Case Number: 18STLC11918 Hearing Date: November 21, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

MEKAELA STEPHENS,

Plaintiff(s),

vs.

IVONNE GUZMAN, ET AL.,

Defendant(s).

CASE NO: 18STLC11918

[TENTATIVE] ORDER

Dept. 3

1:30 p.m.

November 21, 2019

1. History of Discovery Motion

Plaintiff filed this motion to compel further responses on 7/15/19, setting it for hearing on 9/12/19. On 9/05/19, Plaintiff filed a substantive reply to Defendant’s opposition to the motion; the Court does not, however, have any opposition in its file. On 9/06/19, Defendant filed a sur-reply to Plaintiff’s reply. On 9/12/19, the Court continued the hearing to require the parties to participate in an IDC.

On 10/24/19, the Court heard an IDC. The Court indicated Defendant’s responses were not code-compliant and ordered her to serve code-compliant responses by 11/07/19. The Court continued the hearing on this motion to 11/21/19. As of 11/18/19, no party has filed any additional briefing concerning the status of the discovery responses.

2. Is the Motion Timely?

The parties discuss a procedural issue in the reply and sur-reply papers (and apparently in the opposition, which is missing from the court file). Defendant contends the motion was not timely filed or served. Defendant signed the responses at issue on 5/17/19. There is no proof of service of the responses. Plaintiff contends Defendant served responses on 5/30/19; however, in reply, Plaintiff states she “received” the responses on 5/30/19, not that they were served that day; thus, the responses have to have been served sometime between 5/17/19 and 5/30/19, but the Court does not have evidence showing exactly when they were served. Plaintiff filed and served this motion on 7/15/19.

As noted above, Defendant argues the motion was not filed within 45 days of service of responses, such that the Court lacks jurisdiction to hear or rule on the motion. When seeking to compel further responses, a notice of motion to compel must be served within 45 days after verified responses, or any verified supplemental responses, were served (extended under CCP §§1010.6(a)(4), 1013, if served by mail, overnight delivery, fax or electronically), unless the parties agree in writing to extend the time. CCP §2030.300(c). Delaying the motion beyond the 45-day time limit waives the right to compel a further response to the interrogatories. CCP § 2030.300(c); see Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.

This is a frustrating and difficult issue. The Court does not have evidence showing WHEN or HOW Defendant served her responses. Without that evidence, the Court cannot meaningfully determine whether the motion was timely filed. Plaintiff, however, has the burden to show that the motion was timely served, and the Court has no jurisdiction to rule on a motion if it is not timely filed. See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409-1410, holding that the statute is jurisdictional.

The Court asks the parties to be prepared to address the issue of whether the motion was timely when they appear at the hearing on this motion. If Defendant served the responses with a proof of service, she must bring the proof of service. If either party has other evidence showing how and when the responses were served, such as the envelope in which they were received, the party must bring that evidence to the hearing.

The Court notes that Plaintiff argues the time to file the motion fell on Sunday, 7/14/19, such that service filing on Monday, 7/15/19 was proper under CCP §2016.060. The Court has reviewed §2016.060, and finds that it does so provide. Thus, if Defendant served her responses on or after 5/30/19, then the motion was proper. If Defendant served her responses earlier than 5/30/19 (extended if served by any method other than personal service), then the motion is not timely.

3. Merits

As the Court noted at the informal discovery conference, the responses served are not code-complaint. The Court has reviewed the separate statement filed with the moving papers, and affirms its prior finding that the responses are patently not code-compliant; notably, a legal discussion of what is required in the responses can be found in the text of the separate statement. Thus, to the extent the motion is timely, and to the extent Defendant has not yet served supplemental responses, the motion to compel further responses is granted. Defendant must serve further responses, in compliance with the Code of Civil Procedure, within twenty days.

4. Sanctions

Plaintiff did not reserve a hearing date for an informal discovery conference prior to filing the motion. The purpose of the IDC requirement is to assist parties in resolving discovery disputes without the need for law and motion practice. To the extent Defendant has served code-compliant responses since the parties’ participation in the IDC, the Court will not impose sanctions.

If Defendant has not done so, the Court will impose sanctions. The Court finds the number of hours spent in connection with the motion is reasonable, but reduces Plaintiff’s attorney’s billing rate from $725/hour to $200/hour, which is more in keeping with what attorneys in the personal injury hub court system typically charge. If Defendant has not served supplemental responses, the Court will award the requested nine hours of attorney time at the rate of $200/hour, or $1800 in sanctions.

Because substantive issues need to be addressed at the hearing on this motion, the Court asks that Plaintiff’s attorney and Defendant personally appear at the hearing (not through CourtCall). If the parties “submit on the tentative” or fail to appear, the motion will be denied in its entirety.

Plaintiff is ordered to give notice.