Plaintiffs serve discovery requests for special interrogatories and production of documents on your clients, the Defendants. At the time, you had just undergone a planned surgery and thus were in no shape to be able to timely respond. As a result, you request and are granted several extensions to serve responses. Eventually, you draft your responses but inadvertently, they are neither served nor verified. As a result, 6 months after the original discovery filing, you are timely served with a Notice of Motion and Motion to Compel Responses to Special Interrogatories and Request for Production of Documents (“Motion”). How should you respond to this Motion?
Review and Discussion
An inexperienced attorney would instinctively oppose. The immediate thought is – “Defend yourself!” And why wouldn’t you? You had surgery and the court is equitable—right?
Wrong. Rather, by responding, you may have just made yourself susceptible to sanctions.
Pursuant to California Code of Civil Procedure §§ 2030.290(c) and 2031.300(c), the court would impose a monetary sanction against defense counsel for opposing the Motion, as there was no substantial justification for requesting an order denying relief. Furthermore, in the eyes of the court, the circumstances as detailed above do not make imposition of sanctions otherwise unjust. Your surgery was accounted for by Plaintiffs’ counsel. Rather, your failure to timely serve and verify your responses and production are a result of your own carelessness and neglect.
So what should you do? File a non-opposition. The courts deny sanctions when a motion is not opposed. Although California Rules of Court 3.1348(a) purports to authorize sanctions if a motion is unopposed, the Courts decline to do so, as the specific statutes governing this discovery (Code Civ. Proc., §§ 2030.290(c), 2031.300(c)) authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the California Rules of Court must conform to the conditions of one or more of the statutes authorizing sanctions. (Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355.)
Courts deny sanctions when a motion to compel is not opposed regarding request for interrogatories, special interrogatories, request for production of documents, answers at a deposition, request for physical examination of personal injury plaintiff, and request for physical or mental examinations. (Code Civ. Proc., §§ 2025.480(f), 2030.290(c), 2031.300(c), 232.240(c), 2032.620(b).) However, note that when a party files a Motion for Order that Matters be Deemed Admitted, the court must impose a mandatory sanction, whether or not the motion has been opposed. (See Code Civ. Proc., § 2033.280(c).)