Judge Kerry Bensinger, Case 21STCV36314 2023-05-02 Tentative Ruling

On October 1, 2021, plaintiff Alejandro Gaston Torres (“Plaintiff”) filed this action against defendant Jontai Joshua Jeter (“Defendant”) arising out of injuries Plaintiff allegedly sustained when he fell off or through the roof of a carport that he was repairing at Defendant’s request. Plaintiff filed the First Amended Complaint (“FAC”) on July 8, 2022.

On August 9, 2022, Defendant filed an Answer to the FAC and simultaneously served Plaintiff with written discovery requests. On October 28, 2022, after Defendant provided several extensions to respond to the discovery, Plaintiff served responses by electronic service.

On December 14, 2022, Defendant filed these motions to compel Plaintiff’s further responses to Set One of Defendant’s Form Interrogatories, Special Interrogatories, and Requests for Production. Defendant also filed a motion to deem admitted the Request for Admissions, Set One (“RFA”), or alternatively, to compel a further response to the RFAs.

The parties participated in an Informal Discovery Conference on February 24, 2023 in an attempt to resolve these discovery disputes. At the IDC, the Court advised defense counsel that Defendant would have to file a separate motion in order to deem the RFAs admitted. However, Plaintiff’s counsel represented that Plaintiff would serve verified further responses to all the RFAs in dispute.

On April 17, 2023, Plaintiff filed oppositions to these motions. Defendant replies.

As a threshold matter, and as indicated at the IDC, Plaintiff’s motion regarding the RFAs are procedurally improper. Defendant should have filed two separate motions. However, improperly seeking two different forms of relief within the same motion does not preclude the Court from considering each motion. Further, for the reasons noted herein, the Court does not reach the merits of Defendant’s motions.

Under Code of Civil Procedure section 2031.310, parties may move for a further response to requests for production of documents where a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or where an objection is without merit or too general.

Notice of the motions 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).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b); Code Civ. Proc., § 2031.310, subd. (b).)

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, rule 3.1346.)

If a party to whom requests for admission are directed fails to serve a timely response, the propounding party may move for an order that the truth of the matters specified in the requests be deemed admitted (Code Civ. Proc., § 2033.280, subd. (b).)¿ Moreover, failure to timely serve responses waives objections to the requests. (Code Civ. Proc., § 2033.280, subd. (a).)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery. (Code Civ. Proc., § 2023.010.)

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary sanction . . . 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., §§ 2030.290, subd. (c), 2031.300, subd. (c).)¿¿ In the context of a motion to deem requests for admission admitted, it is mandatory that the court impose monetary sanctions on the party or attorney, or both, whose failure to serve a timely response to the request necessitated the motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).)¿¿¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party’s misuse of the discovery process, monetary sanctions against the party’s attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney’s actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney’s advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿¿

Plaintiff’s motions to compel further responses are untimely. Notice 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).) Delaying the motion to compel further responses to interrogatories beyond the 45-day time limit deprives the court of jurisdiction to order further answers. (Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App3d 681, 685.) The time within which to make a motion to compel production of documents is mandatory and jurisdictional even if raised for the first time at the hearing. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1405, 1410.)

Here, Plaintiff served responses on October 28, 2022. Accordingly, Plaintiff was required to bring this motion within 45 days of that service—December 12, 2022. Plaintiff did not file this motion until December 14, 2022.

In Defendant’s motions to compel further responses, Defendant contends that Plaintiff did not provide verified responses. However, a review of the at-issue discovery responses reveal that the responses consist entirely of objections verified by Plaintiff’s counsel. Under these circumstances, only the attorney’s signature is required. (Code Civ. Proc., 2030.250, subd. (a), (c); see Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d 399, 344.)

Based on the foregoing, the Court is without jurisdiction to compel Plaintiff’s further responses. Plaintiff’s motions to compel further responses are DENIED.

The Court cannot rule on Defendant’s motion to deem RFAs admitted. It’s clear Defendant granted Plaintiff until October 28, 2023 to respond to the discovery requests, including RFA’s. What is unclear is whether the extension contemplated responses or objections. That distinction makes a difference. If Plaintiff were granted an extension that contemplated objections, and Plaintiff interposed objections only (as they did), then Defendant’s only recourse was a motion to compel, which is untimely. If, on the other hand, the extension contemplated answers only, and Plaintiff did not answer, then Defendant’s motion to deem the RFA’s admitted should be granted as the motion to deem RFA’s admitted is not bounded by the 45-day motion to compel rule.

Accordingly, the Court will hear argument as to the agreement on the terms of the RFA extension.

The Court will hear argument regarding the timeliness of Plaintiff’s responses to Defendant’s RFAs. The Court will consider Plaintiff’s request for sanctions thereafter.

Hon. Kerry Bensinger

Judge of the Superior Court