Judge: Deirdre Hill, Case: 22TRCV00147, Date: 2023-03-23 Tentative Ruling

Case Number: 22TRCV00147    Hearing Date: March 23, 2023    Dept: M

Hearing Date:                         March 23, 2023

Moving Parties:                      Plaintiffs Martin Canter and Roselle Maria Clark

Responding Party:                  Defendants Ketan Patel and Jayshiree Patel

Motion to Compel Defendants to Properly Response to All Said Discovery

            The court considered the moving, opposition, and plaintiffs’ “opposition to opposition” papers.

RULING

            The motion is DENIED in its entirety.  Plaintiffs are ordered to pay additional filing fees in the amount of $300.

BACKGROUND

On March 1, 2022, plaintiffs Martin B. Canter, aka Matador Professional Services and Roselle Maria Clark, aka Rnqueen Nursing Consultants, Inc. (self-represented) filed a complaint against Ketan Patel, Jayshree Patel, aka Purview Hospice & Palliative Care, and aka Total Home Health, Inc. for (1) collection of monies, (2) deceptive business practices, and (3) fraud.

            On May 19, 2022, the court overruled defendants Ketan Patel and Jayshree Patel’s demurrer to the complaint.

            On June 27, 2022, defendants Ketan Patel and Jayshree Patel filed an answer.

            On July 19, 2022, the court sustained with leave to amend plaintiffs’ demurrer as to each of defendants’ affirmative defenses.

            On August 15, 2022, defendants filed a FAA.

            On August 6, 2022, the court overruled plaintiffs’ demurrer to the FAA.

            On January 12, 2023, the court denied plaintiffs’ motion for summary judgment.

            On January 31, 2023, the court granted defendants’ motion for judgment on the pleadings with 20 days leave to amend as to the 1^st and 2^nd causes of action and granted without leave to amend as to the 3^rd cause of action in the complaint.

            On February 17, 2023, plaintiffs filed a FAC.

LEGAL AUTHORITY

Interrogatories

            If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.  CCP §2030.290(b).  The statute contains no time limit for a motion to compel where no responses have been served.  All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906. 

            Request for Production of Documents

            Where there has been no timely response to a CCP §2031.010 demand, the demanding party must seek an order compelling a response.  CCP §2031.300.  Failure to timely respond waives all objections, including privilege and work product.  So, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded.  There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.  Where the motion seeks only a response to the inspection demand, no showing of "good cause" is required.  Weil & Brown, Civil Procedure Before Trial, 8:1487. 

            Request for Admissions

Pursuant to CCP §2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).  “Failure to timely respond to RFA does not result in automatic admissions.  Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under §2023.010 et seq.”  Civ. Proc. Before Trial, 8:1370, citing CCP § 2033.280(b).  The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  CCP §2033.280(c).

Motions to compel further responses

This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP §1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand.  CCP §§2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745.  The 45-day time limit is mandatory and jurisdictional.  Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410.  The parties, however, can also agree in writing on a specific later date by which to file the motion to compel.  CCP §2031.310(c).

Meet-and-Confer Requirement:  The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”).  CCP §§2016.040, 2031.310(b)(2).

Separate Statement:  Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement.  This includes a motion to compel further responses to demand for inspection of documents or tangible things.  CRC Rule 3.1020(a)(3). 

Interrogatories

CCP §2030.300 states:  “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:   (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general.  (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) 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 propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .”

Request for Production of Documents

On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply:  (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general.  CCP §2031.310(a).  A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.  CCP §2031.220.  “A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand.  This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.  This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  CCP §2031.230.

A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”  CCP § 2031.310(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 documents 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).  The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection.  But it is not essential in every case.”  Weil & Brown, Civil Procedure Before Trial, 8:1495.6 (citations omitted).  “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection.  The declarations must contain ‘specific facts’ rather than mere conclusions.”  Id. at 8:1495.7 (citation omitted).  “The declarations may be on information and belief, if necessary.  However, in such cases, the ‘specific facts’ supporting such information and belief (the sources of the information) must also be alleged.”  Id. at 8:1495.8 (citation omitted).  “Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and ‘specific facts’ constituting ‘good cause’ for inspection.”  Id. at 8:1495.9.

DISCUSSION

            Plaintiffs (self-represented) request that the court compel defendants to provide responses to interrogatories, production of documents, and request for admissions. 

The court notes that the motion is procedurally improper as it combines several motions into one.  The court thus orders plaintiffs to pay additional filing fees.

The notice of motion and memorandum of points and authorities do not specify the written discovery at issue.  As defendants contend, the motion is vague and ambiguous, and plaintiffs cite improperly to federal law.  The court, however, was able to ascertain the written discovery at issue based on the exhibits.  The court notes that plaintiffs’ declaration does not comply with CCP §2015.5 because it does not state the date and place of execution if it was executed in California. 

The court rules as follows:

1.     Special Interrogatories (Set Three) – plaintiffs served Special Interrogatories (Set Three) on May 30, 2022.  Defendants served responses (objections only) on June 30, 2022.  The court finds that the motion to compel under CCP §2030.290(b) is improper because defendants served responses.  Even if the court were to construe the motion as a motion to compel further responses under CCP §2030.300, the motion is untimely, there is no separate statement, and plaintiffs have not shown why the objections are without merit.  The motion is thus DENIED as to this request.

2.     Form Interrogatories (Set One) – Defendants served responses on June 30, 2022.  The court finds that the motion to compel under CCP §2030.290(b) is improper because defendants served responses.  Even if the court were to construe the motion as a motion to compel further responses under CCP §2030.300, the motion is untimely and there is no separate statement.  The motion is thus DENIED.

3.     Special Interrogatories (Set One) -- Defendants served responses on June 30, 2022.  The court finds that the motion to compel under CCP §2030.290(b) is improper because defendants served responses.  Even if the court were to construe the motion as a motion to compel further responses under CCP §2030.300, the motion is untimely, there is no separate statement, and plaintiffs have not shown why the objections are without merit.  The motion is thus DENIED.

4.     First Set of Production of Documents – The document attached to the motion is only one page.  The notation at the bottom is marked 10A.  The court declines to address as plaintiffs have not shown that they served a complete document.

5.     Request for Production of Documents (Set Two) – Plaintiffs attach one page of defendants’ response.  It appears that defendants responded.  Plaintiffs have not shown that their motion is timely as required under CCP §2030.300 and plaintiffs have failed to file a separate statement.  The motion is thus DENIED as to this request.

6.     Request for Production of Documents (Set One) – The court notes that the requests Nos. 2-10 state “Request for Admission” but are drafted seeking specific categories of documents.  Defendants served responses (objections only) on June 29, 2022.  Plaintiffs have not shown that their motion is timely as required under CCP §2030.300, plaintiffs have failed to file a separate statement, and plaintiffs have failed to show why defendants’ objections are without merit.  The motion is thus DENIED as to this request.

7.     Request for Admissions – Plaintiffs have not shown proof of service of the request for admissions.  Thus, the motion is DENIED.

Based on the above, the motion is DENIED IN ITS ENTIRETY.

Defendants are ordered to give notice of ruling.