Case Number: BC486729    Hearing Date: August 05, 2014    Dept: 34

(1) Motion to compel further responses to requests for admissions (set two);
(2) Motion to compel further responses to form interrogatories (set three)

Moving Party: Plaintiff Scott Mossman (“plaintiff”)

Resp. Party: Defendant Kiewit Infrastructure West Co. (“Kiewit”)

Plaintiff’s motions are DENIED.

BACKGROUND:

Plaintiff commenced this action on 6/15/12. Plaintiff filed a first amended complaint on 4/2/13 against defendants for general negligence (two causes of action). Plaintiff alleges that in June 2011 he was walking on a sidewalk that, without warning, narrowed and eventually ended. (FAC ¶¶ 16-17.) Because the sidewalk had ended, plaintiff attempted to cross Sepulveda Blvd in order to access the sidewalk on the other side. (Id., ¶ 17.) As he attempted to cross the street, defendant Arden struck plaintiff with his vehicle. (Id., ¶ 18.) As a result of the incident, plaintiff sustained catastrophic injuries and currently requires 24-hour medical and personal care. (Id., ¶¶ 20-21.)

ANALYSIS:

Plaintiff seeks to compel further responses to request for admissions numbers 46, 47, 48, 54, 55, 56, 60, 81-89, 90, 91, 92, 94, 95, and 101-104. Plaintiff also seeks to compel further responses to form interrogatory number 17.1.

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., §§ 2033.290(b), 2030.300(b).) “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.) Plaintiff’s counsel sent a meet and confer letter to Kiewit’s counsel on 6/18/14 – 47 days after Kiewit’s responses were served and 5 days before filing the instant motion. (See Idemundia Decl., ¶ 6, Exhs. D, E.) The letter demanded supplemental responses by 6/20/14. (Id., Exh. E.) The next day, Kiewit’s counsel sent a response which pointed out that plaintiff’s counsel waited until the “final hour” to attempt to meet and confer and therefore was not acting in good faith. (See id., Exh. F.) Plaintiff’s counsel sent a response to this letter in a further attempt to meet and confer. (See id., Exh. G.) Plaintiff’s late attempt to meet and confer suggests that plaintiff was aware that his belated attempt to meet and confer was not in good faith.

The Motion is Untimely and Hence Must Be Denied

This motion must be served within 45 days after service of the response 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 to the Code of Civil Procedure § 2031.010 demand. “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.” (Code Civ. Proc., §§ 2030.300(c), 2033.290(c), 2016.050; 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.) “The 45-day limitation is . . . “jurisdictional” in the sense that it renders the court without authority to rule on motions to compel other than to deny them.” (Id.)

Kiewit served its responses to the requests for admissions and form interrogatories by mail on 5/2/14. (See Idemundia Decl., Exhs. B, D.) Plaintiff served and filed the instant motion on 6/23/14 – 52 days after service of the responses. Therefore, the motions are not timely and must be denied for this reason alone.

Even If the Court Were Allowed to Consider the Motions on Their Merits, They Would Be Denied

Even if the Court were to consider the motion to compel further responses to requests for admissions, it would still be denied. Kiewit has provided supplemental responses to most of the requests, which renders the motion moot as to these requests. (See Lawler Decl., Exh. E.) To the extent that plaintiff believes these supplemental responses are insufficient, plaintiff must bring a timely motion to compel further responses after engaging in a good faith effort to meet and confer.

As for the requests to which supplemental responses were not provided (i.e., numbers 55, 82, 85, 88, 90, 91, 92, 101, and 102), Kiewit is correct that these requests are improper. Request numbers 55, 90, 91, and 92 ask Kiewit to provide admissions as to “FACTORS,” a term which is defined to include sixteen possible factors that contributed to plaintiff’s injuries. (See Idemundia Decl., Exh. A, pp. 3-4, 6, 9-10.) “No request for admission shall contain subparts, or a compound, conjunctive, or disjunctive request unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., § 2033.060(f).) Because the term “FACTORS” is defined to include several separate factors, the requests in numbers 55 and 90-92 essentially and improperly contain 16 sub-parts. Therefore, Kiewit’s objections that these requests are compound, conjunctive, and disjunctive are well taken.

In request numbers 82, 85, and 88, plaintiff asks whether Kiewit “had the power” to install a fence, a barricade, or a temporary railing on the subject property. (See Idemundia Decl., Exh. A, pp. 8, 9.) In the requests, plaintiff does not explain what is meant by “had the power.” It is unclear if plaintiff is asking if Kiewit had the legal authority to install the structures or if Kiewit had the physical ability to do so. Likewise, request numbers 101 and 102 include undefined phrases such as “multiple, unbalanced lanes” and “blocked site line.” It is unclear exactly what is meant by these phrases or whether an expert opinion is needed to respond. Therefore, Kiewit’s objections that the phrases “had the power,” “multiple, unbalanced lanes,” and “blocked site line” are vague and ambiguous are well taken.

Similarly, the motion to compel further responses to form interrogatory number 17.1 would be denied even if it were considered on the merits. Interrogatory number 17.1 asks Kiewit to provide certain information as to responses to the requests for admissions that are not unqualified admissions. Kiewit has provided supplemental responses to the form interrogatory as to all requests except for numbers 51, 52, 55, 82, 90, 91, 92, and 102. The instant motion is therefore moot as to all but these requests. For the reasons discussed above, Kiewit’s objections as to request for admission numbers 55, 82, 90, 91, 92, and 102 are well taken, and thus the objections as to these portions of form interrogatory number 17.1 are also well taken. As for numbers 51 and 52, Kiewit’s initial responses sufficiently provided the information requested in the interrogatory. (See Idemundia Decl., Exh. D, pp. 8-9.) It is not clear to the court what further information defendant could supply after it has denied that it, e.g., installed the pavers.

Thus, even if the Court were to consider on the merits the motions to compel further responses, the motions would be denied.