Judge: Ralph C. Hofer, Case: 23GDCV02625, Date: 2024-11-15 Tentative Ruling

Case Number: 23GDCV02625    Hearing Date: November 15, 2024    Dept: D

Date Motion served:              September 19, 2024

ANALYSIS:

Procedural

Motion to Compel Further Responses

The memorandum indicates this motion is brought under CCP § 2030.290, under which, “If a party to whom interrogatories are directed fails to serve a timely response,” that party “waives any right to exercise the option to produce writings...as well as any objection to the interrogatories, including one based on privilege or on the protection for work product...”  Under subdivision (b), “The party propounding the interrogatories may move for an order compelling response to the interrogatories.”

The motion indicates, however, that defendant has in fact served responses to the subject interrogatories, and also served verified supplemental responses to the discovery before this motion was filed.  [Chica Decl., paras. 8-10, Exs. 4, 6]. 

There is accordingly no need for an order compelling responses to the interrogatories, as responses have already been served.

Plaintiff should be pursuing a motion to compel further responses to the discovery, not initial responses. 

This result is problematic, as plaintiff has not in the motion cited to any statutory authority supporting an order to compel further responses, so there is no notice to the responding party that such relief is being sought.   In addition, plaintiff has failed to comply with mandatory procedures for pursuing a motion to compel further responses to interrogatories, including meeting and conferring concerning the latest set of responses, and filing a separate statement, as discussed below.

Moreover, plaintiff filed this motion under a reservation for a motion to compel discovery “not ‘Further Discovery.’”  This approach is improper.   The motion should have been brought and reserved as a motion to compel further discovery, to avoid calendar congestion and jumping ahead of other discovery motions of this nature.

 To the extent the motion appears to argue that defendant did not timely serve responses, and the initial responses were not verified, plaintiff concedes that supplemental responses now have been served.  The copy of those responses submitted with the moving papers show that the supplemental responses were in fact verified.  [See Chica Decl., Ex. 6, p. 126].  No order compelling responses is warranted here, and if plaintiff wants to argue that objections have been waived, plaintiff should have done so in a motion to compel further responses.  The motion is be denied on the ground responses have been served. 

No Separate Statement

            Since what plaintiff seeks by this motion is further code compliant responses without objections, this is a motion for further responses to interrogatories. 

            As pointed out in the opposition, such a motion requires the filing of a separate statement. 

CRC Rule 3.1345 requires that, “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement.”  

The motions that require a separate statement include a motion:

“(2) To compel further responses to interrogatories.”

The motion here concerns responses and their content, including the assertion of objections, and compliance with the Code.  The responses submitted with the moving papers, particularly the supplemental responses,  include substantive responses along with objections. 

The separate statement requirement is mandatory, and warrants the trial court denying a motion which is not accompanied by a separate statement.  People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4^th 1539, 1554; Mills v. U.S. Bank (2008) 166 Cal.App.4^th 871, 893 (concluding that because the propounding party did not comply with the separate statement requirements, “the trial court was well within its discretion to deny the motion to compel discovery on that basis.”).

Without a separate statement the court cannot in good faith determine whether plaintiff is entitled to further responses.  

No Meet and Confer on Supplemental Responses

Since what plaintiff seeks by this motion is further code compliant responses without objections, this is a motion for further responses to interrogatories. 

            As pointed out in the opposition, such a motion requires that before filing the motion, moving party meet and confer in good faith.

Under CCP § 2030.300, where a party brings a motion to compel a further response to interrogatories such a motion “shall be accompanied by a meet and confer declaration under Section 2016.040.

Section 2016.040 requires:

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

The motion includes a meet and confer correspondence addressing the problems with defendant’s initial discovery responses, but does not show that any meet and confer took place since the service of the supplemental responses on August 5, 2024.  [See Chica Decl., paras. 9, 10, Exs. 5, 6].  The declaration of counsel concedes that no meet and confer occurred following service of the supplemental responses, stating that, “Plaintiff was left with no reasonable alternative but to file this Motion.”  [Chica  Decl., para. 12].

The court does not consider this approach a reasonable attempt to informally resolve the issues prior to filing the motion. Contrary to the suggestion in the moving papers that the supplemental responses did not include substantive responses, that assertion is not true. The court’s review of those responses shows that substantive responses were provided to most, if not all of, the interrogatories. [See Ex. 6].  It would appear that had there been a meaningful meet and confer, the matter may not have required court intervention.

Defendant in opposition, in fact, indicates that plaintiff granted extensions for the filing of supplemental discovery responses to August 5, 2024.  [Cheng Decl., para. 12, Ex. F].  This extension could possibly constitute a waiver of any argument that responses were untimely, although the extension was for responses without objections.  [Ex. F].  Defendant also confirms that supplemental responses were served on August 5, 2024, and there was no meet and confer at all concerning those responses.  [Cheng Decl., paras. 13, 14, 15, Ex. G].  The opposition suggests that meet and confer efforts may have avoided the need for this motion.  

The court in the future expects that the parties fully comply with all meet and confer obligations in connection with this litigation. 

Overall, the motion is denied as improperly brought as a motion to compel responses to interrogatories, when verified responses had been served at the time the motion was filed.  The motion is also not supported by a request for further responses, a sufficient meet and confer declaration or a separate statement.  Plaintiff is required to file a motion for further responses following appropriate meet and confer efforts. Hence, such a motion, if necessary, must be accompanied by a proper separate statement. 

Sanctions

With respect to interrogatories, under CCP § 2030.290(c), “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” 

The motion is denied, because it was brought improperly as a motion to compel responses when verified responses had been served before the motion was prepared. Therefore, the motion was not necessary. Hence, the expense of preparing it will not be shifted to defendant.  No sanctions awarded.

Defendant in the opposition also seeks sanctions, as plaintiff  unsuccessfully has brought the motion, arguing that plaintiff has filed three other motions to compel initial responses to discovery which should have been brought as motions for further discovery, and that if sanctions are imposed, plaintiff will realize that the motions should not have been brought as motions for initial responses, and that a good faith meet and confer is necessary for all future discovery disputes.  While the court recognizes that the motion was unsuccessfully brought, and violated several requirements for bring a discovery motion of this nature, the court also recognizes that counsel’s declaration in opposition to the motion concedes that defendant’s counsel “mistakenly failed to confirm the extension” to initially respond to the discovery.  [Cheng Decl., para. 10].  Under these circumstances, there is shared responsibility for the ongoing discovery dispute. No sanctions are awarded to either side.        

RULING:

Motion by Plaintiff Gevorg Bagumyan to Compel Responses by Defendant William Lee to Plaintiff’s Form Interrogatories—General (Set One) is DENIED. 

The motion improperly is brought as a motion to compel responses to interrogatories, when responses had been served. 

Plaintiff in its motion has not relied on statutory authority pertaining to further responses to discovery. Rather, plaintiff improperly has reserved this motion under a reservation for a motion to compel discovery, not further discovery. Contrary to this reservation, the motion seeks further responses following the service of responses and supplemental responses.  A hearing reservation should have been made for a motion to compel further responses to discovery.  Reserving a motion under an improper reservation category manipulates the Court Reservation System and unfairly jumps ahead of other litigants.

Plaintiff is required to file a motion for further responses following appropriate meet and confer efforts. Any such motion, if necessary, must be accompanied by a proper separate statement, and must be reserved under the proper reservation category. 

Monetary sanctions requested by plaintiff are DENIED.

Monetary sanctions requested in the opposition are DENIED. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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