Judge: Layne H. Melzer, Case: 2023-01316081, Date: 2023-08-03 Tentative Ruling

Petitioner Safeco Insurance

1. Motion to Compel Answers to Form Interrogatories
2. Motion to Compel Answers to Special Interrogatories
3. Motion to Compel Production
4. Motion to Deem Facts Admitted

 

 

Petitioner Safeco Insurance has brought four unopposed discovery motions against respondent Carla Serrano:

1.    to compel verified responses without objections to Form Interrogatories [ROA #36];

2.    to compel verified responses without objections to Special Interrogatories [ROA #37];

3.    to compel verified responses without objections to Requests for Production of Documents (“RFPs”) [ROA #38]; and

4.    to deem admitted the RFAs served on Respondent and ordering her to pay sanctions of $572.  [ROA #39.]

 

As to motion no. 1, Petitioner’s counsel should be prepared at the hearing to confirm whether or not responses to the Form Interrogatories were, in fact, previously served.

 

Motion no. 2 is denied.

 

Motion no. 3 is denied.

 

As to motion no. 4, if counsel cures the defect of his unsigned declaration at or before the hearing, the motion will be granted.

 

Discussion

This is a case on an underinsured motorist arbitration.

 

Ins. Code § 11580.2(f) provides that, in the event of a dispute between an insurer and insured (concerning an uninsured or underinsured motorist claim), the determination as to whether the insured is entitled to recover damages and the amount of such damages “shall” be made by arbitration. (Rutter, PI, §7:293.5, citing Ins.C. § 11580.2(f).)

 

Discovery procedures available to the parties in uninsured motorist cases are basically the same as those available in CA civil litigation, subject to some specific limitations. (Rutter, PI §7:301, citing Ins.C. § 11580.2(f) and Mallard v. Progressive Choice Ins. Co. (2010) 188 CA4th 531, 540, 543-544.) Jurisdiction to resolve discovery disputes (including the issuance of any orders to compel discovery) is vested in the superior court (a) in the proper county for the filing of a lawsuit against the uninsured motorist for bodily injury arising from the accident or (b) in any county specified in the policy as a proper county for arbitration or action on the policy. (Rutter PI §7:304.6, citing Ins.C. § 11580.2(f)(1), (2) and Miranda v. 21st Century Ins. Co. (2004) 117 CA4th 913, 921-926.) 

 

Service

Service of a discovery motion in an uninsured motorist case is made in the same fashion as a motion in a civil suit. (See Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 927-928.)

 

The motions here were served on Respondent’s counsel by email.

 

Because Respondent has not appeared in this action, the court’s record does not have independent information to confirm who Respondent’s counsel is and what his address is.  But the discovery responses attached to Petitioner’s motions and supporting declarations shows the counsel and addresses to which service was made.

 

The wrinkle on this is that the proof of service for the discovery itself shows service on a different counsel and address.  This is not an issue where Respondent served responses (through different counsel), but there may be a service issue as to the discovery to which Respondent did not serve responses.

 

Discovery Motions

 

                   Form Interrogatories

If Respondent in fact did not respond to the Form Interrogatories served on her, the court may decide the pending motion as a motion to compel responses in the first instance.  No separate statement is required and there is no time limit to bring the motion.

 

The motion and counsel’s supporting declaration say that a response was served, but it appears to the court this may be in error:  no response is attached in the supporting papers and counsel’s attached meet and confer letter says no response was served. 

 

Counsel should be prepared to address this at the hearing and confirm whether or not a response to the Form Interrogatories was served.

 

Given that all the discovery was served together to that same counsel and Respondent served responses to two sets of the four sets served, the court finds that service of the Form Interrogatories was proper.

 

The court is thus inclined is to grant the motion to compel responses in the first instance as to the Form Interrogatories [ROA #36], should counsel confirm that no responses have previously been served.

 

                   Special Interrogatories

As to the Special Interrogatories, because responses were served (albeit it untimely), Petitioner needed to bring a motion to compel further responses.  Code Civ. Proc. §2030.300 (as opposed to 2030.290).  Such a motion requires both a separate statement and to be brought within 45 days of service of the response.  CRC 3.1345; Code Civ. Proc. §2030.300(c)

 

Petitioner did not comply with either of these requirements.  No separate statement has been filed.  Nor was the motion filed within 45 days of service of the response.

 

The responses to the special interrogatories were served 1/20/23 by email.  [Dailo Decl. (ROA #37), Ex. B.]  So last day to file a motion to compel further responses would have been 4/11/23.  Petitioner initially filed its motion on 4/20/23 for hearing in Dept. W15.  [ROA #12.]  But the case was reassigned to C12, the hearings vacated, and Petitioner instructed to consult with the clerk in C12 as to re-setting the hearing.  [ROA ##26, 29.]  Petitioner re-filed its motion on 6/2/23.  [ROA #37.]

 

Even giving Petitioner the benefit of its original filing date, its motion was filed beyond the deadline unless there was an extension of time to file in writing. Code Civ. Proc. § 2030.300(c).  Petitioner has not presented evidence of such an agreement.

 

Accordingly, Petitioner’s motion to compel [further] responses to Special Interrogatories [ROA #37] is denied.

 

          RFPs

Where there has been a response to RFPs that the propounding party finds inadequate, then the Code provides for a motion and order compelling production upon a showing of good cause, prior meeting and conferring, and the filing of a separate statement.  Code Civ. Proc. § 2031.310(b)(1) and (2); CRC 3.1345; TRG, Cal. Prac. Guide, Civil Procedure before Trial §8:1494.1.

 

Again, the motion to compel further responses to RPFs must be filed within 45 days of service of the response.  Code Civ. Proc. §2031.310(c).

 

A motion to compel further responses to request for production of documents must set forth specific facts showing good cause justifying the discovery sought by the discovery request.  Code Civ. Proc. § 2031.310(b)(1).  In order to meet the burden of showing good cause, the moving party must show: (1) relevance to the subject matter and (2) specific facts justifying discovery.  Weil & Brown, Cal. Civ. Proc. Before Trial, 8:1495.6 (The Rutter Group 2011).  Declarations are generally used to show good cause, and they must contain specific facts and not mere conclusions.  Id. at 8:1495.7.  If the moving party demonstrates good cause, then the opposing party must justify any objections.  Kirkland v Superior Court (2002) 95 Cal. App. 4th 92, 98.

 

Objections are waived if the responses are not timely served.  Code Civ. Proc. §3031.300(a). Again, an otherwise timely response does not waive objections if it is unverified. Code Civ. Proc. §2031.250(a); Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal. App. 4th 651, 657.

 

Again, Respondent served untimely responses to the RFPs at the same time she served her responses to the Special Interrogatories.  [Dailo Decl. (ROA #38), Ex. B.]  So Petitioner was required to file a motion to compel further responses under Code Civ. Proc. § 2031.310 rather than for responses in the first instance under section 2031.300.

 

Petitioner did not.  Thus, for this motion there are the same issues of timeliness and separate statement discussed above for the Special Interrogatories.  There is the additional issue that Petitioner has not made any showing of good cause.

 

For these reasons, the motion to compel [further] responses to RFPs [ROA #38] is denied.

 

          RFAs

A propounding party may ask the court for an order that deems the matters contained in the requests for admission admitted if the receiving party fails to respond to the requests for admission. Code Civ. Proc. § 2033.280(b). The court shall grant the order unless it finds that the party to whom the requests were directed has served responses in conformance with Code Civ. Proc. § 2033.220 before the hearing on the motion. Code Civ. Proc. § 2033.280(c). Responses to requests for admission are due 30 days after service (plus appropriate time for method of service). Code Civ. Proc. §§ 1012, 1013, 2033.250(a). If the party to whom the requests for admission are directed fails to respond, that party waives all objections, including claims of privilege and work product protection. Code Civ. Proc. § 2033.280(a).

 

The first issue on this motion is whether the RFAs were properly served on Respondent.  For the reasons discussed above in connection with the Form Interrogatories, the court finds that they were.

 

Respondent apparently did not serve responses to the RFAs.  The Dailo Declaration [ROA #39] implies this.  [Id., ¶ 3 and Ex. B]  But that declaration is not signed. 

 

If counsel cures this at or before the hearing, the motion to deem RFAs admitted [ROA #39] will be granted and sanctions of $572 awarded.