Judge: Deborah C. Servino, Case: 30-2021-01195708, Date: 2023-07-28 Tentative Ruling
Motion to compel nonparty deposition
Defendant/Cross-Complaint Michael Bakkers motion to compel nonparty Nigel Burns, Esq. to appear for a deposition, answer questions he refused to answer at his deposition, and to produce documents, is denied.
“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, rule 3.1346.)
Michael Bakkers did not show that the notice or moving papers were properly served on nonparty Nigel Burns. (See Proof of Electronic Service and Overnight Mail [ROA 305].) Accordingly, the unopposed motion is denied.
Motion to Compel Further Responses
Michael Bakkers seeks an order compelling further responses to form interrogatory numbers 17.1 and 50.1-50.6 and request for production numbers 1-88 from Plaintiff/Cross-Defendant John A. Belcher.
Michael Bakkers contends Belcher did not serve timely responses to the form interrogatories and requests for production. Michael Bakkers contends the discovery at issue were served by overnight delivery on March 24, 2023. The only supporting evidence is counsel’s declaration and the proof of service, which was signed by Hazel Dakis. Belcher contends the discovery requests were not received by FedEx until March 27, 2023, based on the tracking information available for the mailing. (Trimmer Decl., at ¶¶ 5-7 and 10, Exhs. 1 and 2.)
Michael Bakkers correctly contends that service is complete at the time of deposit and it is irrelevant when the courier actually receives the package. (Code Civ. Proc., § 1013, subd. (c); see, Barefield v. Washington Mutual Bank (2006) 136 Cal.App.4th 299, 302.) However, the proof of service does not comply with Code of Civil Procedure section 1013, subdivision (c). The proof of service states:
I am readily familiar with the firm’s practice of collection and processing correspondence for overnight courier. On the same day that correspondence is placed for collection and delivery, it is deposited in the ordinary course of business in a sealed envelope to the addressee(s), fully prepaid, and deposited at an office or a regularly utilized drop box of the overnight delivery carrier.
(Basakis Decl., Exh. A.)
Although a proof of service by mail “may be based on the affiant’s averment of familiarity with the business’s practice for collecting and processing mail with the United States Postal Service, and an averment that the affiant followed that practice. There is no statutory analogue for overnight delivery services.” (Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1250.)
Like the proof of service in Humane Society of U.S. v. Superior Court, the proofs of service of the discovery requests at issue are defective. (Id. at p. 1248.) They do not state that the form interrogatories and requests for production were deposited with the overnight courier. Instead, they are based on the firm’s practice of collection, which is not a proper proof of service for service by overnight delivery. Michael Bakkers offered no evidence to show the discovery requests were deposited on March 24, 2023. Accordingly, he has not shown the form interrogatories were served on that date or that Belcher’s responses were untimely.
Form Interrogatories
Michael Bakkers only takes issue with the actual responses of interrogatory number 17.1, subsection (d). However, he did not show that he met and conferred regarding Belcher’s response to interrogatory number 17.1, subsection (d) being evasive and incomplete. (Code Civ. Proc., § 2030.300, subd. (b); Cal. Rules of Court, rule 3.1345.) In addition, Belcher’s responses appear Code-compliant. Accordingly, the motion to compel further responses to form interrogatories is denied.
Requests for Production
When moving to compel further responses to requests for production of documents, the moving party must set forth specific facts showing good cause justifying the discovery sought by the inspection demand pursuant to Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.)
Michael Bakkers did not show good cause for request numbers 2 and 4. These two requests are impermissibly overbroad as described and based on the definition of the terms “relate to,” “related to,” and “relating to.” (Basakis Decl., Exh. F, at p. 3:16-19.) Accordingly, the motion is denied as to these two requests.
Michael Bakkers has shown good cause for request numbers 1, 3, and 5-88. (Basakis Decl., at ¶ 12.) Belcher’s responses to request numbers 1, 3, 5-6, 9-10, 13-14, 17-18, 21-22, 25-26, 29-30, 33-34, 37-38, 41-42, 45-46, 49-50, 53-54, 57-58, 61-66, 69-70, 73-74, 77-78, 81-82, and 85-86 did not comply with Code of Civil Procedure section 2031.220. In response to the remaining requests, numbers 7-8, 11-12, 15-16, 19-20, 23-24, 27-28, 31-32, 35-36, 39-40, 43-44, 47-48, 51-52, 55-56, 59-60, 67-68, 71-72, 75-76, 79-80, 83-84, and 87-88, Belcher’s responses did not comply with Code of Civil Procedure section 2031.230. He did not specify why he was unable to comply. Accordingly, the motion is granted as to these requests. Belcher shall serve verified, further Code-compliant responses to request numbers 1, 3, and 5-88 within 20 days of the notice of ruling.
There is no dispute that Belcher produced documents in response to these requests. (Trimmer Decl., at ¶ 12; see generally, Reply [ROA 417].) Accordingly, the motion to compel compliance is denied.
The court declines to award any sanctions
Michael Bakkers shall give notice of rulings to all parties and non-party Nigel Burns, Esq.