2017-00211638-CU-IC

James Caplis vs. Mercury Casualty Company

Nature of Proceeding: Motion to Be Relieved of Waiver of Right to Compel Production

Filed By: Gebhardt, Robert

Defendants’ “motion to be relieved of waiver of right to compel production of documents [sic], pursuant to CCP Sec. 473 and 2031 et seq. [sic]” is DENIED, as follows.

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06, and does not provide the correct address for Dept. 53/54. Moving counsel is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the court’s tentative ruling procedure and the manner to request a

hearing, along with the correct address for Dept. 53/54. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing in person or by telephone.

The notice of motion does not comply with Code of Civil Procedure §1010 or CRC Rule 3.1110(a).

Moving counsel failed to comply with CRC Rule 3.1110(b)(3)-(4).

The Gebhardt Declaration in support of this motion does not conform to the requirements of Code of Civil Procedure §2015.5.

Factual Background

This is an action against an insurer and its attorneys for bad faith, breach of fiduciary duty and concealment.

Moving Papers. Defendants and plaintiff agreed to extensions of deadlines to file motions to compel relative to a variety of discovery previously propounded by each side. However, defendants’ counsel misread plaintiff’s email which actually set the former’s deadline as 1/19/2018 but which defendants mistakenly calendared for 2/2/2018 (i.e., the deadline for plaintiff to seek further responses).

Defendants now seek relief from their failure to timely file a motion to compel plaintiff’s “production of documents [sic],” although this is presumably referring to a motion to compel further responses to defendants’ requests for production since there is no deadline for seeking to compel either initial responses or the production of documents in compliance with a party’s agreement to produce other than 15th day before the initial trial date. Defendants seek this relief pursuant to Code of Civil Procedure §2031 [sic] (although the moving papers effectively concede §2031.010 et seq. does not contain an express provision for the relief sought here) as well as Code of Civil Procedure §473, contending the mis-calendaring error is the type of relief permitted under §473 especially since this remedial statute is to be construed liberally.

Opposition. Plaintiff opposes, arguing that Code of Civil Procedure §2031.310(c) explicitly provides that the failure to move to compel further responses within 45 days or a later date agreed to by the parties in writing constitutes a waiver of the right to compel further responses and a party’s right to seek additional time to do so by court order was removed with the 1986 amendments, something which Sexton v. Superior Court construed as an expression of the Legislature’s intent to preclude untimely motions [45 day deadline is “mandatory and jurisdictional” and trial court has no authority to rule on untimely motions other than to deny them]. The opposition further asserts that Code of Civil Procedure §473 does not provide a basis for relief here but even if it did, defendants have failed to make the showing necessary to justify the relief being sought.

Analysis

There is no genuine dispute that Code of Civil Procedure §2031.310(c) plainly states that a party’s failure to file a motion to compel further responses within 45 days or any subsequent date to which the parties agree in writing effects a waiver of the right to compel further responses or that §2031.010 et seq. provides no express mechanism

for relief from this waiver (nor does §2030.010 et seq. or §2033.010 et seq.)

The court finds defendants’ reliance on Code of Civil Procedure §473 unavailing for several reasons. First, defendants have cited no relevant authority which suggests the broad remedial provisions apply to discovery matters and the court is aware of no authority for such a proposition. Moreover, if relief under §473 were applicable to discovery matters such as untimely motions to compel further responses, a multitude of the specific, carefully-crafted provisions found in the Civil Discovery Act would be rendered largely meaningless because a party could virtually always obtain relief from any missed deadline pursuant to §473(b). However, if the Legislature had intended such relief to be available in discovery matters, there is little doubt it would have so stated and the Legislature’s removal of the pre-1986 right to obtain from the court additional time to seek further responses effectively confirms its intent to limit the time during which further responses may be compelled. For these reasons, this court is not persuaded that §473 is a viable means by which defendants may obtain the relief they seek.

However, even if §473 were applicable to the question presented here, defendants have not shown entitlement to relief here. Subdivision (b) states in pertinent part:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Underline added for emphasis.)

Clearly, no judgment, dismissal, order, or other proceeding has been entered or taken against defendants here and the moving papers fail to identify anything which can be so construed. Accordingly, this court concludes the relief otherwise available under §473(b) is applicable to the facts of the case at bar.

Additionally, subsection (b) provides in pertinent part:

Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, … (Underline added for emphasis.)

Defendants did not include with their present motion a copy of the “other pleading proposed to be filed” and thus, based on the plain language quoted above, this court is without authority to grant the present motion for relief.

Finally, the Gebhardt Declaration filed in support of this motion does not appear to be signed under penalty of perjury in conformity with Code of Civil Procedure §2015.5 and is therefore not competent evidence of the alleged mistake, inadvertence, surprise, or excusable neglect on which the present motion is based.

Conclusion

Since defendants have failed to provide authority demonstrating they are entitled to relief from their waiver to compel further responses from plaintiff, the court must deny the present motion for relief.