Judge: Michael Shultz, Case: 23CMCV00698, Date: 2023-10-19 Tentative Ruling
Case Number: 23CMCV00698 Hearing Date: March 21, 2024 Dept: A
Thursday,
March 21, 2024, at 8:30 a.m.
[TENTATIVE] ORDER DENYING MOTION TO
COMPEL FURTHER DISCOVERY RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, FORM
INTERROGATORIES FORM INTERROGATORIES, SPECIAL FORM INTERROGATORIES, AND
REQUESTS FOR ADMISSION.
Plaintiff alleges that Defendants agreed to
lend Plaintiff $450,000 pursuant to a written contract. Plaintiff requested an
extension for repayment and an updated payoff demand so that Plaintiff could
refinance the loan and avoid a pending balloon payment. Plaintiff alleges that Defendant
intentionally delayed providing the information in order to charge Plaintiff
the balloon payment late charge of $46,635. Plaintiff alleges claims for breach
of contract, breach of the implied covenant of good faith and fair dealing,
conversion, common counts, and statutory violations for unfair business
practices.
II.
ARGUMENTS
Defendant,
Lil’Wave Financial, Inc. (“Defendant”) requests an order compelling Plaintiff’s
further response to set one of request for production of documents, form
interrogatories, special
interrogatories, and requests for admission as well as an order imposing
sanctions. Defendant contends that Plaintiff’s objections are without merit.
In
opposition, Plaintiff argues that the motion is untimely filed and served more
than 45 days past the deadline for moving to compel further responses. Defendant
did not respond to Plaintiff’s request to meet and confer.
Defendant
did not file a reply brief by March 14, 2024 (five court days before the
hearing.) Code Civ. Proc., § 1005 subd. (b).)
III.
DISCUSSION
Notice
of motion to compel further responses must be given within 45 days of 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 … ." (Code Civ. Proc., § 2030.300 subd. (c); Code Civ. Proc., § 2031.310 subd. (c); Code Civ. Proc., § 2033.290.) Plaintiff’s responses to the discovery at issue
were served on November 21, 2023, by electronic service but consisted only of
objections. (Mot. Ex. 2.) Plaintiff did not serve substantive responses
requiring verification. (Id.) Accordingly, the 45-day deadline did not
begin to run. (Golf
& Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 135 ["In this case, the language is clear that the clock on a motion
to compel begins to run once ‘verified responses’ or ‘supplemental verified
responses’ are served. … the insertion of the word ‘verified’ before
the word ‘responses’ necessarily requires us to exclude from the provision what
it does not mention – unverified responses. … Thus, if responses are not
verified, the clock cannot begin to run."].)
Defendant,
however, did not meet and confer in good faith prior to filing the motion.
Defense counsel sent one email on December 4, 2023, demanding substantive
responses by December 15, 2023, or a motion would be filed. (Mot. Ex. 3, .pdf
p. 88.) Plaintiff responded with an email on Friday, December 15, 2023, requesting
an extension to provide further responses as the client was out of the country.
(Nicholas D’Amico declaration, Ex. 1.) Defendant did not respond.
The
Discovery Act obligates the moving party to “declare that he or she has made a
serious attempt to obtain an informal resolution of each issue” prior to initiating
a motion to compel. (Townsend
v. Superior Court (1998) 61
Cal.App.4th 1431, 1435 [adopting
federal guidelines requiring the parties to “present to each other the merits
of their respective positions with the same candor, specificity, and support
during informal negotiations as during the briefing of discovery motions. Only
after all the cards have been laid on the table, and a party has meaningfully
assessed the relative strengths and weaknesses of its position in light of all
available information, can there be a 'sincere effort' to resolve the matter.”].)
Defendant’s
threat to file a motion without responding to Plaintiff’s email request for
additional time and without offering a time to meet informally does not
constitute a “serious attempt” at an informal resolution.
IV.
CONCLUSION
Based on
the foregoing, Defendant’s motion is DENIED.