Judge Audra Mori, Case 21STCV38693 2023-01-12 Tentative Ruling

Plaintiff Jorge Martinez Carrillo (“Plaintiff”) filed this action against defendants Uber Technologies, Inc. and Adrian Vidal Counts (“Counts”) for damages arising from a motor vehicle accident.

Counts filed the instant motions to compel further responses to special interrogatories, set one, and to requests for production of documents (“RPDs”), set one, against Plaintiff on August 16, 2022. Counts separately filed a separate statement pertaining to each motion on November 4, 2022, together with a notice of errata providing that the separate statements were inadvertently not filed with the moving papers. On November 15, 2022, the parties participated in an Informal Discovery Conference concerning the subject discovery disputes.

After conferring with the parties, the motions to compel further responses were set for hearing on January 12, 2023, with the parties being instructed to submit a joint statement outlining any remaining issues and their positions before 14 days before the hearing. The parties filed a joint statement concerning the discovery on December 29, 2022.

Counts asserts that he served his special interrogatories, set one, and RPDs, set one, by email on Plaintiff on March 24, 2022. Plaintiff served responses to the special interrogatories and RPDs on May 25, 2022. Counts contends that multiple responses were deficient and incomplete.

Pursuant to the joint statement, Plaintiff argues the motions are untimely because Counts failed to file them within 45 days of receiving Plaintiff’s responses on May 25, 2022. Plaintiff argues that Counts did not obtain an extension to file the motions beyond the 45-day deadline. While Plaintiff indicates that Plaintiff will voluntarily be providing certain further responses to the discovery at issue with the agreed upon limitations, Plaintiff argues that the Court has no authority to grant the untimely motions.

Counts, in response, contends only that the motions were timely filed under CCP § 1005(b).

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the [interrogatories or demand].” (CCP §§ 2030.300(c), 2031.310(c).)

The 45-day limitation to move to compel further responses is jurisdictional, and courts are without authority to rule on untimely motions to compel except to deny them. (See, e.g., Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; and Sperber v. Robinson (1994) 26 Cal.App.4th 736, 746 [later motion did not relate back to earlier motion taken off calendar].) The clock begins to run once “verified responses” or “supplemental verified responses” are served.” (Golf & Tennis Pro Shop, Inc. v. Superior Court of Orange County (2022) 2022 WL 9833211 at *3.)

Here, Plaintiff served verified responses to the special interrogatories and RPDs on Counts by email on May 25, 2022. (Mot. Special Interrogatories Exh. B; Mot. RPDs Exh. B.) Forty-five days after this date, with two additional court days to account for electronic service, would have been July 13, 2022. Counts, however, did not file the instant motions until August 16, 2022, and did not file the separate statements pertaining to the motions until November 4, 2022. While Counts asserts that he complied with the notice requirements of CCP § 1005(b), which provides that all moving and supporting papers shall be served and filed at least 16 court days before the hearing, Counts fails to establish that he complied with the statutory deadline for moving to compel further responses under CCP §§ 2030.300(c) and 2031.310(c). There is no evidence showing the parties otherwise agreed, in writing, to extend the time for Counts to file motions to compel further responses to the special interrogatories and RPDs that would make their filing on August 16, 2022, timely.[1]

Therefore, by failing to timely move to compel further responses to the special interrogatories and RPDs, Counts waived any right to compel further responses to the discovery. (Sexton, 58 Cal.App.4th at 1409 [“the 45–day time limitation was mandatory and jurisdictional [Citation] and … ‘the Legislature has explicitly stated that unless a party moves to compel further response within 45 days of the unsatisfactory response, he waives any right to compel a further response.’ ”]; see also Prof'l Career Colleges, Magna Inst. v. Superior Court (1989) 207 Cal.App.3d 490, 493-94 [The Civil Discovery Act's “pattern of restrictions, sanctions, and the attempt to force cooperation clearly evinces the legislative intent that discovery proceed not only smoothly, but swiftly as well.”].)

Based on the foregoing, Counts’ motions to compel further responses to special interrogatories, set one, and RPDs, set one, are denied.

Plaintiff has not requested any sanctions, and thus, none are awarded at this time.

Hon. Audra Mori

Judge of the Superior Court

[1] Counts’ evidence shows that after receiving the responses on May 25, 2022, Counts’ counsel sent Plaintiff a meet and confer letter regarding the discovery requesting further supplemental responses to the discovery requests by June 14, 2022. (Mots. Exh. D.) Plaintiff’s counsel then requested a two-week extension to respond to the letter, with Counts’ counsel replying that Counts was “amenable to the 2 week extension for additional time to provide us with supplemental discovery responses with the 2 week extension for motions to compel if that becomes necessary.” (Id. Exh. E.) It is unclear if this email was intended to provide Counts with a two-week extension to move to compel further responses. Nonetheless, even if it had been, a two-week extension to the July 13, 2022 deadline would have meant that Defendant was required to file its motions by July 27, 2022.