Judge Jill Feeney, Case Number: 20STCV32746, Date: 2023-10-04 Tentative Ruling

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc. § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc. § 2031.300, subd. (a).) Thus, 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.

Unverified discovery responses are tantamount to no response at all, and are subject to a motion to compel responses (rather than a motion to compel further responses). (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 635-36.) However, objections to interrogatories and demands for production are not required to be verified because “objections are legal conclusions interposed by counsel, not factual assertions by a party.” (Blue Ridge Insurance Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345.)

A party waives its objections to a discovery request when it does not serve a timely response to the request. (Code Civ. Proc., section 2031.200(a)) Even if objections do not need to be verified, objections will be waived if the responding party “fails to file any response within the statutory time period.” (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 658.)

Failure to timely move to compel further responses within the specified period constitutes a waiver of any right to compel a further response. The 45–day rule to bring a motion to compel is mandatory and jurisdictional “in the sense that it renders court without authority to rule on motions to compel other than to deny them.” (Sexton v. Superior Ct. (1997) 58 Cal.App.4th 1403, 1410.)

Here, Plaintiff’s Counsel testifies that he served Defendant with Request for Production, Set Two on September 6, 2022. (Friedman Decl., ¶2.) On October 12, 2022, Plaintiff’s counsel emailed a meet and confer letter to Defendant’s counsel. (Id., ¶3.) On May 1, 2023, the parties participated in IDC and were unable to resolve their discovery disputes. As of the date of filing this motion, Defendant has not served responses to Plaintiff’s RPDs. (Id., ¶6.)

Defendant argues that Plaintiff’s motion is improper, untimely, and constitutes an abuse of the discovery process. Defendant alleges that on March 1, 2022, Plaintiff propounded its first set of RPDs on Defendant. (Park Decl., ¶2.) On April 28, 2022, Defendant provided responses without objections. (Id., ¶3.) On September 6, 2022, Plaintiff propounded another set of RPDs that contained requests identical to requests included in the first set. (Id., ¶4, Exh. C.)

On October 21, 2022, Defendant served its response to the second set of RPDs objecting to the request on the grounds that the request was duplicative of the first set of RPDs. (Id., ¶5.) Defendant argues that it already served responses to the first set of RPDs and the deadline for Plaintiff to file a motion to compel further responses has passed. Defendant alleges that in serving an identical set of RPDs, Plaintiff is attempting to circumvent the deadline to file a motion to compel further responses. Defendant cites Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 493. In Professional Career Colleges, the court there ruled that a party propounding discovery who failed to bring a motion to compel further after the statutory deadline may not reset the clock by propounding the same discovery again. (Id.)

Plaintiff’s second set of RPDs numbers 6-8 are identical to questions 2-4 of the first set of RPDs. Although numbers 9-10 are written differently, both seek information about Defendant’s causes of action raised in its Cross-Complaint, meaning they are duplicative of RPD number 5 of Set One, which seeks documents supporting each of Defendant’s causes of action in its Cross-Complaint. RPD number 9 seeks documents supporting Defendant’s allegation that Tiffany Tillerson Taylor did not commit a first payment default pursuant to the terms of her loan with Plaintiff. This is an allegation Defendant makes in its Cross-Complaint. (Cross Compl., ¶12.) Additionally, Defendant already produced documents showing Taylor was continuing to make payments on her loan. (Park Decl., Exh. B.) RPD number 10 seeks documents supporting Defendant’s allegation that Plaintiff received proper title to Dion Lewis’s 2013 Jaguar XJL timely pursuant to the terms of the Master Dealer Agreement. This is another allegation from Defendant’s Cross-Complaint. (Cross Compl., ¶¶16-17.) Although it does not appear Defendant provided evidence with respect to Lewis’s title in its responses to RPDs, Set One, the proper procedure if Plaintiff believed Defendant’s responses were incomplete was to file a motion to compel further. The deadline to file a motion to compel further as to the first set of RPDs has already passed. The Court no longer has jurisdiction to rule on a motion to compel further responses as to the first set of RPDs.

With respect to sanctions, Plaintiff’s motion was denied. Sanctions are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to requests for production unless the court finds that the one subject to the sanction acted with substantial justification. (Code Civ. Proc., section 2031.300(c). Here, Plaintiff made this motion after Defendant failed to provide timely responses and the parties could not resolve their disputes over the discovery requests. Because Defendant served responses on October 21, 2022, after the deadline to serve responses had passed, the Court finds that Plaintiff was substantially justified in filing this motion. Sanctions are denied.