Case Number: EC067546 Hearing Date: June 08, 2018 Dept: A

Justis v Hodges

MOTION TO COMPEL FURTHER RESPONSES

Calendar: 12

Case No: EC067546

Hearing Date: 6/8/18

Action Filed: 10/31/17

Trial: Not set (CMC 7/27/18)

MP:

Plaintiffs Aaron Justis and Buds & Roses Collective, Inc.

RP:

Defendant Michael Hodges

ALLEGATIONS IN COMPLAINT:

Plaintiffs Aaron Justis and Buds & Roses Collective, Inc. (“B&R”) commenced this action against Defendant Michael Hodges. Justis and Hodges were the only directors of B&R, a medical cannabis dispensary. Justis and B&R allege that Hodges breached his fiduciary duty to B&R and treated B&R as his personal bank account, misappropriated funds, and wasted corporate resources. The complaint, filed October 31, 2017, alleges causes of action for: (1) removal of director; (2) breach of fiduciary duty; and (3) intentional interference with prospective economic relations.

RELIEF REQUESTED:

Plaintiff moves to compel further responses to: (1) special interrogatories (“SROG”); (2) request for production of documents (“RPD”); and (3) requests for admission (“RFA”).

ANALYSIS:

Single Motion for Multiple Requests for Discovery

Plaintiffs filed a single motion to compel further responses to SROG, RPD, and RFA.

The motion to compel further responses to written discovery is improper because Plaintiffs seek several types of discovery orders in one motion, i.e., an order under CCP §2030.300 to compel further responses to interrogatories, an order under CCP §2031.310 to compel further responses to requests for production, and an order under CCP §2033.290 to compel further responses to requests for admission. There is no legal authority allowing the requested relief to be sought in a single motion.

As Plaintiffs have not filed separate motions nor paid the additional filing fees on the motions, this is grounds to deny the entire motion.

Timeliness

Motions to compel further responses must be brought within 45 days of receiving the verified or supplemental verified responses, or as otherwise agreed upon between the parties in writing. (CCP §§2030.300(c) [SROG], 2031.310(c) [RPD], 2033.290(c).) An additional 5 days is added where the response is served by mail. (See CCP §1013.) The 45-day limitation to move to compel further responses as to interrogatories and document requests is jurisdictional, and courts are without authority to rule on untimely motions to compel except just to deny them. (See, e.g., Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; and Sperber v. Robinson (1994) 26 Cal.App.4th 736, 746 [later motion did not relate back to earlier motion taken off calendar].) The deadline cannot be circumvented by propounding the same discovery again. (Prof. Career Colleges etc. v. Superior Court (1989) 207 Cal.App.3d 490, 492.)

Plaintiff served the SROG, RPD, and RFA on Defendant on January 7, 2018. (Scher Decl., ¶¶2-4.) On February 16, 2018, Defendant provided responses to the discovery at issue. (Id., ¶¶5-7.) On March 28, 2018, defense counsel states that he gave Plaitniff an additional 30 days on the 45-day cutoff period to file this motion. (Hodge Decl., ¶7.) Plaintiff’s counsel sent a meet and confer letter on May 1, 2018 to defense counsel, and defense counsel responded that he was willing to continue the meet and confer process. (Scher Decl., ¶8.) However, it does not appear that efforts were thereafter made or that supplemental responses were provided by Defendant.

Because Defendant provided responses on February 16, 2018, Plaintiff had until April 2, 2018 to file this motion. Adding the extension of 30 days, Plaintiff should have filed this motion on May 2, 2018, or latest May 7, 2018 if factoring an additional 5 days for mailing of the Defendant’s responses. As the motion was filed on May 10, 2018, the motion is untimely.

Thus, the motion would also be denied on the basis of untimeliness.

RULING:

Deny the motion to compel further responses to the SROG, RPD, and RFA.

Deny requests for sanctions.