Judge: Blaine K. Bowman, Case: 37-2021-00047371-CU-OE-NC, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 14, 2023

12/15/2023  10:00:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2021-00047371-CU-OE-NC OLIVERA VS MENDOZA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 11/16/2023

The Motion to Compel Verifications Under Oath to Written Discovery Responses brought by plaintiffs Juan and Rene Olivares (collectively, Plaintiffs) is GRANTED.

The Request for Monetary Sanctions brought by Plaintiffs is GRANTED in the amount of $4,380.00.

Defendant Jose Mendoza (Mr. Mendoza) admits receiving discovery requests that were propounded by Plaintiff. The evidence establishes that Mr. Mendoza did not provide proper verifications to his discovery responses within the statutory time frame. Unverified responses are the same as no response at all.

Effect of unverified response: Where a verification is required [internal citation], an unverified response is ineffective; it is the equivalent of no response at all. (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 8:1113, citing Appleton v. Sup.Ct. (Cook) (1988) 206 Cal.App.3d 632, 636.

It appears, to her credit, that it was Mr. Mendoza's counsel that first discovered the error in verifications.

(ROA 85, ¶¶ 3 and 4.) That discovery was communicated on October 23, 2023. (ROA 85, ¶¶ 3 and 4.) This indicates that Mr. Mendoza's counsel knew of the issue as of October 23, 2023. However, according to the papers filed, Mr. Mendoza's counsel had not corrected the issue by December 4, 2023 (the date the opposition brief was filed). Moreover, Mr. Mendoza's counsel only predicted being able to correct the issue by December 15, 2023 – which is the date that the hearing on this motion is scheduled.

The Court is unimpressed by this representation. Discovery is supposed to be self-executing, and meet and confer efforts exist to enable parties to resolve issues of this nature out-of-court.

While Mr. Mendoza's counsel is to be commended for catching her own error and attempting to address it, the amount of time that it seemingly took to address the issue reaches the point of being deficient. The error was discovered October 23, 2023, and Plaintiffs did not file the instant motion to compel until November 16, 2023 – a time span of a little over three weeks. Discovery responses themselves are only supposed to take 30 days to provide, such that a delay of over three weeks just to obtain corrected verifications – without any excuse as to why such a delay occurred – is unwarranted and unreasonable; making the filing of the motion to compel justified.

Beyond that initial time frame of over three weeks, Mr. Mendoza had an additional window of time to correct the issue prior to the deadline for opposing the motion, which was December 4, 2023. Counting in court days (i.e. excluding weekends and holidays, including the Thanksgiving Holiday) this left about two weeks of time to still correct the issue. And yet, still, Mr. Mendoza's opposition brief does not Calendar No.: Event ID:  TENTATIVE RULINGS

3051381 CASE NUMBER: CASE TITLE:  OLIVERA VS MENDOZA [IMAGED]  37-2021-00047371-CU-OE-NC represent that the corrected verifications have been provided – instead his counsel represent that the are 'expected' to be provided by December 15, 2023 – another 9 business days later than the opposition brief.

While there is some mention of Mr. Mendoza being out of town to attend a funeral, which the Court would be sympathetic to were that the sole cause of a short delay of serving verified responses, it appears that delays related to said funeral happened in the September and early-to-mid October time frame – possibly as late as October 27, 2023. Even that lacks some persuasive value as funerals do not typically take the span of time that seems to be referenced in the declaration (September 6, 2023 through October 27, 2023) – though the Court indulges the possibility that some of the earlier part of that time frame may have been for caring for a dying relative or resolving affairs of a decedent.

Nonetheless, in the modern world of technology with email, text messaging, and even old-school facsimile, as well as with modern electronic signature options, the Court simply does not find it credible that it should take from October 23, 2023 (the time the error was first discovered) to December 15, 2023 (the time this matter is set for hearing) to correct some deficient verification signatures. Furthermore, while the Court might be inclined to reduce the applicable amount of monetary sanctions if an opposition had been filed that said that the error had been corrected by the filing of the opposition brief (such that any estimated expenses related to reviewing the opposition, drafting a reply, or attending a court hearing would be minimal), the fact that the opposition brief did not correct the issue, but, rather, was only able to say that the error was 'expected' to be corrected by the date of the hearing is consistent with a certain amount of unreasonable delay that does not warrant a reduction in the request for monetary sanctions associated with bringing the motion – since it appears that the motion was, indeed, the catalyst for having this defect actually corrected.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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