Judge: Mark E. Windham, Case: 20STLC00307, Date: 2023-03-15 Tentative Ruling

Case Number: 20STLC00307    Hearing Date: March 15, 2023    Dept: 26

Basta, Inc. v. Zendano, et al.

MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES

(CCP § 2030.300)

TENTATIVE RULING:

Plaintiff Basta, Inc.’s Motion for Order Compelling Further Responses to Special Interrogatories and Request for Sanctions is DENIED.

ANALYSIS:

On January 10, 2020, Plaintiff Basta, Inc. (“Plaintiff”) filed this action for “wrongful use of civil proceedings” against Defendant Irene Zendano, individually and as trustee of the Irene Valerie Zendano Family Revocable Living Trust U.T.D. May 9, 2015 (“Defendant”). Following Defendant’s failure to file a responsive pleading, Plaintiff obtained entry of default on August 13, 2021. On Febraury 3, 2022, the Court granted Defendant’s motion to vacate the entry of default and set an Order to Show Cause Re Proof of Service of Summons and Complaint for April 6, 2022. (Minute Order, 02/03/22.) On August 1, 2022, the OSC Re Failure to File Proof of Service was discharged. (Minute Order, 08/01/22.)

Defendant, through a special appearance, filed a Motion to Quash Service of the Summons and Complaint on August 18, 2022. The Motion to Quash was denied on October 10, 2022 and Defendant filed a responsive pleading: a Motion to Strike Portions of the Complaint set for hearing on March 22, 2023. 

On February 14, 2023, Plaintiff filed the instant Motion for Order Compelling Further Responses to Special Interrogatories and Request for Sanctions against Defendant. Defendant filed an opposition on March 2, 2023 and Plaintiff replied on March 9, 2023.

Discussion

Notice of the motion to compel further must be given “within 45 days of service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing,” otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c).) The 45-day deadline is mandatory and jurisdictional. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409.)

Plaintiff served Defendant with the subject Special Interrogatories on November 30, 2022. (Motion, Ramm Decl., Exh. 1.) Defendant served responses on December 25, 2022. (Id. at p. 4:8-10 and Exh. 2.) The instant Motion was filed and served on February 14, 2023.

The Motion was not timely filed nor served. Plaintiff contends, incorrectly, that the effective date of service of Defendant’s responses was December 27, 2022. (Motion, p. 4:8-10.) The statutes to which Plaintiff cite, however, simply provide that when a holiday, such as Christmas, falls on a Sunday the following Monday will also be a holiday. (Cal. Rules of Court, rule 1.11 [“When a judicial holiday specified by Code of Civil Procedure section 135 falls on a Sunday, the courts must observe the holiday on the following Monday”].) This is reiterated in the Government Code. (Govt. Code, §§ 6700, 6701.) Holidays are only excluded from the computation of time in which to perform an act if they fall on the last day for performance, which extends the time to perform to the next day that is not a holiday. (Code Civ. Proc., §§ 12, 12a [emphasis added].)

The effective date of service of Defendant’s discovery responses is not changed by the aforementioned statutes regarding holidays. Service by electronic mail “is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent.” (Code Civ. Proc., § 1010.6, subd. (a)(3)(A).) Also, electronic service increases “[a]ny period of notice, or any right or duty to do any act” by two court days. (Code Civ. Proc., § 1010.6, subd. (a)(3)(B).)

Applying these rules here yields the following: Defendant’s responses to the subject Special Interrogatories were served on December 25, 2022. 45 days from December 25, 2022 was February 8, 2023. Two court days after February 8, 2023 was February 10, 2023, making February 10, 2023 the statutory deadline to bring the Motion. The Motion was not filed or served until February 14, 2023, and therefore, must be denied.

Conclusion

Plaintiff Basta, Inc.’s Motion for Order Compelling Further Responses to Special Interrogatories, Set One, and Request for Sanctions is DENIED.

Defendant to give notice.