Judge: Melvin D. Sandvig, Case: 21STCV21293, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV21293    Hearing Date: December 6, 2022    Dept: F47

Dept. F47

Date: 12/6/22

Case #21STCV21293

MOTION TO COMPEL FURTHER RESPONSES

(Special Interrogatories, Set 1)

Motion filed on 11/8/22.

MOVING PARTY: Defendant HDL, Inc. dba Pacoima Adult Day Care (erroneously sued and served as GMA Management Group, Inc. dba Pacoima Adult Day Care)

RESPONDING PARTY: Plaintiff Phyllis Ginolfi

NOTICE: untimely

RELIEF REQUESTED: An order compelling Plaintiff to serve further responses to Form Interrogatories, Set 1, and Special Interrogatories, Set 1.  Additionally, Defendant requests sanctions against Plaintiff and/or Plaintiff’s attorney of record in the amount of $1,580.00.

RULING: The motion is denied.

This action arises out of an alleged fall that occurred while Plaintiff Phyllis Ginolfi (Plaintiff)

was a patient at Defendant’s adult day care facility.  Plaintiff alleges Defendant’s negligence caused her fall and alleges injuries and damages as a result.  On 6/7/21, Plaintiff filed this action against Defendant and Right Choice In-Home Care, Inc. for: (1) Dependent Adult/Elder Abuse and (2) Negligence.  Defendant filed its Answer on 7/27/21.

On 8/31/21, Defendant served the subject discovery on Plaintiff.  (D’Andrea Decl.).  Plaintiff failed to timely respond.  Id.  After meet and confer efforts, Defendant received responses to the subject discovery on 1/24/22.  Id.  Plaintiff found the responses to be deficient as some were incomplete and evasive and others asserted objections which were waived due the untimeliness of the responses.  Id.  On 1/28/22, Defendant sent Plaintiff a meet and confer letter which went unanswered.  Id.  On 3/10/22, the counsel for the parties spoke telephonically and agreed to extend the deadline for filing the instant motion an additional 45 days, or until 4/25/22.  Id.  Plaintiff never served further responses. 

On 4/22/22, Defendant filed and served its initial discovery motion seeking: (1) an order compelling Plaintiff to serve further responses to Form Interrogatories, Set 1, and Special Interrogatories, Set 1.  Additionally, Defendant requested sanctions against Plaintiff and/or Plaintiff’s attorney of record in the amount of $1,580.00. 

The initial motion was originally set for hearing on 6/29/22 when the case was pending in Dept. 32.  After the case was transferred to Dept. F47, the hearing on the motion was rescheduled for 9/20/22.  The Court’s tentative ruling was to deny the motion.  However, at the hearing, the Court denied the motion without prejudice.  (See 9/20/22 Minute Order).

The initial motion was denied because it was untimely under CCP 2030.300(c).  (Although the Court also noted certain other procedural defects in the motion, those defects were not the basis for the denial of the motion).  As noted by the Court in its 9/20/22 ruling, CCP 2030.300(c), with regard to motions to compel further responses to interrogatories, provides:

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, the propounding party waives any right to compel a further response to the interrogatories. (emphasis added)

In the initial motion, Defendant’s counsel stated that it was during a “teleconference” that “[P]laintiff’s counsel granted an additional 45 days by which to file the instant motion” and “[b]y way of that extension, the instant motion must be filed by April 25, 2022.”  However,  Defendant’s counsel did not state that the oral extension was confirmed in writing and no evidence of any such writing was attached as an exhibit to the motion.  (See 9/20/22 Minute Order).  The Court noted that the motion was untimely and Defendant waived its right to compel a further response to the interrogatories.  Id.

Seven weeks after the Court denied, without prejudice, the prior motion regarding the same discovery, on 11/8/22, Defendant filed and served, by electronic service, the instant motion which seeks an order compelling Plaintiff to serve further responses to Form Interrogatories, Set 1, and Special Interrogatories, Set 1.  Additionally, Defendant requests sanctions against Plaintiff and/or Plaintiff’s attorney of record in the amount of $1,580.00.  (The Court notes that although the notice of motion indicates that it relates to Special and Form Interrogatories, the motion only relates to Special Interrogatories as Form Interrogatories are the subject of a separate motion scheduled for hearing on 12/8/22.).  The filing and service of this motion on 11/8/22 for the 12/6/22 hearing date is untimely.  A motion must be served and filed at least 16 court days before the hearing date plus an additional two court days for electronic service.  See CCP 1005(b); CCP 1010.6(a)(4)(B).  As such, the service is short by one day (due to the three court holidays in November).

Even if the motion had been timely served, it is still untimely under CCP 2030.300(c).  Defendant’s counsel has now stated in the supporting declaration that the extension of time to file the motion was confirmed in writing and has provided a copy of the email confirmation.  (See D’Andrea Decl. ¶18, Ex.I).  However, the instant motion was not filed and served until 11/8/22, well beyond the 4/25/22 extension.  While the initial motion was denied without prejudice, Defendant presents no authority which allows it to rely on the filing and service date of the initial motion in this subsequently filed and served motion.  In fact, the instant motion concedes that it must be filed by 4/25/22 which it was not.  (See Motion, p.4:11-12; D’Andrea Decl. ¶18).  As such, the instant motion also fails due to untimeliness.  See CCP 2030.300(c); Vidal Sassoon, Inc. (1983) 147 CA3d 681, 685; Sperber (1994) 26 CA4th 736, 745; Sexton (1997) 58 CA4th 1403, 1409-1410.