Case Number: GC050964    Hearing Date: November 07, 2014    Dept: A

Delacey at Green HOA v Green Street Venture

MOTION TO COMPEL DISCOVERY RESPONSES
MOTION FOR PROTECTIVE ORDER

Calendar: 23
Case No: GC050964
Date: 11/7/14

RELIEF REQUESTED:
1. Plaintiff, Delacey at Green Homeowners Association
Order compelling Defendant to provide verifications for its responses

2. Defendant, Suffolk Construction, Inc.
Protective order extending time for Defendant to provide responses and testimony to Plaintiff’s discovery until December 8, 2014.

DISCUSSION:
This case arises from the Plaintiff’s claim that the Defendants were negligent when they constructed a residential condominium project in Pasadena.

This hearing concerns the Plaintiff’s motion to compel the Defendant to serve verifications for its responses to the Plaintiff’s requests for production and the Defendant’s motion for a protective order that allows it to have additional time to serve responses to the Plaintiff’s discovery.

1. Plaintiff’s Motion to Compel Verifications
The Plaintiff served requests for production on December 6, 2013 (see exhibit 1). The Defendant served unverified responses on January 10, 2014 (see exhibit 2).
Under California law, responses that are not verified are tantamount to no responses. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. Accordingly, the Defendant did not serve responses on January 10, 2014 because they were not verified.

The Plaintiff’s counsel, Mitchell Leverett, provides facts in his declaration to demonstrate that the Plaintiff requested that the Defendant provide verifications. When the Defendant did not provide a verification after nine months, the Plaintiff filed the pending motion.

However, the Plaintiff failed to seek relief under the correct code sections. In its notice, the Plaintiff sought an order compelling responses under CCP section 2030.290. This section applies to interrogatories. Under CCP section 1010, a notice of motion must state the grounds upon which the motion is made. CRC rule 3.1110(a) requires the notice of motion to state in its opening paragraph the nature of the order sought and the grounds for issuance of the order. Only the grounds specified in the notice of motion may be considered by the trial court. Taliaferro v. Riddle(1959) 167 Cal.App.2d 567, 570. Since the Plaintiff sought relief under CCP section 2030.290, which is a code section referring to interrogatories, it did not state grounds for relief with regards to requests for production.
Further, the Plaintiff then sought relief in its memorandum under CCP section 2031.320. This section authorizes the Court to order a party to produce documents in compliance with a response to a request for production. Since the Defendant did not verify its responses, it has not served a response with which the Court can order it to comply by producing documents.
Finally, the Plaintiff filed a separate statement under CRC rule 3.1345 in which it discusses the Defendant’s responses and seeks an order compelling a further response. If the Plaintiff were seeking an order compelling further responses, then the Plaintiff should have sought relief under CCP section 2031.310, which authorizes the Court to order a party to serve a further response. However, the Plaintiff did not seek any relief under CCP section 2031.310. Further, the Plaintiff does not demonstrate that the motion is timely under CCP section 2031.310 or that it complied with the requirements to state specific facts in a declaration showing good cause for the production of the documents sought in each request for production.

The Plaintiff is seeking an order compelling a response to requests for production. Since the Plaintiff argues that the Defendant’s responses are tantamount to no response, the Plaintiff should have sought relief under CCP section 2031.300, which authorizes the Court to order a party to serve responses when it has not responded to requests for production. The Plaintiff did not seek relief under this code section.

Finally, the opposition papers indicate that the Defendant will arrange for the production of the documents at issue. The Court will advise the Defendant to serve verifications for his responses promptly to resolve this issue.

Therefore, the Court will deny the Plaintiff’s motion.

2. Defendant’s Motion for a Protective Order
The Defendant requested a protective order that extends the time for the Defendant to provided verified responses and testimony to the following discovery propounded by the Plaintiff:

1) notice of deposition of person most knowledgeable and request for production of documents;
2) request for production of documents, set one;
3) requests for admission, set one;
4) form interrogatories-construction litigation, set one; and
5) form interrogatories-general, set one.

The Defendant requests that the time be extended to December 8, 2014.

Under CCP section 2025.420, 2030.090, 2031.060, and 2033.080, the Court is authorized to issue a protective order that sets a new date for a deposition and that extends the time to respond to discovery. The code sections require the party to demonstrate that the protective order is necessary to protect the party from undue burden and expense. The moving party bears the burden of proof to establish good cause for their requested relief. Emerson Elec. Co. v. Superior Court (1997) 16 Cal. 4th 1101, 1110.
The Defendant’s counsel, Scott Sterling, offers facts to demonstrate the following:

1) the matter is appropriate for transfer to the Complex Civil Litigation Department; (n.b.: the Complex Court has declined this matter.)
2) the Defendant’s new counsel has been attempting to obtain the information to respond to the Plaintiff’s discovery, but has discovered that the job file is in 99 boxes at Iron Mountain and that additional time is needed to obtain these documents because they cannot be accessed before August 15, 2014;
3) the Defendant’s counsel needs additional time to respond to the Plaintiff’s discovery in order to review the documents in the 99 boxes and serve proper responses to the written discovery, which includes drafting responses to 411 separate requests for admission and the accompanying responses needed for form interrogatory 17.1; and
4) the Defendant’s counsel has attempted to meet and confer with Plaintiff’s counsel, but Plaintiff’s counsel has refused to extend the time past August 15, 2014.

The Plaintiff’s opposition offers no grounds to find that an extension of the time to serve responses would cause any prejudice. Instead, the Plaintiff argues that the Defendant should be compelled to serve responses because it has failed to serve timely responses. In addition, the Plaintiff requests an award of $3,900 in monetary sanctions.

The Defendant’s motion shows that it needs additional time to respond to the Plaintiff’s discovery based on the complexity of this case, the difficulty that the Defendant is experience in attempting to obtain documents necessary to respond to discovery, and the burden of drafting responses to the substantial amount of discovery served by the Plaintiff. Further, the Defendant’s motion shows that a protective order is necessary to protect the Defendant from undue burden and expense because the Plaintiff has refused to extend the time to serve responses.

Therefore, the Court will grant the Defendant’s motion because it has shown that there is good cause for a protective order that sets a new date for the deposition of its person most qualified and that extends the time for it to serve responses to the Plaintiff’s written discovery.

The defendant requested that the Court set December 8, 2014 as the date by which it must serve verified responses and provide the testimony of its person most qualified. This will provide the Defendant with one month after the hearing on its motion to serve the verified responses and produce its person most qualified.

RULING:
1. Plaintiff, Delacey at Green Homeowners Association
DENY motion for discovery order regarding Defendant’s requests for production

2. Defendant, Suffolk Construction, Inc.
GRANT motion and issue protective order extending time for Defendant to provide responses and testimony to Plaintiff’s discovery until December 8, 2014. Request for sanctions denied.