On July 19, 2021, Plaintiff Amber Lynn Webster (“Plaintiff”) filed this action against defendant The City of Hermosa Beach (“Defendant”) alleging (1) dangerous condition of public property and (2) negligence.  Plaintiff alleges that she was injured after colliding with a pothole while riding an electric bicycle (“e-bike”) on a public street in Hermosa Beach.¿ 

On October 31, 2022, Defendant served Plaintiff with a Notice of Inspection (“October 31 Notice”) of Plaintiff’s e-bike for November 16, 2022.  The October 31 Notice states, in relevant part, “Bicycle is defined to mean the dual bicycle/electric bicycle.”  After being served with the Notice via email, Plaintiff’s counsel responded without objection, “as we discussed [the City’s] expert can make a full exam of the bike at the 11/16 inspection.”   

On November 16, 2022, Defendant conducted the inspection.  Defendant’s expert Dough Shapiro determined the e-bike’s battery was dead, thereby preventing an inspection of the e-bike’s electrical components.  Defendant’s counsel advised Plaintiff’s counsel that Defendant could not complete a full inspection of the e-bike.  Plaintiff’s counsel could not rectify the battery issue.  Plaintiff later objected to Defendant’s subsequent requests to produce the e-bike once more so that Defendant could complete the inspection.   

On January 20, 2023, Defendant served Plaintiff with an Amended Notice of Inspection of the e-bike, which states in relevant part: “Plaintiff must provide the BICYCLE with a fully charged battery prior to the arrival of the City’s inspector, or the City will consider Plaintiff’s failure to do so to be a breach of her obligations to produce all relevant evidence to the City under the Civil Discovery Act.”  Plaintiff objected to the Amended Notice for improper service. 

On February 6, 2023, Defendant served a Second Amended Notice to rectify the service issue.  Plaintiff continued to object to the inspection.  Defendant moves for an order to compel Plaintiff’s compliance with its October 31 inspection demand.  Plaintiff filed an opposition and Defendant filed a reply.  

Any party may obtain discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, of control of any other party to the action.¿ (Code Civ. Proc., § 2031.010, subd. (a).) 

If a party filing a response to a demand for inspection, copying, testing or sampling thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.¿ (Code Civ. Proc., § 2031.320, subd. (a).)  There is no time limit to file a motion to compel compliance with an inspection demand.  (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903.) 

As a threshold matter, the Court finds the instant motion is timely.  Plaintiff argues the instant motion is a motion to compel further which Defendant was required to serve within 45 days after the November 16 inspection of the e-bike.  Notice of a motion to compel further response must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.¿ (Code Civ. Proc., § 2030.300, subd. (c); Code Civ. Proc., § 2031.310, subd. (c).)¿  

Defendant brings a Motion to Compel Compliance with Defendant’s October 31 Notice.  The October 31 Notice states, in relevant part, “Bicycle is defined to mean the dual bicycle/electric bicycle.”  (Cohn Decl., ¶¶ 5-6; Ex. B.)  After being served with the Notice via email, Plaintiff’s counsel responded without objection, “as we discussed [the City’s] expert can make a full exam of the bike at the 11/16 inspection.”  (Cohn Decl., ¶ 7; Ex. C.)   

It is undisputed Plaintiff produced the e-bike without an adequately charged battery, which prevented Defendant’s expert from conducting a full inspection of the e-bike.  Thereafter, Plaintiff objected to the October 31 Notice.  Accordingly, Plaintiff failed to comply with Defendant’s October 31 Notice, necessitating the instant motion to compel Plaintiff’s compliance, and not a motion to compel further responses.  Unlike a motion to compel further, a party is not required to serve a motion to compel compliance within 45 days, (see Standon Co., supra, 225 Cal.App.3d at p. 903 (explaining the difference between a motion to compel further and a motion to compel compliance), nor does an informal discovery conference need to be held first (see Los Angeles Superior Court, Eighth Amended Standing Order, Section 9, subdivision E). 

Plaintiff next argues that Defendant’s motion is untimely because Judge Crowfoot set March 1, 2023 as the cutoff date for fact discovery and motions when granting Defendant’s motion to continue the trial.  (See 1/11/2023 Minute Order.)  However, as Defendant points out, the Court’s order does not require discovery motions to be heard before March 1, 2023.  Except as otherwise provided, any party shall be entitled as a matter of right to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.¿ (Code Civ. Proc., § 2024.020, subd. (a).)  Here, following the Court’s Order granting Defendant’s motion to continue the trial, trial is now set for April 24, 2023.  Thus, the last day this motion can be heard is April 9, 2023.  Accordingly, Defendant’s motion is timely. 

Defendant is entitled to an order compelling Plaintiff to produce her e-bike for inspection.  Plaintiff did not object to Defendant’s October 31 Notice.  Plaintiff’s counsel indicated Defendant’s expert “can make a full exam of the bike at the 11/16 inspection.”  (Cohn Decl., ¶ 7; Ex. C.)  However, as previously discussed, Plaintiff produced the e-bike without a charged battery, which prevented Defendant’s expert from conducting an inspection of the electrical components of the e-bike.  Accordingly, Plaintiff did not permit “a full exam of the bike.”  Plaintiff failed to comply with the October 31 Notice.   

Accordingly, the Motion to compel compliance is GRANTED.  

 Plaintiff is ordered to produce the e-bike with a fully charged battery and allow Defendant’s expert to conduct an examination of the entire e-bike, including its electrical components, within 10 days of this Order.