Judge: James L. Crandall, Case: 20-1130616, Date: 2022-09-08 Tentative Ruling

Motion to Compel Answers to Form Interrogatories

On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (See Code Civ. Proc., §§ 2030.300, subd. (a)(1)-(3).)

The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).)

The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Plaintiff moves to compel a further response to Form Interrogatories, Set One, number 15.1 from O’Keefe.

Procedural Requirements

Pursuant to California Rules of Court, rule 3.1345 subdivision (a), “[a]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement.” Pursuant to California Rules of Court, rule 3.1345(b)(2), a separate statement is not required “[w]hen a court has allowed the moving party to submit-in place of a separate statement-a concise outline of the discovery request and each response in dispute.”

Failure to include a separate statement that conforms to the California Rules of Court is grounds for the court to deny moving party’s discovery motion. (See Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893; Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145.)

A motion to compel further responses “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc., §; 2030.300, subd. (b)(1).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.)

Pursuant to Code of Civil Procedure section 2030.300, subdivision (c), a motion to compel further responses to interrogatories must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., §§ 1013, subd. (a); 2030.300, subd. (c).)

O’Keefe argues that Plaintiff’s motion should be denied for the following procedural reasons: (1) Plaintiff did not adequately meet and confer prior to filing the motion, (2) Plaintiff did not file a separate statement with his motion and (3) Plaintiff did not give notice of the motion within 45 days from the date of O’Keefe’s response. (Motion, 3-6.)

In reply, Plaintiff argues that the motion meets all procedural requirements for the following reasons: (1) the parties met and conferred by telephone and by email prior to the filing of this motion, (2) no separate statement should be required because the motion should be deemed to have included a “concise statement” of the issues pursuant to California Rules of Court, rule 3.1345(b), and (3) the court’s docket demonstrates that Plaintiff gave notice of the motion within 45 days, as the motion was filed on 4-22-22, under ROA No. 111.

Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893 states: “[a]s the procedural basis for it's ruling, the trial court stated that Plaintiffs' separate statement had failed to comply with former rule 335 (which is now numbered rule 3.1020) We conclude that because Plaintiffs did not comply with the requirements of former rule 335, the trial court was well within its discretion to deny the motion to compel discovery on that basis.”

The court declines to deny Plaintiff’s motion based on any procedural grounds raised in the opposition.

First, the court finds that Plaintiff has adequately met and conferred prior to filing the instant motion. The Jensen Declaration states at paragraph 3 that Jensen met and conferred with O’Keefe’s counsel prior to filing the instant motion. The Smith Declaration in support of opposition attests that the parties spoke on April 19, 2022, regarding the discovery at issue. (Smith Decl. ¶ 3.) This is sufficient for purposes of Code of Civil Procedure sections 2030.300(b)(1).

Second, the court does not deny the instant motion for failure to file a separate statement. Although a separate statement was required pursuant to California Rules of Court, rule 3.1345, denial of a motion for failure to file a separate statement is within the court’s discretion. There is only one interrogatory at issue in this motion, and the motion attaches a copy of O’Keefe’s responses as Exhibit 2 to the Jensen Declaration. This is sufficient.

Third, the court also does not deny the motion for inadequate notice. Pursuant to the court’s docket, Plaintiff’s motion was filed on 4-22-22 under ROA 111.

Although O’Keefe submits the declaration of Adriana Nordgreen in support of his argument that the motion was untimely noticed, the Nordgreen Declaration does not state when the motion was postmarked. Therefore, this is insufficient to demonstrate that Plaintiff did not give notice of the motion by 45 days from the date of O’Keefe’s responses.

The court will address the merits of the motion.

Merits

Interrogatory No. 15.1 asks Defendant to identify each denial of a material allegation and each special or affirmative defense in its pleading. In response, O’Keefe stated various objections and stated, subject to objections “Responding Party has not yet filed an answer to Propounding Party’s first amended complaint and as such, this interrogatory is premature. Discovery is ongoing and Responding Party reserves the right to amend or supplement this response, and any of its sub parts.” (Motion, Ex. 2, p. 13.)

Plaintiff argues that a further response to this interrogatory is required because O’Keefe’s objections are without merit. (Motion, 3-4.)

In opposition, O’Keefe argues that the motion should be denied because his response to this interrogatory was sufficient at the time it was served, as O’Keefe did not file an answer until 7-25-22. (Opposition, 6-7.) According to O’Keefe, the proper avenue to obtain a supplemental response to this interrogatory would be a supplemental interrogatory under Code of Civil Procedure section 2030.070, which Plaintiff has not served to date. (Id.)

On 1-3-22, Plaintiffs filed their First Amended Complaint under ROA No. 64.

On 7-25-22, Defendants filed their answer to the FAC under ROA No. 147.

Defendant O’Keefe’s responses to Plaintiff’s Form Interrogatories, Set One were served on 3-9-22.

Thus, as of the time Plaintiff filed the instant motion O’Keefe had not served his answer.

The court agrees with O’Keefe that form interrogatory 15.1 is not applicable if no answer has been filed. Plaintiff did not have a basis to bring his motion at the time it was filed because O’Keefe did not file his answer until 7-25-22.

Therefore, Plaintiff’s motion is DENIED.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., § 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., § 2023.010 (d).)

Additionally, the court shall impose sanctions against “any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.300(d).)

Plaintiff moves for sanctions of $900 against O’Keefe.

In opposition, O’Keefe moves for sanctions of $1,387.50 against Plaintiff.

Pursuant to the Declaration of Paul Rolf Jensen and Marsha Smith filed in support of and in opposition to this motion, the court finds that each party acted with substantial justification such that imposing sanctions would be unjust.

Therefore, Plaintiff’s Motion to Compel Further Responses to Form Interrogatories, Set One from Defendant Thomas J. O’Keefe, filed 4-22-22 under ROA No. 111 is DENIED.

Both parties’ requests for sanctions are DENIED.

Defendant to give notice.

Future hearing dates

11/10/22 – (4) Motions to Compel

5/19/23 – MSC

6/19/23 – Jury Trial