2013-00156439-CU-PN

Bernice Hogan vs. Terry D. Wheeler

Nature of Proceeding: Motion to Compel Production of Documents, Set One (Mark Alan

Filed By: Brody, Jennifer A.

Defendant’s Motions to Compel “Further Responses and Document Production” Set One and Set Two from Plaintiff Mark Hogan, Set One to Teri Hogan Lucas, and Set Two to Bernice Hogan are DENIED. Since the grounds for the Court’s ruling are identical with regard to all the Motions identified above, the Court consolidates its rulings into this single Minute Order.

The instant motion pertains to discovery that was originally served on or about June 27, 2016. Between the various Plaintiffs in this case, Defendants apparently served nearly 1,300 discovery requests on Plaintiffs at that time. In accordance with an agreement between the Parties, Plaintiffs served their objections and responses on September 30, 2016, and also provided approximately 500 pages of documents, which added to the 12,150 page Plaintiffs had already produced.

The original deadline for Defendants to move to compel further response to the requests was November 19, 2016, pursuant to Code of Civil Procedure section 2031.310. Pursuant to various agreements between the parties, this deadline was postponed until January 20, 2017. With that deadline nearing, Defendants again demanded further or supplemental responses to all discovery requests within four days; Plaintiffs informed Defendants they were unable to meet that deadline and offered to again extend the deadline for the motions to compel. Defendants declined the offer and filed 18 motions to compel on February 1, 2017.

Thereafter, the Parties participated in several attempts to meet and confer regarding the requests and the responses. Plaintiffs served 18 sets of amended discovery responses on June 12, 2017, and, approximately one month later, produced another 658 pages of documents. On August 17, 2017, Defendants took their motions to compel off the Court’s calendar.

Following Plaintiffs’ service of the amended responses, Defendant requested and received six extensions to file a motion to compel, effectively extending the statutory

deadline until November 17, 2017. On November 3, 2017, Defendants attempted to meet and confer via written correspondence regarding Plaintiffs’ amended responses to interrogatories. On November 13, 2017, Defendants sent a meet and confer letter regarding Plaintiffs’ amended responses to request for production of documents. Pursuant to agreement, the motion to compel deadline was against extended to January 19, 2018. Thereafter, pursuant to ongoing attempts to meet and confer, the deadlines to file motions to compel were extended to February 23, 2018.

On February 14, 2018, Plaintiffs’ counsel received an email from defense counsel demanding Plaintiffs provide supplemental discovery responses by close of business that day or Defendants would file motions to compel. The parties ultimately agreed to further discuss whatever outstanding issues remained regarding the discovery and extended the deadline to file motions to compel to March 16, 2018. According to Plaintiffs, on March 23, 2018, Plaintiffs informed Defendants they would provide supplemental responses to special interrogatories, but did not agree to supplement their responses to the request for production of documents, nor provide any further extensions of time for Defendants to file a motion to compel with respect to the RPD requests.

Defendants file the instant motions pertaining to the requests for production of documents on May 22, 2018.

Code of Civil Procedure section 2031.310 permits a party to move to in receipt of a response to a demand for inspection of documents to move to compel a further response to the demand if that demanding party concludes that the statement of compliance of demand is incomplete; a representation of inability to comply is inadequate, incomplete or evasive; or an objection is without merit. (Code Civ. Proc. § 2031.310(a)(1), (2), (3).) Here, Defendants have moved to compel further responses to the document requests pursuant to section 2031.310 on the grounds that the responses Plaintiffs provided are “non-responsive, inadequate and evasive … and contain unmeritorious objections.” (See Defs. Notice of Motion at pp. 1, 4.)

While a party may move to compel further responses under section 2031.310, any such motion must be filed within 45 days of service of the verified response, or any supplemental response, or “on or before any specific later date to which the demanding party and the responding party have agreed in writing.” (Code Civ. Proc. § 2031.310(c).) If the motion is not filed by one of the foregoing dates, the demanding party “waives any right to compel a further response to the demand.” (Id.) Failure to file the motion to compel within 45 days is jurisdictional, and renders the court without authority to rule on the motion other than to deny it. Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.

Plaintiff contends that the motion to compel is untimely, having been made well in excess of the 45 day time limits mandated by section 2031.310, because the last date to which Plaintiffs agreed was March 16, 2018. Defendant argues that the Parties have an agreement that the deadlines for Defendants to file any motion to compel runs from the date that the responses were either served or received. In either case, the Court concludes that the instant motion is untimely and fails to comply with section 2031.310(c). First, the last responses that Plaintiffs served are dated June 2017, and thus the deadline has clearly run unless the parties agreed,in writing, to a date certain thereafter to which the motion filing deadline would be extended. The Court has reviewed the various documents and finds no express date certain as to this document

request for filing a motion to compel. While Plaintiffs reference a final deadline of April 20, 2018, that date was based on only an oral agreement and failed to comply with section 2031.310(c). Thus, the last expressly written deadline was indeed March 16, 2018. Defendants filed their motion on May 24, 2018, and thus are time-barred from seeking any relief in this respect.

For the foregoing reasons, the Motions to Compel Further Responses to Request for Production of Documents (Set One and Set Two) are DENIED.