Case Name: In re The Jean G. Thomas Trust dated November 20, 2013, as amended on September 30, 2007

Case No.: 1-11-PR-169608

Motion by Petitioner Richard Thomas for Order Compelling Further Response By Respondent Garret A. Thomas to Demand for Inspection and Production of Documents, Set One, and for Sanctions Pursuant to C.C.P. Section 128.5

On February 28, 2014, petitioner served respondent with a Demand for Inspection and Production of Documents, Set Number One (“RPD”). (See ¶1 and Exh. A, Declaration of Candace K. Ladley (“Declaration Ladley”).) On April 8, 2014, respondent served petitioner with a response to the RPD. (See ¶2 and Exh. B, Declaration Ladley.)

Petitioner deemed the response and/or production to be insufficient, and between April 17, 2014 and September 5, 2014, petitioner’s counsel and respondent’s counsel met and conferred in writing and by telephone. (See ¶¶3 – 15 and Exhs. C – M, Declaration Ladley.)

On December 16, 2014, petitioner filed the motion now before the court: a motion to compel a further response to RPD from respondent and a request for sanctions. On February 2, 2015, respondent filed opposition. On February 9, 2015, petitioner filed a reply.

Respondent opposes the motion on the ground that the motion is untimely. “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” (Code Civ. Proc., §2031.310, subd. (c).) A motion to compel further responses to RPDs “must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery or fax or electronically.)” (Weil & Brown, CAL. PRAC. GUIDE: CIVIL PROCEDURE BEFORE TRIAL (The Rutter Group 2014) ¶8:1491, p. 8H-41 citing Code Civ. Proc., §§2031.310, subd. (c), 2016.050; Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.)

Respondent served a verified response on April 8, 2014 by regular mail, thereby extending the deadline for a motion to compel further responses an additional ten calendar days where the place of address is outside of California. (Code Civ. Proc., §1013, subd. (a).) Based on the service of a response on April 8, 2014, petitioner had until Tuesday, June 3, 2014 to file and serve a motion to compel further responses. Petitioner did not file the present motion until December 16, 2014.

In reply, petitioner argues that respondent’s counsel orally waived the deadline to file a motion to compel further responses and petitioner confirmed that waiver in a subsequent letter. (See ¶¶5 – 6 and Exh. A, Declaration Ladley in Reply.) Petitioner admits that there was no agreement to a “specific later date”, but that is exactly section 2031.310(c) requires.

The motion is denied.