dismissal and sanctions was issue by this Court because
Plaintiff Garcia has been unable to serve Defendants Shawn Markham and Erika Markham. The
outstanding discovery requests seek information and documents on the location of Shawn Markham
and Erika Markham.!
HW. STATEMENT OF FACTS.
On September 11, 2015, Plaintiff served his Form Interrogatories, Set Two; and Special
Interrogatories, Set Two. Declaration of Plaintiff's Counsel Benny Martin in Support of Motion to
Compel (“Martin Decl.”) § 2, Ex. A. As a courtesy, also on September 11, 2015, Plaintiff's counsel
also served Plaintiffs Special Interrogatories, Set Two, and Form Interrogatories Set Two by email.
Martin Decl. { 3, Ex. B. Defendant the Trust failed to respond to Plaintiffs Special Interrogatories,
Set Two, and Form Interrogatories Set Two. Martin Decl. § 4.
This motion follows.
Il. RELEVANT LAW ON DISCOVERY.
The Discovery Act provides for discovery “regarding any matter, not privileged, that is
relevant to the subject matter involved in the pending action . . . if the matter either is itself
admissible in evidence or appears to be reasonably calculated to lead to the discovery of admissible
evidence.” CCP § 2017.010. The purpose of discovery is to take the “game” element out of a trial and
allow both parties to obtain the necessary evidence to evaluate and resolve the dispute. Greyhound
Corp. v. Superior Court (1961) 56 Cal. 2d 355, 376. California courts have been broad-minded in
determining whether discovery is reasonably calculated to lead to admissible evidence. The party
seeking discovery is entitled to substantial leeway. California's liberal approach to permissible
discovery generally has led the courts to resolve any doubt in favor of permitting discovery. Pacific
Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172-73. In doing so, the Courts have taken the
view if an error is made in ruling on a discovery motion, it is better that it be made in favor of
granting discovery of the nondiscoverable rather than denying discovery of information vital to
preparation or presentation of the party's case or to efficacious settlement of the dispute. 2 Hogan,
Modern Cal. Discovery (4th ed. 1988) § 11.2, p. 11; Greyhound Corp., 56 Cal.2d 355, 376.
* Counsel for Shawn Markham and Erika Markham have refused to accept service of process on their behalf.
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-2-IV. ARGUMENT.
a. When No Responses or Objections are Served, There is No Meet and Confer
Requirement.
“Within 30 days after service of interrogatories, the party to whom the interrogatories are
propounded shall serve the original of the response to them on the propounding party... CCP §
2030.260(a). If a party to whom interrogatories were directed fails to serve a timely response, the
propounding party may move for an order compelling responses and for a monetary sanction. CCP §
2030.290(b); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
CalApp. 4th 390, 404. The motion to compel may be heard even if tardy responses are served after
the motion is filed. Unless the propounding party takes the matter off calendar, the court may
determine whether the responses are legally sufficient and award sanctions for the failure to respond
on time. Sinaiko, 148 Cal.App.4th at 410-411.
According to the Rutter Group:
(3) [8:1141] No attempt to resolve informally required: The moving party is not
required to show a “reasonable and good faith attempt” to resolve the matter
informally with opposing counsel before filing the motion. [CCP § 2030.290;
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148
CA4th at 411, 55 CR3d at 766 (citing text); Leach v. Sup.Ct. (Markum), supra,
111 CA3d at 906, 169 CR at 44]
(a) [8:1142] Rationale: The failure to timely respond waives all objections to the
interrogatories ({8:1030); so there are no issues left to “resolve” with opposing
counsel. [See Leach v. Sup.Ct. (Markum) (1980) 111 Cal.App. 3d 902, 905-906].
The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Cal. Prac.
Guide Civ. Pro. Before Trial Ch. 8F-5, §8:1141.
Here, no responses were served to Plaintiffs Special Interrogatories, Set Two, or Form
Interrogatories Set Two. The information sought is relevant and urgently needed to perfect service of
the summons and complaint on Defendants Shawn Markham and Erika Markham. There is a pending
OCS re: dismissal or sanctions calendared for December 8, 2015, and we cannot afford any further
delay in obtaining responses to the interrogatories.
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-3-b. When No Responses or Objections are Served, There is Separate Statement
Requirement.
No separate statement is required to compel interrogatories when no response or objection
has been served. California Rule of Court, Rule 3.1345(b). 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. Leach v. Sup.Ct. (Markum)
(1980) 111 Cal.App. 3d 902, 905-906.
c. Plaintiff is Entitled to Monetary Sanctions.
The court “shall” impose monetary sanctions against the losing party and/or counsel on a
motion to compel compliance with written discovery unless it finds the losing party “acted with
substantial justification” or other circumstances make imposition of sanctions “unjust.” CCP §
2030.290(c). The losing party may be ordered to pay the reasonable expenses, including attorney
fees, incurred by the party prevailing on the motion. CCP § 2023 .030(a); 2030.290.
Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery
Act in favor of a party who files a motion to compel discovery. ..[if] the requested discovery was
provided to the moving party after the motion was filed.” Thus, a motion to compel is not moot even
when the opposing party provides untimely responses before the hearing. Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App. 4th 390, 408-409. The
reasoning behind the rules and case law is clear; a motion to compel is not moot because courts can
still impose sanctions against the party whose conduct necessitated the motion in the first place. This
is designed to reimburse the moving party for having to spend resources, including time and costs, in
unnecessary motions to compel. As such, even if the Trustee provides verifications and objection-free
substantive responses prior to the hearing, this motion is not moot, as the Court can and should still
award monetary sanctions to compensate her for the attorneys’ fees and costs incurred in having to
bring this motion. Thus, Plaintiff requests sanctions against the Trustee and her counsel at Murchison
& Cummings in the amount of $2,437.50, which consists of the amount of attorney's fees incurred in
bringing this necessary motion to compel. Martin Decl. § 5.
//
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-4-VI. CONCLUSION.
Based on the foregoing, Plaintiff requests that this motion be granted and that sanctions be
imposed in the amount of $2,437.50 jointly against Defendants’ counsel Murchison & Cummings,
and Defendant THE WILSON FAMILY TRUST.
Date: October 22, 2015 LAW OFFICES OF BENNY MARTIN
By:
Benny Martin,
Counsel for Plaintiff Phillip Garcia
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-5-
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LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) 195 41st Street P.O. Box 11120 Oakland, CA 94611 Phone: (510) 227-4406 Email: knowyourightsinsf@ gmail.com Attorneys for Plaintiff Phillip Garcia SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, } Case No. CGC-14-538560 Plaintiff, } PLAINTIFF PHILLIP GARCIA’S ) MEMORANDUM OF POINTS AND vs. ) AUTHORITIES IN SUPPORT OF ) PLAINTIFF'S MOTION TO COMPEL CARRIE WILSON, in her capacity as trustee of ) RESPONSES TO DISCOVERY AND THE WILSON FAMILY TRUST, SHAUN ) REQUESTS FOR MONETARY MARKHAM, an individual, ERIKA ) SANCTIONS MARKHAM, an individual, and ANGELO ) WILSON, an individual, and DOES 1-20. ) } Date: November 17, 2015 ) Time: 9:30 a.m. ) ) ) Defendants. Dept: 501 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -1-I. INTRODUCTION. On October 9, 2015, an OSC re: dismissal and sanctions was issue by this Court because Plaintiff Garcia has been unable to serve Defendants Shawn Markham and Erika Markham. The outstanding discovery requests seek information and documents on the location of Shawn Markham and Erika Markham.! HW. STATEMENT OF FACTS. On September 11, 2015, Plaintiff served his Form Interrogatories, Set Two; and Special Interrogatories, Set Two. Declaration of Plaintiff's Counsel Benny Martin in Support of Motion to Compel (“Martin Decl.”) § 2, Ex. A. As a courtesy, also on September 11, 2015, Plaintiff's counsel also served Plaintiffs Special Interrogatories, Set Two, and Form Interrogatories Set Two by email. Martin Decl. { 3, Ex. B. Defendant the Trust failed to respond to Plaintiffs Special Interrogatories, Set Two, and Form Interrogatories Set Two. Martin Decl. § 4. This motion follows. Il. RELEVANT LAW ON DISCOVERY. The Discovery Act provides for discovery “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears to be reasonably calculated to lead to the discovery of admissible evidence.” CCP § 2017.010. The purpose of discovery is to take the “game” element out of a trial and allow both parties to obtain the necessary evidence to evaluate and resolve the dispute. Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355, 376. California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. The party seeking discovery is entitled to substantial leeway. California's liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172-73. In doing so, the Courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute. 2 Hogan, Modern Cal. Discovery (4th ed. 1988) § 11.2, p. 11; Greyhound Corp., 56 Cal.2d 355, 376. * Counsel for Shawn Markham and Erika Markham have refused to accept service of process on their behalf. PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -2-IV. ARGUMENT. a. When No Responses or Objections are Served, There is No Meet and Confer Requirement. “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party... CCP § 2030.260(a). If a party to whom interrogatories were directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP § 2030.290(b); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 CalApp. 4th 390, 404. The motion to compel may be heard even if tardy responses are served after the motion is filed. Unless the propounding party takes the matter off calendar, the court may determine whether the responses are legally sufficient and award sanctions for the failure to respond on time. Sinaiko, 148 Cal.App.4th at 410-411. According to the Rutter Group: (3) [8:1141] No attempt to resolve informally required: The moving party is not required to show a “reasonable and good faith attempt” to resolve the matter informally with opposing counsel before filing the motion. [CCP § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 CA4th at 411, 55 CR3d at 766 (citing text); Leach v. Sup.Ct. (Markum), supra, 111 CA3d at 906, 169 CR at 44] (a) [8:1142] Rationale: The failure to timely respond waives all objections to the interrogatories ({8:1030); so there are no issues left to “resolve” with opposing counsel. [See Leach v. Sup.Ct. (Markum) (1980) 111 Cal.App. 3d 902, 905-906]. The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-5, §8:1141. Here, no responses were served to Plaintiffs Special Interrogatories, Set Two, or Form Interrogatories Set Two. The information sought is relevant and urgently needed to perfect service of the summons and complaint on Defendants Shawn Markham and Erika Markham. There is a pending OCS re: dismissal or sanctions calendared for December 8, 2015, and we cannot afford any further delay in obtaining responses to the interrogatories. PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -3-b. When No Responses or Objections are Served, There is Separate Statement Requirement. No separate statement is required to compel interrogatories when no response or objection has been served. California Rule of Court, Rule 3.1345(b). 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. Leach v. Sup.Ct. (Markum) (1980) 111 Cal.App. 3d 902, 905-906. c. Plaintiff is Entitled to Monetary Sanctions. The court “shall” impose monetary sanctions against the losing party and/or counsel on a motion to compel compliance with written discovery unless it finds the losing party “acted with substantial justification” or other circumstances make imposition of sanctions “unjust.” CCP § 2030.290(c). The losing party may be ordered to pay the reasonable expenses, including attorney fees, incurred by the party prevailing on the motion. CCP § 2023 .030(a); 2030.290. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery. ..[if] the requested discovery was provided to the moving party after the motion was filed.” Thus, a motion to compel is not moot even when the opposing party provides untimely responses before the hearing. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App. 4th 390, 408-409. The reasoning behind the rules and case law is clear; a motion to compel is not moot because courts can still impose sanctions against the party whose conduct necessitated the motion in the first place. This is designed to reimburse the moving party for having to spend resources, including time and costs, in unnecessary motions to compel. As such, even if the Trustee provides verifications and objection-free substantive responses prior to the hearing, this motion is not moot, as the Court can and should still award monetary sanctions to compensate her for the attorneys’ fees and costs incurred in having to bring this motion. Thus, Plaintiff requests sanctions against the Trustee and her counsel at Murchison & Cummings in the amount of $2,437.50, which consists of the amount of attorney's fees incurred in bringing this necessary motion to compel. Martin Decl. § 5. // PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -4-VI. CONCLUSION. Based on the foregoing, Plaintiff requests that this motion be granted and that sanctions be imposed in the amount of $2,437.50 jointly against Defendants’ counsel Murchison & Cummings, and Defendant THE WILSON FAMILY TRUST. Date: October 22, 2015 LAW OFFICES OF BENNY MARTIN By: Benny Martin, Counsel for Plaintiff Phillip Garcia PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -5-