Branielle Heddings v. CWPM, Inc., et al.		CASE NO. 113CV258141
DATE: 11 September 2014	TIME: 9:00	LINE NUMBER: 11

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 10 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 11 September 2014, the motion of defendant CWPM, Inc. (“CWPM”) to compel further responses to special interrogatories, set one (“SI”) and request for production of documents, set one (“RPD”), and for monetary sanctions was argued and submitted. Plaintiff Branielle Heddings (“Heddings”) filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

I.       Statement of Facts

This is an action for the breach of the warranty of habitability. In her complaint, Heddings alleges the following: In January 2007, Heddings leased the residential property located at 15520 El Gato Lane, Los Gatos, CA from CWPM, a property management company. (Compl., p. 2:3-5, 14-15.) The property was in substantial disrepair and contained a number of defective conditions, including unsafe and inadequate heating, broken appliances, clogged pipes, and a termite infestation. (Compl., pp. 3:17-18, 5:22-26, 6:1-4, 9:22-24.) Though Heddings made a number of complaints to CWPM concerning the condition of the property, CWPM never made the requested repairs. (Compl., p.11:1-2.)

In her complaint, Heddings asserts seven causes of action against CWPM and the owners of the property for (1) breach of the warranty of habitability, (2) nuisance, (3) negligence, (4) intentional infliction of emotional distress, (5) unfair business practices, (6) tortious breach of the warranty of habitability, and (7) bad faith retention of security deposit.

II.      Discovery Dispute

On 11 April 2014, CWPM served the SI and RPD on Heddings. Heddings served on CWPM unverified responses for both sets of discovery requests on 29 May 2014. The responses to the SI and RPD consisted of both objections and substantive responses.

On 4 June 2014, CWPM’s counsel sent a meet and confer letter to Heddings’ counsel, indicating that the responses to the SI and RPD were unverified and, as such, all objections to the discovery were waived.

On 10 June 2014, Heddings served verifications for the SI and RPD on CWPM.[2]

On 23 June 2014, CWPM’s counsel sent another meet and confer letter to Heddings’ counsel, stating that CWPM did not receive the verifications to the SI and RPD and, as such, all objections were waived. CWPM’s counsel further stated that the time to file a motion to compel further responses had no yet run as no verifications had been served. Heddings’ counsel sent a meet and confer letter in response on 27 June 2014, in which he indicated that the service of verifications was not required to preserve Heddings’ objections.

Despite a number of further meet and confer efforts, the parties were unable to informally resolve their disputes. Accordingly, on 11 August 2014, CWPM filed this motion to compel further responses to the SI and RPD. Heddings filed her opposition on 28 August 2014. On 4 September 2014, CWPM filed its reply.

III.     Discussion

         A.  Motion to Compel Further Responses to the SI and RPD

CWPM moves to compel further responses to SI Nos. 58-59 and RPD No. 12 on the ground that Heddings’ objections to these responses are without merit. Heddings argues that the motion is untimely and also opposes the motion on substantive grounds.

With respect to the issue of timing, Heddings contends that CWPM’s motion to compel further responses to SI Nos. 58-59 and RPD No. 12 is untimely because it was filed after the 45-day time limit expired.

Code of Civil Procedure sections 2030.300, subdivision (c) and 2031.310, subdivision (c), provide: “Unless notice of this motion is given within 45 days of service of the verified responses, or any other supplemental verified responses, 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 or demand for inspection].” For responses served by mail within California, 5 calendar days are added to the time to file the motion. (See Code Civ. Proc., § 1013, subd. (a).) The court lacks jurisdiction to rule on motions to compel further responses that are filed after the deadline provided by law. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [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.”].)

Here, Heddings served CWPM via U.S. mail with its objection-only responses to SI Nos. 58-59 and RPD No. 12 on 29 May 2014. (See Vanderdrift Decl., Exs. A and B.) Heddings did not serve any supplemental responses to these particular requests. As such, CWPM’s motion to compel further responses to these requests needed to be filed within 45 days, plus 5 for mailing, of 29 May 2014.[3] Thus, CWPM’s deadline to file its motion to compel further responses to SI Nos. 58-59 and RPD No. 12 was 18 July 2014. As CWPM did not file its motion to compel further responses until 11 August 2014, its motion is untimely.

In its reply brief, CWPM argues that it did not bring the present motion during the 45-day period because the parties agreed to indefinitely extend the time to file a motion to compel. In support of this argument, CWPM relies on a 7 July 2014 email, in which Heddings’ counsel stated: “If you feel that you need an extension on a motion, I will be happy to give one.” (Spini Decl., Ex. J.) CWPM’s argument lacks merit.

While parties may agree to extend the 45-day limit to make a motion to compel further responses, they must do so by a written agreement specifying a later date. (See Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c).) Here, the statement of Heddings’ counsel is merely an offer to grant additional time to file a motion to compel further responses. There is no indication that CWPM actually agreed to the offer or that the parties specified a later date in writing. Therefore, Heddings’ offer did not extend the 45-day time limit to file a motion to compel further responses.

Based on the foregoing, CWPM’s motion to compel further responses to SI Nos. 58-59 and RPD No. 12 is DENIED.

         B.  CWPM’s Request for Monetary Sanctions

In its moving papers, CWPM requested monetary sanctions against Heddings and her counsel in the amount of $2,865. In its reply brief, CWPM withdraws its request for monetary sanctions. Accordingly, as the request is no longer at issue, CWPM’s request for monetary sanctions no longer requires a ruling.

IV.   Conclusion and Order

CWPM’s motion to compel further responses to SI Nos. 58-59 and RPD No. 12 is DENIED.

 

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tables extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[2] The practice of serving responses to discovery followed by service of the verification of those responses at a later point in time is a common one.  However, it is not code compliant and counsel follows this practice at his or her peril.

[3] In its meet and confer correspondence, CWPM suggests that the 45-day time limit did not begin to run until the service of the verifications. This contention lacks merit. Code of Civil Procedure sections 2030.300, subdivision (c) and 2031.310, subdivision (c) state that notice of a motion to compel further responses must be given within 45 days of “the service of the verified response, or any supplemental response.” Objections do not need to be verified, and a party may serve a code-compliant, objection-only response without serving a verification. (See Code Civ. Proc., §§ 2030.250, subds. (a), (c), 2031.350, subds. (a),(c); Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657-658 [no verification necessary for portion of discovery response containing objections].) As the responses to SI Nos. 58-59 and RPD No. 12 consisted solely of objections, the 45-day time limit began to run on 29 May 2014, the day these responses were served, not on the day the verifications were served.