Judge: Curtis A. Kin, Case: 21STCV26907, Date: 2023-03-16 Tentative Ruling

Case Number: 21STCV26907    Hearing Date: March 16, 2023    Dept: 72

MOTION TO DEEM SERVICE OF

DISCOVERY INVALID AND/OR

MOTION FOR PROTECTIVE ORDER

Date:               3/16/23 (8:30 AM)

Case:               Ernest Melendrez v. Friends Outside in L.A. County et al. (21STCV26907)

TENTATIVE RULING:

Defendants Friends Outside in Los Angeles County and Mary Weaver’s Motion to Deem Service of Discovery Invalid and/or in the Alternative, Motion for Protective Order is GRANTED IN PART.

Defendants Friends Outside in Los Angeles County (“Friends”) and Mary Weaver move for an order deeming Request for Admission, Set One propounded on Friends and the Notice of Deposition of Mary Weaver invalid. The proof of service for these two documents was dated November 2, 2022 and indicates service by mail. (Hernandez Decl. ¶ 12 & Ex. H.) However, the postage label on the envelope containing the two documents indicates that the postmark was December 5, 2022. (Id. ¶ 13 & Ex. I.)

Service made by mail, “upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit.” (CCP § 1013a(3).) Here, the postage meter date for the subject documents was December 5, 2022, significantly more than one day from November 2, 2022, the date on the proof of service. Plaintiff does not attempt to rebut the presumption of CCP § 1013a. Contrary to plaintiff’s assertion, defendants were not required to file a motion to quash. (CCP § 2025.410(c) [stating that in addition to serving written objection, party “may also move for an order staying the taking of the deposition and quashing the deposition notice”].) Nothing in CPC § 2025.410(c) prevents the application of CCP § 1013a to find that service was invalid.

Further, nothing in CCP § 1013a requires plaintiff to “promptly” file a motion to deem service invalid. (Cf. CCP § 2031.060(a) [“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order”].) In any event, defendants filed this motion on December 23, 2022, shortly after they received the subject discovery on December 6, 2022 and after they met and conferred on December 15, 2022. (Hernandez Decl. ¶¶ 12, 14 & Exs. H, J, K.)

Accordingly, defendant’s request to deem service of Request for Admission, Set One propounded on Friends and the Notice of Deposition of Mary Weaver as invalid is GRANTED.  The Court accordingly does not reach defendants’ alternative request for a protective order to extend the time to respond to discovery which has not been validly served.

Defendants also move for an order for plaintiff to serve all pleadings electronically. CCP § 1010.6(b)(4) states: “A person represented by counsel shall, upon the request of any person who has appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting person with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.” Defendants, however, do not provide sufficient evidence of any such request having been made by them in accordance with section 1010.6(b)(4).  (See Mtn. at 3 [citing Hernandez Decl. Ex. A (plaintiff counsel stating “Hoping we can agree to email service”) and Ex. B (defense counsel replying “Confirmed”)].)  Further, defendants seek an order requiring plaintiff to serve by email by invoking the provision for a protective order under CCP § 2031.060(b), which states: “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  Given defendants’ failure to have demonstrated they made a clear request for service by email, the Court does not find good cause.  Plaintiff may thus still use mail as a valid form of service.  To the extent plaintiff refuses to serve documents through any valid means in accordance with the applicable rules, such instances are more appropriately addressed on a document-by-document basis, such as with the instant motion.

The motion is GRANTED IN PART. The service of Request for Admission, Set One propounded on defendant Friends Outside in Los Angeles County and the Notice of Deposition of Mary Weaver on November 2, 2022 is deemed invalid. The motion is otherwise DENIED.

Because the Court does not issue any protective order, defendants’ request for monetary sanctions under CCP § 2031.060(h) is DENIED. CCP § 1013a(3), under which defendants obtain the relief that they seek, does not provide for monetary sanctions.