Pappakostas v. State of California, Dept. Of Trans., et al. CASE NO: 113CV254101
DATE: 27 June May 2014 TIME: 9:00 LINE NUMBER: 18
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 Thursday 26 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 27 June 2014, the motion of Plaintiffs, Liam Pappakostas, a minor, and Mark Pappakostas, to Compel Discovery responses to Plaintiffs’ Special Interrogatories, Set One, and Request for Admissions, Set One, Nos. 1, 4-7 from Defendant, State of California, Department of Transportation, was argued and submitted.

On 17 June 2014, Defendants filed formal opposition to the motion.

I. Statement of Facts

On or about 16 December 2012 Plaintiffs suffered severe injuries while in a moving automobile on California State Route 87. Plaintiff filed a complaint on 03 October 2013 against several parties, including the State of California, Department of Transportation; Trinity Highway Products; Trinity Highway Industries; and Does 1 through 50, inclusive, for damages in a tort action for personal injury, negligence, products liability, dangerous condition of public property and government tort liability over an allegedly dangerous placement of a guardrail system on a Route 87.

II. Discovery Dispute

This dispute is between the Plaintiffs and one of the Defendants in the action: the State of California, Department of Transportation (hereinto referred to as “Defendant” in this order).

On 21 November 2013, the Plaintiffs served Defendant with (1) Form Interrogatories, Set One; (2) Special Interrogatories, Set One; (3)Request for Admissions, Set One; and (4) Request for Product of Documents, Set One. The next day, they served Defendant with (5) Request for Production of Documents, Set Two. The deadlines for these dates were 26 and 27 December 2013, respectively.

On or about 24 December 2013, attorney for the Defendant, Mark Lizarraga, requested and received an extension to 31 January 2014 to serve the discovery responses to the Plaintiffs.

On 04 February 2014, Plaintiffs claim to have received unverified and incomplete responses from the Defendant to (1) Form Interrogatories, Set One; (2) Special Interrogatories, Set One; (3)Request for Admissions, Set One; (4) Request for Product of Documents, Set One; and (5) Request for Production of Documents (Decl Smith 3). Mr. Abramson, attorney for the Plaintiffs, called Mr. Lizarraga the next day and left a voice message seeking to discuss the responses. Mr. Lizarraga returned the call with a voice message the day after that. According to Mr. Smith’s Declaration in support of the motion, Mr. Lizarraga did not have enough time to answer all the interrogatories and Request for admissions, and Mr. Lizarraga requested to meet and confer about the objections and supplement the requested responses. Further, Mr. Lizarraga believed that he did not have to provide the responsive documents due to the Plaintiffs’ prior request made pursuant to the Public Records Act. Mr. Smith, attorney for the Plaintiffs, then wrote a letter on 10 February 2014 in response to Mr. Lizarraga’s voice mail where Mr. Smith addressed some of the inadequacies of the responses and warned Mr. Lizarraga that he would move to compel responses if needed.

Phone conversations resumed between the two parties and on 06 and 10 March 2014, the Plaintiff’s attorney received more discovery responses, but not all as expected. Two months passed without any further supplemental or verified responses received by the Plaintiffs, which brings this motion now before this Court.

In the reply papers, Plaintiffs attach as Exhibit 5 the verifications of the Defendant’s responses to special interrogatories, set one, and responses to requests for admissions, set one. These were mailed to Plaintiffs in a letter dated 16 June 2014, a little over three weeks after this motion was filed. The verifications are not attached to copies of the responses.

The Plaintiffs seek a motion to compel complete, verified responses to Plaintiffs’ Special Interrogatories, Set One, and Request for Admissions, Set One, Nos. 1, 4-7, within 10 days of the Court’s Order on this motion.

III. Analysis

A. Defendant’s Opposition Was Not Timely

Opposition to a motion must be filed no later than nine court days before the hearing. Code Civ. Proc. §1005(b) Time is counted not counting the first day, but including the last possible day. Code Civ. Proc. §12. When calculating back from a hearing date, time is counted backwards from the hearing date, but does not count the hearing date. Code Civ. Proc. §12c(a). The Court may consider a late filed paper or not, at its own discretion. Cal. Rules of Court, rule 3.1300.

The date for the hearing in this matter is 27 June 2014. The weekend days 21 and 22 June are not counted, because those are not court days. Nine court days before 27 June 2014 is 16 June 2014. Defendant filed its opposition to this motion on 17 June 2014. Therefore, the opposition was not timely filed.

Because the opposition was not timely filed, the Court will not consider Defendant’s opposition in its analysis.

B. Plaintiffs Filed a Motion to Compel Responses when they should have filed a Motion to Compel Further Responses

As an initial matter, Plaintiff fails to cite any statutory authority forming the basis upon which this Court can compel a party to respond. See e.g., Code Civ. Proc. §2030.290(b ). On this basis alone, the Court may deny the motion. See Cal. Rules of Court, rule 3.1113(b);

When a party submits unverified responses where a verification is required, to interrogatories, this is in effect the same as no response at all. See e.g., Garber v. Eskandarian (2d Dist. 2007) 150 Cal. App.4th 813, 817 n.4. Similarly, an unverified response, where a verification is required, to Requests for Admission also constitutes no response at all. Appleton v. Superior Ct. (3d. Dist. 1988) 206 Cal.App.3d 632, 636.

However, a response that includes objections, if signed by a party’s attorney, will constitute a response, in spite of the lack of verification. Food 4 Less Supermkts., Inc. v. Superior Ct. (2d. Dist 1995) 40 Cal.Appl.4th 651, 657.

Plaintiffs seek to compel responses, presumably under Code of Civil Procedure sections 2030.290(b) and 2033.280(a)-(c), which grant the Court the authority to compel responses to interrogatories and deem requests for admissions to be admitted. Speaking to the requests for admission first, Plaintiffs seek responses to its requests for admission numbers 1, and 4 through 7. Defendant responded to each of these requests for admission with an objection , with the document signed by Defendant’s counsel. These constitute responses, and therefore a motion to compel responses to these requests for admission is improper.

Next, Plaintiffs ask the Court to compel responses to its interrogatories. As with the requests for admission, the interrogatories substantially contained objections. Therefore, Defendant did respond, just likely not in the way Plaintiffs would have preferred. A motion to compel responses is not appropriate.

Plaintiffs’ motion to compel responses to Requests for Admission, Set One numbered 1 and 4-7 is DENIED WITHOUT PREJUDICE to filing a motion to compel further responses.

Plaintiffs’ motion to compel responses to Interrogatories, Set One is DENIED WITHOUT PREJUDICE to filing a motion to compel further responses.

IV. Order

Plaintiffs’ motion to compel responses to Requests for Admission, Set One numbered 1 and 4-7 is DENIED WITHOUT PREJUDICE to filing a motion to compel further responses.

Plaintiffs’ motion to compel responses to Interrogatories, Set One is DENIED WITHOUT PREJUDICE to filing a motion to compel further responses. This Court will not offer any advice as to the timeliness of such a motion.

Additionally, this Court will not comment on whether the untimeliness of the responses results in the waiver of objections or claims of privilege (Code Civ. Proc. §§ 2030.290 & 2033.280.)