Judge Kerry Bensinger, Case Number: 22STCV27721, Date: 2023-08-15 Tentative Ruling

On August 25, 2022, Plaintiffs Joshua Cliffords and Benjamin
Cliffords, individually and as successors in interest to Gloria Cliffords,
initiated this action against Defendants, Waterstone Apartments CA, LLC (“Waterstone”),
Cushman & Wakefield of California, Inc., Cushman & Wakefield U.S., Inc.,
and Pria Perea (“Perea”), for the wrongful death of Gloria Cliffords. Plaintiffs allege that Ms. Cliffords was
residing in Defendants’ premises when she tripped and fell due to a dangerous
condition in the doorway leading to her mailbox. Ms. Cliffords sustained injuries which
ultimately led to her death.

On December
28, 2022, Waterstone and Perea (hereafter, “Defendants”) propounded Set One of
Form Interrogatories, Special Interrogatories, Requests for Productions of
Documents, and Requests for Admissions on Plaintiffs.

On March
27, 2023, Plaintiffs’ counsel provided objection-only responses and indicated they
intended to provide substantive responses within the next week.

Having
received no substantive responses, Defendants contacted Plaintiffs on May 29,
2023 and June 1, 2023 to inquire about the status of the substantive discovery
responses.

On June 1,
2023, Plaintiffs stated they would not provide further responses. Plaintiffs
said the 45-day deadline within which to bring a motion to compel further had
lapsed. At no point was an extension to
file motions to compel further requested or granted.

On July 24,
2023, Defendants filed this motion for relief pursuant to Code of Civil
Procedure section 473, subdivision (b).

The motion
was heard on August 15, 2023. At the
hearing, the Court discussed with the parties whether the 45-day clock to bring
a motion to compel further was triggered in this case. After oral argument, the Court continued the
hearing for further briefing. The
parties were directed to address the issues discussed at the hearing.

The court may, upon any terms as
may be just, relieve a party or his or her legal representative from a
judgment, dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect.
Application for this relief shall be accompanied by a copy of the answer or
other pleading proposed to be filed therein, otherwise the application shall
not be granted. (Code Civ. Proc., § 473, subd. (b).)

The party or the legal
representative must seek such relief “within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was
taken.”¿ (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell
(1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the
entry of default, and hence relief under section 473 was unavailable”]; People
v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for
relief under section 473 must be brought “within a reasonable time, in no case
exceeding six months”].)¿¿¿ The “other proceedings” language of the
section 473 generally applies to discovery demands. (Zellerino v. Brown (1991) 235
Cal.App.3d 1097, 1106.)

A party has 45-days from the date
verified responses are served to bring a motion to compel. (Code Civ.
Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).)¿ Once the 45-day deadline
lapses, a court is without jurisdiction to reach the merits of a motion to
compel further. (Sexton v. Superior
Court (1997) 58 Cal.App.4th 1403, 1409-1410.) There is no authority under the Discovery Act
for relief for untimely motions to compel further responses. However, relief may be available under CCP
§ 473(b) based on “mistake, inadvertence, surprise, or excusable neglect”
where the Discovery Act contains no analogous provision for relief. (See Zellerino, supra, 235
Cal.Ap.3d at p. 1107; see also Weil & Brown, Civ. Proc. Before Trial (The
Rutter Group 2023), ¶ 8.10.10.)
Conversely, where the Civil Discovery Act provisions apply, relief from
discovery orders and sanctions cannot be obtained under CCP § 473(b). (Id.)

The principal issue to be decided
is whether unverified, objection-only responses to discovery trigger the 45-day
deadline within which to bring a motion to compel further. As noted in Golf & Tennis Pro Shop,
Inc. v. Superior Court (2022) 84 Cal.App.5th 127, no California Court of
Appeal has yet to confront this issue. After
consideration of the parties’ supplemental briefing, the Court concludes unverified,
objection-only responses do not trigger the 45-day clock. Because the Court arrives at this conclusion,
the Court need not address whether Defendants merit 473(b) relief.

“Courts have construed the
discovery statutes broadly, so as to uphold the right to discovery. [Williams
v. Sup.Ct. (Marshalls of CA, LLC) 3 C5th 531, 541, 220 CR3d 472,
480—disclosure a matter of right unless statutory or public policy
considerations clearly prohibit it.”
(Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter
Group 2023) ¶ 8.36.) “The expansive
scope of discovery is a deliberate attempt to take the game element out of the
trial preparation and to do away with the sporting theory of litigation—namely
surprise at trial.” (Puerto v. Superior Court (2008) 158 Cal.App.4th
1242, 1249 [cleaned up].) Another key
legislative purpose of the discovery statutes is “to educate the parties
concerning their claims and defenses so as to encourage settlements and to
expedite and facilitate trial.” (Emerson
Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.)

The parties agree objection-only
responses do not need to be verified, but reach different conclusions the whether
the 45 day clock applies.

The place to begins is the statutory
language. When construing a statute, the
court’s task is “to discern the Legislature’s intent. The statutory language itself is the most
reliable indicator, so we start with the statute’s words, assigning them their
usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we
presume the Legislature meant what it said, and the statute’s plain meaning
governs.” (Wells v. One2One Learning
Foundation (2006) 39 Cal.4th 1164, 1190.)

Here, Code of Civil Procedure
sections 2030.300, 2031.310, and 2033.290 are the statutes in question. These code sections provide in relevant part:
“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any
specific later date to which the propounding party and the responding party
have agreed in writing[1], the
propounding party waives any right to compel a further response to the [interrogatories/demand/requests
for admission] (emphasis and footnote added).”
(Code Civ. Proc., § 2030.300, subd. (c); 2031.310, subd. (c); 2033.290,
subd. (c).)

Under the plain language, service
of a verified response triggers the 45-day deadline to bring a motion to
compel further. The parties agree objection
only responses do not require verifications.
Based upon the plain language of the statutes, objection-only responses do
not start the clock; verified responses do.

Plaintiff argues such a construction
leads to an absurd result: a motion to compel further could be brought at any
point up to the discovery cut-off date.[2] But as Defendants point out, motions to
compel initial responses do not have time limitations and no one argues the
lack of time constraints leads to absurd results. Nor did the Legislature believe the lack of
time constraints would lead to absurd results.
The two contexts – motions to compel initial and motions to compel
further with respect to objection only responses -- are not so dissimilar. The Court’s role is not to re-write or amend
the statutes to add time constraints. The
Legislature could have done so and did not.

Moreover, to allow a motion to
compel further in the circumstances presented here promotes the policy
considerations that animate the discovery statutes -- to remove gamesmanship[3] from litigation
and to promote disclosure of information.

Based
on the foregoing, Defendants may bring their motions to compel further
responses to the at-issue discovery responses.

Parties who intend to submit on this tentative must send an
email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on
the tentative as directed by the instructions provided on the court website at
www.lacourt.org. Please be advised that if you submit on the tentative
and elect not to appear at the hearing, the opposing party may nevertheless
appear at the hearing and argue the matter. Unless you receive a
submission from all other parties in the matter, you should assume that others
might appear at the hearing to argue. If the Court does not receive
emails from the parties indicating submission on this tentative ruling and
there are no appearances at the hearing, the Court may, at its discretion,
adopt the tentative as the final order or place the motion off calendar.

[1] The parties did not agree in
writing to extend the filing date for Defendants’ motions to compel further.

[2] This very point was made in Golf & Tennis Pro Shop, Inc., supra, 84 Cal.App.5^th at 232. “We can leave for another day the possibility
of an ‘absurd result’ as the trial court put it, if there is no time limit on a
motion to compel involving objections.” The
Court of Appeal went on to add in a footnote, “[b]ut that other day will
doubtless come, and we are more likely to get it right if the Legislature
addresses it before we have to.” (Id. at fn.5.) In this case, the day has come but the Legislature
has yet to address it.

[3] For example, Plaintiff represented
he would serve supplemental responses to Defendants’ discovery requests but
thereafter refused once the 45-day deadline passed.

[4] Both parties have a series of
motions to compel further on calendar. At
the hearing, the Court will address and inquire about the status of these various
motions.