Judge Serena R. Murillo, Case 22STCV28184 2023-04-19 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV28184, Date: 2023-04-19 Tentative Ruling

Case Number: 22STCV28184 Hearing Date: April 19, 2023 Dept: 29

TENTATIVE

Petitioner Allstate Northbrook Company’s Motions to Compel Responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents are TAKEN OFF CALENDAR.

Legal Standard

Compel Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc., § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905–906.)

Compel RPDs

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc. § 2031.300(b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc. § 2031.300(a).) Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

Sanctions

Sanctions are mandatory in connection with a motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290(c), 2031.300(c))

Under CCP section 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc. § 2023.010.)

Discussion

On August 29, 2021, Petitioner Allstate filed a petition to open an underinsured motorist case between Petitioner and Claimant Robyn Parks. Since this is a petition, Petitioner was required to serve it on Claimant in the manner required by CCP section 1290.4. (See Porter v. Golden Eagle Ins. Co. (1996) 43 Cal.App.4th 1282, 1289 (stating the statutory scheme for arbitration provided by CCP sections 1280 et seq. encompasses arbitration compelled by statute, and specifically, arbitration under Insurance Code section 11580.2).) Under CCP section 1290.4, a copy of the petition and a written notice of the time and place of the hearing and any other papers upon which the petition is based must be served in the manner provided in the arbitration agreement for the service of such petition and notice. (Code Civ. Proc., § 1290.4(a).) If the arbitration agreement does not provide the manner for service, then CCP section 1290.4 requires that service be made in the manner provided by law for the service of summons in an action. (Id., § 1290.4(b).)

Petitioner filed this petition under Insurance Code section 11580.2, which does not provide any manner for service. Since Insurance Code section 11580.2 does not identify any manner for service, Petitioner was required by CCP section 1290.4(b) to serve the petition and the discovery motion on Claimant in the manner provided for the service of summons. After Claimant has been served in the manner provided for the service of summons, then CCP section 1290.4 permits Petitioner to serve any further motions by mail on Claimant, as set forth in CCP sections 1010 to 1020. (Code Civ. Proc., § 1290.4(c).)

Here, Petitioner attached a proof of service to the petition indicating the petition was served on Claimant by electronic transmission on August 26, 2022. Further, the motions at issue indicate the same. However, service by electronic transmission is not a permitted method of serving a summons. Petitioner has thus failed to demonstrate that it served the petition and the discovery motion on Claimant in the manner of a summons. As Petitioner has not served the petition on Claimant in the manner provided by law for the service of summons, the Court cannot hear this motion because the Court does not have jurisdiction over Claimant at this time.

Accordingly, Petitioner Allstate’s Motions to Compel Responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents are TAKEN OFF CALENDAR.