Judge Serena R. Murillo, Case Number: 22STCV22459, Date: 2023-09-12 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV22459, Date: 2023-09-12 Tentative Ruling

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Case Number: 22STCV22459 Hearing Date: September 25, 2023 Dept: 31

TENTATIVE

Plaintiff’s motion to Compel Further Responses to Requests for Production, Set One, Nos. 5, 7, and 10 is DENIED as untimely. Defendants’ request for sanctions is DENIED. Plaintiff’s request for certification of appeal pursuant to Code of Civil Procedure section 166.1 is DENIED without prejudice.

Legal Standard

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under CCP section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)

The propounding party must submit a declaration under Code of Civ. Proc. §2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve each issue raised by the motion. (Code Civ. Proc., §2030.300, subd. (b).)

“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.”¿ (CCP §2030.300(c).) “[T]he time limitations set forth…[are] mandatory and [when] not met, the trial court's order is in excess of its jurisdiction.”¿ (Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.)

Discussion

Plaintiff moves to compel Defendants’ further responses to Requests for Production, Set One, Nos. 5, 7, and 10.

Defendant argues Plaintiff’s Motion is not timely. Absent an agreement by the parties, Defendant argues, Plaintiff had 45 days to pursue a motion to compel against Defendants, after the initial responses were provided on or about December 6, 2022. (Chao Decl., Exh. B.)

In reply, Plaintiff argues that Defendant’s counsel agreed in writing to extend the deadline as to all of Plaintiff’s motions to compel to two weeks after the IDC. (Medvei Decl., Exh. 1.) In defense counsel’s June 1, 2023 email, he states:

REGARDING DEFENDANTS’ RESPONSES: attached is a copy of the May 10, 2023 email that includes the verified supplemental responses provided by the defendants to Plaintiff’s Request for Production of Documents, Set One... We believe that these responses are fully compliant with the Court’s February 15, 2023 Minute Order. To the extent that you believe that the responses to item nos. 3, 4 and 6 are deficient, we will agree to provide you an additional two weeks after the IDC to move to compel further responses. (Id.)

The Court previously concluded in the last motion to compel further that the parties’ agreement to extend the deadline to file a motion to compel further was only for Request Nos. 3, 4 and 6.

Plaintiff addresses this in his reply, and argues that Defendant’s statement was conditional: “To the extent that you believe that the responses to item nos. 3, 4 and 6 are deficient, we will agree to provide you an additional two weeks after the IDC to move to compel further responses.” (Id., Exh. 1 p. 2.) However, Plaintiff argues this statement is not limiting the extension to only those responses, it is a conditional statement, i.e. if Plaintiff’s counsel believes that the responses to Nos. 3, 4 and 6 are deficient, then the motions to compel will be extended to two weeks after the IDC. Plaintiff’s counsel did believe those responses were deficient and thus the extension, as to all motions, as requested by Plaintiff’s counsel, was granted—this extension was confirmed by Plaintiff’s counsel shortly after and Defendant’s counsel never made a correction. (Id., Exh. 1 p. 1 (“This will confirm that Plaintiff shall have two weeks after the IDC for its motions to compel.”).)

The Court finds the motion is untimely. As stated before, the agreement to extend the deadline to move to compel further pertains to Plaintiff’s Request for Production Nos. 3, 4, and 6, which were at issue at the IDC and Judge Orozco recommended that Defendant respond to them, which Defendant did in the email provided above. The motion at hand asks for further responses to Request for Production Nos. 5, 7, and 10, but those requests were not at issue in the minute order and Defendant did not provide responses to those requests in the email cited above. As such, there is no agreement to extend the deadline to move to compel further responses to the discovery at issue. While Plaintiff appears to have understood Defendant’s response to mean all discovery, nowhere does Defendant state the extension to file the motion was for all motions. Without an express statement, the Court cannot make that conclusion.

Plaintiff also argues that Defendant’s prior counsel also agreed to extend the deadline to two weeks after the IDC. (Id., Exh. 2.) In the January 2023 email with Defendants’ former counsel, Plaintiff’s counsel writes: “I propose that plaintiff's motion to compel deadlines for all discovery he has propounded on your clients be extended to 30 days after an IDC can be held,” to which former defense counsel responds, “We are agreeable to extending your motion to compel deadline to two weeks after the IDC.” (Id.)

As to the agreement with former counsel, the IDC was held on February 15, 2023. These motions were filed on July 12, 2023. Although a second IDC was held on July 12, 2023, the parties’ agreement does not say anything about a second IDC, and Plaintiff has not provided any insight as to this discrepancy.

Therefore, the motion is DENIED as untimely.

Next, Defendant seeks sanctions against Plaintiff. However, Defendants did not request sanctions in their notice of opposition, and thus, the Court cannot grant this request. (See CCP section 2023.040.)

Lastly, in the reply, Plaintiff requests certification of appeal pursuant to Code of Civil Procedure section 166.1, which provides in pertinent part:

“Upon the written request of any party or his or her counsel, or at the judge's discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation . . . .” (Code Civ. Proc., § 166.1.)

However, this request was made for the first time in the reply and Defendants have not had an opportunity to respond. The Court notes in the last motion to compel further, Defendant filed an objection to the certification and thus, it would be improper to consider this request without allowing Defendant to brief the issue.

Conclusion

Based on the foregoing, Plaintiff’s motion to compel further is DENIED as untimely. Defendants’ request for sanctions is DENIED. Plaintiff’s request for certification of appeal pursuant to Code of Civil Procedure section 166.1 is DENIED without prejudice.

Moving party to give notice.