2013-00141776-CL-CL

Resurgence Capital LLC vs. Dennis Westman

Nature of Proceeding: Motion to Compel 1) Form 2) Production 3) Genuiness of Documents 4)

Filed By: Searles, Nathan A.

Plaintiff’s motion to compel defendant’s responses to form interrogatories and requests
for production of documents is GRANTED in part, while the motion to deem admitted
those matters specified in plaintiff’s requests for admissions to defendant is DENIED,
as follows.

The Court notes that plaintiff paid only one $60 filing fee in connection with this motion,
although it seeks at least three different orders (i.e., responses to form interrogatories,
responses to requests for production and an order deeming admitted). A separate
filing fee is required for each. (Gov. Code §70617(f).) No later than 11/15/2013,
plaintiff shall make payment of an additional $120 to the Court Clerk.

Moving counsel is admonished because the moving papers fail to comply with CRC
Rules 2.111(3) and 3.1110(b)(3)-(4).
Although the notice of motion provided notice of the Court’s tentative ruling system as
required by Local Rule 1.06(D), the notice does not comply with that rule. Moving
counsel is directed to review the Local Rules, effective 1/1/2013.

Opposing counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3)-(4).

The present motion was served on 10/2/2013. According to the opposition,
defendant’s responses to interrogatories and requests for production of documents
were served on 10/7/2013. Since Code of Civil Procedure §1005.5 specifically
provides that a motion is deemed made at the time it is served and filed and since this
occurred prior to defendant serving his discovery responses, the present motion is not
moot within the meaning of §1005.5.

The Court notes that the discovery responses served by defendant on 10/7/2013
included various objections despite all objections being waived by virtue of defendant’s
failure to timely respond to plaintiff’s discovery requests.

In light of the foregoing, defendant shall provide verified responses without objections
to plaintiff’s form interrogatories and requests for production of documents no later
than 11/22/2013. (If defendant desires to assert any objections to plaintiff’s discovery
requests, he should promptly file and serve a noticed motion seeking the appropriate
relief.)

To the extent plaintiff’s motion to compel also seeks to compel the actual production of
documents in response to the requests for production, the motion is premature. A
motion to compel compliance pursuant to Code of Civil Procedure §2031.320(a) is
appropriate only where a responding party has agreed to produce documents but then
fails to permit inspection consistent with that response. Here, the motion indicates that
at the time it was served the responding party had not yet agreed to produce any
responsive documents and therefore, the responding party cannot yet be compelled to
comply with his written response.

Plaintiff’s request for monetary sanctions is denied since the motion to compel is
effectively unopposed.

Moving counsel is advised that where discovery responses (as opposed to further
responses) are sought, the discovery requests need not be included with the moving
papers. Proof of the discovery’s service is all that is required.

Plaintiff’s motion to deem admitted those matters specified in plaintiff’s requests for
admissions to defendant is DENIED since the Court finds that defendant has already
served “before the hearing on the motion” proposed responses that appear to be in
substantial compliance with Code of Civil Procedure §2033.220. (Code Civ. Proc.
§2033.280(c).)

If plaintiff believes defendant’s responses to the requests for admissions are in some
manner deficient, a motion to compel further responses may be filed but only after
completing the requisite good faith meet-and-confer efforts. (See Townsend v.
Superior Court (1998) 61 Cal.App.4th 1431, 1438 [meet-and-confer process is not
intended to be some perfunctory formality but rather it “requires…a serious effort at
negotiation and informal resolution”].) Both counsel are expected to exhaust all
reasonable meet-and-confer efforts before filing any discovery motion and are advised
that any unnecessary discovery motions and/or oppositions filed in the future may be
subject to the imposition of sanctions.

Plaintiff is not awarded mandatory monetary sanctions under Code of Civil Procedure
§2033.280(c) because such sanctions were not requested pursuant to this statute.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)