Robin Ketchum v. Ho Cheng CASE NO. 113CV247504
DATE: 27 June May 2014 TIME: 9:00 LINE NUMBER: 12
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 5 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 27 June 2014, the motion of Defendant Budget Rent A Car System, Inc. (“Budget”), for motion to compel Plaintiff Robin Ketchum (“Plaintiff”) to response to form interrogatories, set one, and request for production of documents, set one, was argued and submitted.

Plaintiff did not file formal opposition to the motion.

I. Statement of Facts

This is an action to compel Plaintiff to respond to form interrogatories and produce documents. Plaintiff was involved in a vehicular accident with Defendant Ho Cheng (“Cheng”) on June 10, 2011, on southbound Highway 101, in Santa Clara, California. Plaintiff claims that she suffered wage loss, property damage, hospital and medical expenses, general damage, and loss of earning capacity.

II. Discovery Dispute

On 01 November 2013, Budget served Form Interrogatories and Requests for Production of Documents, Sets One, on Ms. Ketchum.

On 09 December 2013, Defendant gave Plaintiff an extension to serve responses to all written discovery until 20 December 2013.

On 19 December 2013, Defendant gave Plaintiff another extension to serve responses to all written discovery until 27 December 2013.

On 27 December 2013, Defendant gave Plaintiff another extension to serve responses to all written discovery until 04 January 2014.

On 07 January 2014, Defendant received a telephone call from Plaintiff’s counsel advising they were having difficulties locating Plaintiff and requested another week extension, which Defendant granted.

Defendant Budget Rent a Car filed this motion on 21 May 2014 after no responses were received.

III. Analysis

A. Interrogatories

The response is due within 30 days from the date the interrogatories were served. Code Civ. Proc. § 2030.260(a). The response time can be extended for service by mail, overnight delivery or fax. Code Civ. Proc. § 1013. On motion of the movinging party, the court may shorten the time for response. Conversely, on the motion of the responding party, the court may extend the time. Code Civ. Proc. § 2030.260(a).

B. Requests for Production of Documents

A CCP § 2031.010 demand may be used to obtain inspection of “documents,” tangible things or land in the possession, custody or control of another party. Code Civ. Proc. § 2031.010(a). Inspection is limited to matters within the permissible scope of discovery (“relevant to subject matter”) and not protected by privilege, work product, right of privacy, etc. Code Civ. Proc. § 2031.010(a).

Under the scope of discovery, “documents” means a writing as defined in Code Civ. Proc. § 2016.020(c), which includes handwriting, typewriting, printing, photographs, Photostats, photocopies, transmissions by fax and email, “and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the matter in which the record has been stored.” “Tangible thing” can be inspected, photographed and subject to test or sampling, including physical evidence such as handwriting, exemplars, fingerprints, and written statements. Code Civ. Proc. § 2031.010(c). Tangible thing interpretation excludes a dead body out of respect of the deceased. Holm v. Superior Court, 187 Cal. App. 3d 1241 (1986).

Electronically stored information on any type of electronic device may be subject to inspection, including hard drive, disks, backup tapes, thumb drives, laptops, cellphones, personal data assistants (PDAs), etc. (See RS Creative, Inc. v. Creative Cotton, 75 Cal. App. 4th 486 (1999); TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443, 448 (2002)).

C, Motion to Compel Responses to Discovery Requests

To prevail on its motion, a party needs to show is that the discovery requests were properly served, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.)

To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show that the responding party was properly served with the discovery request or demand to produce, that the deadline to respond has passed, and that the responding party did not timely respond to the discovery request or demand to produce. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290 (a) (interrogatories); § 2031.040; § 2031.260(a); § 2031.300 (a). To establish that a party fails to serve a timely response for a request for admission, the moving party must show that the responding party’s

Moreover, if a party to whom interrogatories, document production requests, and request for admissions are directed fails to serve timely responses, that party waives any right to object to the requests, including ones based on privilege or the protection of attorney work product. (CCP §§ 2030.290(a), 2031.300(a); 2033.280(a ).)

The Court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) the party has subsequently served a response that is in substantial compliance; and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) (“Weil & Brown”) at ¶¶8:1483-8:1488, 8:1136.) The Respondent is required to make such a request for relief from waiver of objections by a properly noticed motion, and the Court cannot entertain a request made in an opposition to a motion. (See Code Civ. Proc., § 2030.290, subd. (a ).)

D. Conclusion

Here, Budget has provided proof of service for the inspection demands. The deadline for Plaintiff to respond has lapsed and Plaintiff has not timely responded to any of Budget’s discovery requests. On multiple instances, Plaintiff requested and was granted extension of compliance deadline, but failed to respond afterwards. No extension was requested after the January 7, 2014 phone call from Plaintiff attorney.

Accordingly, the motion of Defendant Budget Rent A Car System, Inc. (“Budget”), for motion to compel Plaintiff Robin Ketchum (“Plaintiff”) to response to form interrogatories, set one, and request for production of documents, set one, is GRANTED. Plaintiff is ordered to produce code-compliant responses without objections within 20 days of the date of the mailing of this Order.

Order

The motion of Defendant Budget Rent A Car System, Inc. (“Budget”), for motion to compel Plaintiff Robin Ketchum (“Plaintiff”) to response to form interrogatories, set one, and request for production of documents, set one, is GRANTED. Plaintiff is ordered to produce code-compliant responses without objections within 20 days of the date of the mailing of this Order.