Judge: John C. Gastelum, Case: 21-01225035, Date: 2022-08-30 Tentative Ruling

Motion to Compel Production

Tentative Ruling:  Plaintiff Griffin Burke (“Plaintiff”) moves to compel further responses to his Requests for Production of Documents, Set One (the “Requests”) by Defendant Grace Kwahk, CSR, Inc. (“Defendant”).

As an initial matter, Plaintiff argues Defendant failed to adequately meet and confer in good faith on the issues raised by this Motion.  On April 12, 2022, Plaintiff sent Defendant a meet and confer letter.  (Declaration of Griffin Burke (“Burke Decl.”), ¶ 5.)  Counsel for Defendant responded, stating Defendant would stand on its objections that the discovery was served too early.  (Id., ¶ 6.)  The Court finds the meet and confer requirement has been satisfied.

Plaintiff served the Requests on March 10, 2022.  (Burke Decl., Ex. 2.)  Defendant served responses on April 12, 2022, with an objection to each and every Request, on the grounds that the discovery was served prematurely.  (Id., Ex. 3.)  Defendant asserted it was never properly served with the Summons and Complaint and only filed its responsive pleading on March 23, 2022.  (Ibid.) 

Plaintiff argues Defendant was properly served with process on February 22, 2022 and the Requests were served in a timely manner on March 10, 2022, 16 days after service on Defendant was complete.  Plaintiff filed a Proof of Service of Summons showing purported service on Defendant on February 22, 2022.  (Id., Ex. 1 [ROA 56].)  But that Proof of Service does not comply with the Code of Civil Procedure, which requires the name of the person to whom a copy of the summons and of the complaint were delivered, and, if appropriate, his or her title or the capacity in which he or she is served.  (Code Civ. Proc., § 417.10(a).)  The Proof of Service fails to indicate who was served on Defendant’s behalf and under what capacity he or she was served.  Thus, Plaintiff has failed to demonstrate that service was properly made on February 22, 2022, which is required to show the Requests were timely served.

Plaintiff argues Defendant has waived any argument that service was improper by answering the Complaint.  Even if this were true and Defendant has waived any objection to improper service, Plaintiff has not shown that such waiver would serve to retroactively make improperly served discovery requests timely, and the Court finds no reason to support such a finding.  Thus, the Court rejects Plaintiff’s contention that by answering the Complaint, Defendant has somehow waived its objection that the Requests were not timely served. 

Given the foregoing, the Court finds the Requests were not timely served pursuant to Code of Civil Procedure section 2030.020(b).)  Accordingly, Plaintiff’s Motion is DENIED.

The Court must impose a monetary sanction against any party who unsuccessfully makes a motion to compel further response to a demand, 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., § 2031.310(h).)  The Court finds no substantial justification for Plaintiff’s filing of this Motion, given that Defendant had already appeared before the Motion was filed and Plaintiff could have re-served the Requests on counsel to obtain the sought-after responses.  The Court therefore grants Defendant monetary sanctions against Plaintiff in the amount of $585.00. 

Defendant to give notice.