Case Name: Alberto Valdez v. Milly Roy, et al.
Case No.: 19CV345742

This matter arises from a motor vehicle accident that occurred on June 14, 2017 in San Jose, California. The original and still operative form Complaint filed by Plaintiff Alberto Valdez (“Plaintiff”) on April 4, 2019 states claims for “Motor Vehicle,” General Negligence and Negligence per se (which is not a separate cause of action) against Defendant Milly Roy (“Defendant”) and Does 1-10.

Currently before the Court are Plaintiff’s separately filed (but largely identical) motions to compel further responses to: 1) Requests for Admission (“RFAs”) nos. 1 and 29, and; 2) Form Interrogatories 15.1 and 16.10. Both motions were filed on September 23, 2019 and both are opposed by Defendant.

Background of the Discovery Dispute
On May 17, 2019 (approximately six weeks after the Complaint was filed) Plaintiff propounded the discovery at issue. (See exhibit B to both declarations of Plaintiff Counsel Alex Valenzuela [“Plaintiff Decls.”] and exhibit B to both declarations of Defense Counsel Deborah Bjonerud [“Def. Decls.”].)

On July 11, 2019 Defendant served her initial verified responses to the RFAs and Form Interrogatories via regular mail. (See exhibit C to Plaintiff Decls. and Def. Decls.) Accordingly, absent the granting of one or more extensions, the deadline to file motions to compel further responses from Defendant would have been August 30, 2019.

On August 9, 2019 Plaintiff’s Counsel sent Defense Counsel a meet and confer letter discussing the initial responses and requesting that Defendant provide further responses by August 16, 2019. (See exhibit D to Plaintiff Decls. and Def. Decls.)

On August 29, 2019 Defense Counsel sent a responding letter, offering to amend form interrogatories 15.1 and 16.10 “after sufficient discovery has occurred in this matter, including but not limited to the depositions of both parties,” and also offering to amend RFAs 1 and 29. The letter closed by stating “[d]ue to defense counsel’s vacation from Sept. 3 through Sept. 16, it is requested that amendments to discovery indicated in the foregoing letter be permitted to take place by October 26, 2019. The defense stipulates that plaintiff’s time to file a motion to compel is extended by the concurrent amount of time,” 14 days. (See exhibit E to Plaintiff Decls. and Def. Decls.)

On September 19, 2019 Plaintiff Counsel sent another letter, asserting that “[a]s of today, my deadline to file motions to compel further response is September 23, 2019,” and demanding a response “by end of day September 20, 2019 or an agreement to extend the motion to compel deadline in writing.” The letter rejected Defendant’s proposal of amended responses by October 26, thereby eliminating the 14 day extension conditioned on Plaintiff’s acceptance of that offer. The letter further stated that Plaintiff offered to accept amended responses to the discovery at issue in these motions (form interrogatories 15.1 & 16.10 and RFAs 1 & 29) by October 1, 2019 if Plaintiff was granted an extension of the motion to compel deadline to October 14, 2019. (See exhibit F to Plaintiff Decls. and Def. Decls.)

Both motions to compel were filed on September 23, 2019. On November 14, 2019 Defendant served verified amended responses to form interrogatories 15.1 & 16.10 and RFAs 1 & 29 on Plaintiff via express mail. (See exhibit G to Def. Decls.) On November 18, 2019 Defense Counsel contacted Plaintiff’s counsel to inquire if Plaintiff would take the motions off calendar in light of the amended responses. Plaintiff’s counsel declined, stating “[g]iven we expended time and resources to file these two motion[s], we are still entitled to sanctions. If you are willing to agree to pay our sanctions, we will deduct the time to prepare a reply and appearance, and take the motion[s] off calendar.” (See exhibit H to Def. Decls.)

Timeliness
In the Oppositions Defendant argues that both motions should be denied as untimely because no extensions were granted after Plaintiff’s refusal of the offer to accept amended responses by October 26.

Code of Civil Procedure (“CCP”) §2030.300, subdivision (c) provides with respect to motion to compel further responses to interrogatories: “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 interrogatories.” Section 2033.290, subdivision (c) applies to such motions for requests for admissions.

In Sexton v. Super. Ct. (1997) 58 Cal.App.4th 1403, the court of appeal concluded the 45-day time limitation for motions to compel was “jurisdictional” in the sense that it renders the court without authority to rule on motions to compel other than to deny them. (Id. at p. 1410; see also Vidal Sassoon, Inc. v. Super. Ct. (1983) 147 Cal.App.3d 681, 685.) “The Legislature has explicitly stated that unless a party moves to compel a further response within 45 days of the unsatisfactory response, he waives any right to compel a further response.” (Professional Career Colleges Magna Institute, Inc. v. Super. Ct. (1989) 207 Cal.App.3d 490, 494.) The Court lacks jurisdiction to rule on a motion to compel further responses brought after the deadline provided by law. (Sexton, supra, 58 Cal.App.4th at p. 1410; Vidal Sassoon, supra, 147 Cal.App.3d at p. 685.) While the 45-day limitation is not necessarily “jurisdictional” in the fundamental sense, it is at least “quasi-jurisdictional” in the sense that it renders the Court without authority to rule on untimely motions to compel other than to deny them. (Sexton, supra, 58 Cal.App.4th at p. 1410; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745-746 [“The failure to make this motion within the specified period constitutes a waiver of any right to compel a further discovery response.”]; New Albertsons, Inc. v. Super. Ct. (2008) 168 Cal.App.4th 1403, 1427 [same]; Professional Career Colleges, supra, 207 Cal.App.3d at p. 494 [same].)

Defendant is correct that the August 29, 2019 letter can only be reasonably interpreted as conditioning the offered 14 day extension of time to file a motion to compel on Plaintiff’s agreement to accept amended responses as late as October 26, 2019. Therefore Plaintiff’s refusal to agree to that proposal eliminated the 14 day extension proposed in that letter. Plaintiff’s original moving papers do not explain how the motions filed on September 23, 2019 (based on discovery responses served by mail on July 11, 2019) are timely. However, Plaintiff’s Counsel has submitted evidence, exhibits G-K to the declarations submitted with the reply to each motion frilled December 3, 2019, indicating that extensions of time (not discussed in the original moving papers) were in fact granted. Exhibits G-I indicate that on August 16, 2019 Plaintiff was granted an extension of time to file a motion to compel up to September 13, 2019 in return for Defendant getting more time to respond to Plaintiff Counsel’s meet and confer letter. Exhibits J and K indicate that on September 9, 2019 (when he knew Defense Counsel was away on vacation) Plaintiff Counsel sought a further extension of time (purportedly “to avoid filing a motion”) to September 23, 2019 from Defense Counsel’s paralegal. The request was granted by the paralegal that same day.

Given this evidence the Court cannot find that these motions are untimely.

Mootness
As noted above, Defendant served amended responses to the form interrogatories and RFAs targeted by these motions on November 14, 2019 by express mail.

When amended discovery responses are served after a motion to compel is filed, the Court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) Through this discretion, the Court might deny the motion to compel as moot and just impose sanctions, or examine the supplemental and/or amended responses to determine if they are code-compliant. (Id. at p. 409.)

Here, the Court declines to consider Defendant’s amended responses and both motions to compel are DENIED as MOOT. The only remaining issue to be considered is the requested sanctions

Monetary Sanctions
Plaintiff requests monetary sanctions in connection with both motions.

Where sanctions are sought in conjunction with a motion to compel the notice of motion must name all parties and attorneys against whom sanctions are sought, specify the type of sanction sought, and cite the authority for such sanctions. (See CCP §2023.040.) Here the notice of motion to compel further responses to RFAs 1 and 29 only cites “CCP sections 2023.010 et seq. and 2033.010 et seq.” in support of a request for $4,460 in momentary sanctions and the notice of motion to compel further responses to form interrogatories 15.1 and 16.10 only cites to “CCP Sections 20323.010 et seq. and 2030.010” in support of a request for an additional $3,910.00 in monetary sanctions (for a grand total of $8,370 or a little over $2,000 per amended response). This does not comply with CCP §2023.040 as the specific authority for the type of sanctions sought is not cited.

In any event the request for monetary sanctions is DENIED as the Court finds that under the circumstances the impositions of such sanctions would be unjust. Plaintiff knew well before these motions were filed (by no later than Defense Counsel’s August 29, 2019 meet and confer letter) that Defendant intended to provide amended responses to the discovery at issue. Thus it cannot be determined that the amended responses were a direct result of these motions being filed such that monetary sanctions might be justified. It certainly has not been established that Defendant “caused Plaintiff to waste valuable resources” as claimed by Plaintiff in the replies.

Defendant’s request for monetary sanctions in the amount of $285.40 (apparently for each opposition) is also DENIED as unjust under the circumstances.