Judge: Richard S. Whitney, Case: 37-2019-00070139-CU-MM-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Medical Malpractice Discovery Hearing 37-2019-00070139-CU-MM-CTL JACOBS VS SHARP HEALTHCARE [E-FILE] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT SHARP-REES STEALY MEDICAL GROUP, INC.'S MOTION FOR ORDER COMPELLING VERIFIED RESPONSES FROM PLAINTIFF VALORI JACOBS TO DISCOVERY is DENIED.

Failure to file an opposition to the motion indicates Plaintiff's acquiescence that the motion is meritorious.

(L.R. 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious']; See California Rules of Court, Rule 8.54(c).) Plaintiff does not dispute that she failed to serve verified Responses to Form Interrogatories (Set One), Special Interrogatories (Set One) and Requests for Production of Documents (Set One). Instead, Plaintiff served objections only. While Defendant SHARP-REES STEALY MEDICAL GROUP, INC. ('Defendant') is correct that '[u]nsworn responses are tantamount to no responses at all,', that applies to substantive responses, not objections.

(Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Plaintiff is not required to provide verified responses where the responses exclusively contain objections. (See Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657.) 'The party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections.' (Code Civ. Proc., § 2031.250(a).) Appleton did not address CCP section 2031.250(a) or a situation where the only responses provided were objections.

'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 demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.' (Code Civ. Proc., § 2031.310(c).) CCP section 2031.310(c) is not triggered until verified or supplemental verified responses are served. As Plaintiff did not serve verified responses, but objections only, CCP section 2031.310(c) has not been triggered yet. However, as Plaintiff did not waive her right to object, given the timely serving of objections, Defendant must address the merits of Plaintiff's objections.

Defendant did not file a motion to compel further responses. It appears Defendant believed that it did not need to file a separate statement because the unverified responses were tantamount to no response at all. As discussed above, Defendant is mistaken. A party may serve objections without verifying the responses as they are legal assertions, not factual representations. (Code Civ. Proc., § 2031.250(a); see Food 4 Less, supra, 40 Cal.App.4th at 657.) California Rules of Court, Rule 3.1345 requires that a separate statement be filed with a motion to compel further responses. The Court has discretion to deny a motion to compel based on the failure to file a required separate statement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892-894.) Defendant has not addressed the merits of Plaintiff's objections. The Court exercises its discretion to deny the motion based on a failure to file a separate statement that Calendar No.: Event ID:  TENTATIVE RULINGS

3012760  73 CASE NUMBER: CASE TITLE:  JACOBS VS SHARP HEALTHCARE [E-FILE]  37-2019-00070139-CU-MM-CTL addresses the merits of the asserted objections.

Defendant should have met and conferred with Plaintiff regarding the validity of the objections. If Plaintiff failed to provide supplemental responses to those requests where there are invalid objections, then Defendant could have properly filed a motion to compel further responses. Such motion requires a separate statement. The motion is denied. No sanctions are awarded.

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