Case Number: BC708016 Hearing Date: October 24, 2019 Dept: 4A

Motion to Compel Further Responses to Request for Production of Documents, Set One

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On May 29, 2018, Plaintiff Gonzalo Omar Lopez Aguilera (“Plaintiff”) filed a complaint against Defendants Timothy J. Sauer, individually and as co-trustee of TCT Living Trust; Constance Sauer, as co-trustee of TCT Living Trust; and TCT Living Trust (collectively, “Defendants”) asserting causes of action for negligence, negligence per se, and premises liability. Plaintiff alleges Defendants are liable for injuries he sustained when the fell in the stairwell on April 22, 2018.

On May 7, 2019, Plaintiff filed a motion to compel further responses to Request for Production of Documents, Set One (“RFP One”) from Defendant Timothy J. Sauer (“Sauer”) pursuant to CCP section 2030.300 and 2031.310.

Trial is set for April 2, 2020.

PARTY’S REQUEST

Plaintiff requests an order compelling Defendant Sauer to serve verified responses to Plaintiff’s RFP One, Nos. 43, 45, 53-56, and 57 within 20 days of the date of this hearing.

LEGAL STANDARD

“Parties must participate in an [Informal Discovery Conference] before a Motion to Compel Further Responses to Discovery will be heard unless the moving party submits evidence, by way of declaration, that the opposing party has failed or refused to participate in an [Informal Discovery Conference.] (LA Superior Court Standing Order; April 16, 2018, ¶ 5 (emphasis in original).) A Motion to Compel Further is the appropriate motion when the responding party objects to the propounded discovery. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788.)

Before bringing a motion to compel further responses to any discovery request, the moving party is required to make efforts to meet and confer in good faith and must submit a declaration attesting to those efforts. (Code Civ. Proc., §§ 2031.310(b)(2).) “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.” (Code Civ. Proc. § 2016.040.) However, a discovery motion need not be denied automatically based upon the reason that the moving parties failed to meet and confer in good faith. (See Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 434.)

The notice of motion must be served within 45 days after service of the responses in question (extended if served by mail, overnight delivery, or fax (see Code Civ. Proc., § 1013)); otherwise, the demanding party waives the right to compel any further response. (Code Civ. Proc., § 2031.310(c); see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45-day time limit is mandatory and jurisdictional. (Sexton v. Sup.Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410.) However, the parties can also agree in writing on a specific later date by which to file the motion to compel. (Code Civ. Proc., § 2031.310(c).)

Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement providing all information necessary to understand each discovery request and all the responses at issue. (California Rules of Court, Rule 3.1345(a), (c).)

A motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc. § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the moving party to show both: [¶] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [¶] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) [Citations.] [¶] The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” (Edmon & Karnow, California Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1495.6.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions.” (Edmon & Karnow, supra, at ¶ 8:1496.)

DISCUSSION

On October 16, 2018, Plaintiff propounded upon Sauer RFP One. (Tan Decl. ¶ 2.) On December 21, 2018, Sauer served responses to Plaintiff’s request by mail. (Id. at ¶ 3.) On January 28, 2019, Plaintiff’s counsel sent defense counsel a meet-and-confer letter. (Id. at ¶ 4, Exh. 3.) Plaintiff reserved an IDC on August 12, 2019. On August 12, 2019, an IDC was not held as there is no appearance by the Defendant. (Minute Order, 08/12/19.) Plaintiff filed this motion on May 7, 2019.

Even with the time extension for the mail service of the responses, Plaintiff’s motion is untimely and Plaintiff’s right to compel a further response is waived. Plaintiff had 45 days from service of the verified response or, in the alternative, on or before any specific later date to which the demanding party and the responding party have agreed in writing. (Code Civ. Proc., § 2031.310(c).) Based on the December 21, 2018 date when Sauer responded to the document requests, Plaintiff was required to file his motion to compel by February 4, 2019. Plaintiff has not indicated nor provided a writing stating a later date was agreed to by parties. Thus, the Court finds Plaintiff has waived his right to compel further responses. The Court cannot consider the instant motion except to deny it. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (“is only ‘jurisdictional’ in the sense that it renders the court without authority to rule on motions to compel other than to deny them.”).)

The motion is DENIED.

Plaintiff is ordered to give notice of this ruling.