Judge: Douglas W. Stern, Case: 21STCV26925, Date: 2022-09-22 Tentative Ruling

Case Number: 21STCV26925    Hearing Date: September 22, 2022    Dept: 52

Defendant Cristobal Rodriguez aka Cristobal Doe’s Motion for Orders Compelling Answers to First Set of Form Interrogatories – General, Form Interrogatories – Employment Law, Requests for Admission, Requests for Production, and Special Interrogatories

Defendant Cristobal Rodriguez moves for an order compelling responses to form interrogatories – general, form interrogatories – employment law, special interrogatories, requests for production, and requests for admission.

When a party fails to timely respond to interrogatories or demands for inspection, the requesting party may move for an order compelling responses.  (CCP §§ 2030.290(b) [interrogatories]; 2031.300(b) [demands for inspection].)  Failure to timely respond waives any objections.  (CCP §§ 2030.290(a); 2031.300(a).)

There is no such motion for requests for admission.  Instead, the Discovery Act provides for a stronger remedy: “The requesting 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.”  (CCP § 2033.280(b).)  Rodriguez, however, did not move for such an order. 

Rodriguez served his discovery requests by mail on June 15, 2022.  (Fleischman Decl., ¶ 2, Exs. A-E.)  Plaintiff concedes not timely responding but asserts he served untimely verified responses on August 2, 2022, before Rodriguez filed this motion.  (Schelly Decl., ¶ 4, Ex. A.) 

Rodriguez’s counsel, however, states he never received those responses.  (Supp. Fleischman Decl., ¶ 6.)  He submitted a notice from the United States Postal Service stating a package sent by plaintiff’s counsel could not be delivered on August 4, 2022, because it required a payment of $4.75 for postage due.  (Supp. Fleischman Decl., ¶ 3, Ex. C.)

The court finds neither an order compelling responses nor an order of sanctions against either party is appropriate.  Both parties are at fault.  Plaintiff’s counsel has repeatedly failed at the straightforward task of mailing documents.  He served his discovery responses by mail without paying for sufficient postage—by the large margin of $4.75.  (Supp. Fleischman Decl., ¶ 3, Ex. C.)  He also sent a letter dated August 17 that was postmarked on August 24.  (Supp. Fleischman Decl., ¶ 5, Ex. F.)

Rodriguez’s counsel, however, refuses to accept email service.  He states, “Mr. Schelly requested I accept service by email but I declined because I was not required to agree to that method of communication in this litigation.”  (Fleischman Decl., ¶ 16.) 

Actually, Rodriguez’s counsel is required to accept service by email.  “A party represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.”  (CCP § 1010.6(e)(1).)  Defendant Cristobal Rodriguez is represented by counsel Dan E. Fleischman, Esq. and has appeared in this action.  He therefore must accept electronic service.

Attorneys are also required to serve documents by email if requested.  “A party represented by counsel shall, upon the request of any party who has appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.”  (CCP § 1010.6(e)(2).)

Most of defendant’s reply, including 50 pages of exhibits, concerns disputes about the mail.  Not only is defense counsel required to accept electronic service under Code of Civil Procedure section 1010.6, but also it would solve all the problems he complains about.  Email is free, instantaneous, and automatically includes metadata with detailed tracking information.

Disposition

Defendant Cristobal Rodriguez’s motion to compel discovery responses is denied. 

Defense counsel Dan E. Fleischman is ordered to comply with Code of Civil Procedure section 1010.6.  He must provide plaintiff with his electronic service address and accept electronic service of any documents that may be served by mail.  If requested by plaintiff, he must also electronically serve any documents that may be served by mail.