Charles Sotude-Garibaldi vs Sheridan Force et al
Case No: 18CV05360
Hearing Date: Fri Aug 02, 2019 9:30

Nature of Proceedings: Motion to Compel

TENTATIVE RULING: The motion of defendant to compel further responses to special interrogatories, form interrogatories, and demand for production of documents is denied as untimely.

BACKGROUND:

Plaintiff Charles Sotude-Garibaldi rented a room from decedent Shirley Force (“Ms. Force”), starting in approximately 1993 until Ms. Force’s death in 2018. Following Ms. Force’s death, plaintiff filed suit against defendants Sheridan Force, Trustee of The Force Trust dated April 21, 1998, and The Force Trust dated April 21, 1998, claiming that he was not Ms. Force’s tenant but instead her caretaker. Plaintiff seeks wages and penalties in excess of $200,000.00 for the period covering the four years prior to the filing of the complaint, alleging that he was never paid. Defendants deny the allegations and have cross-complained against plaintiff for alleged elder abuse, fraud, and undue influence. Defendants claim that plaintiff slowly and systematically took advantage of Ms. Force, all the while unemployed, and caused her to pay most, if not all, of his living expenses, including transportation, health insurance, food, and clothing.

On February 20, 2019, defendant Sheridan Force, Trustee of The Force Trust dated April 21, 1998 (“Trust”), served Special Interrogatories, Set One, Form Interrogatories (General), Set One, Form Interrogatories (Employment), Set One, and Request for Production of Documents, Set One, on plaintiff. Plaintiff served his initial responses to the requests on April 9, 2019, and supplemental responses to some, but not all, of the requests on May 21, 2019. Trust contends that plaintiff’s responses to certain of the requests are evasive and in bad faith and now moves to compel further responses. Plaintiff opposes the motion.

ANALYSIS:

The propounding party waives any right to compel a further response to interrogatories “[u]nless 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 propounding party and the responding party have agreed in writing.” Code Civ. Proc. §2030.300, subd. (c). Likewise, the propounding party waives any right to compel a further response to a demand for production of documents “[u]nless 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.” Code Civ. Proc. §2031.310, subd. (c).

Thus, a motion to compel further responses to interrogatories or a document demand must be given within 45 days of the verified response, or any verified supplemental response, or on or before any specific later date to which the parties have agreed. Here, plaintiff served his initial responses to Trust’s discovery on April 9, 2019 (Rothschild Dec., ¶3), but Trust did not file its motion to compel further responses until July 10, 2019, more than 90 days later. On May 20, 2019, following an exchange of meet-and-confer letters, plaintiff stated that he would supplement some, but not all, of his responses. (Rothschild Dec., ¶5.) However, it is unclear from the moving papers which of the discovery responses plaintiff agreed to supplement because Exhibit B, a copy of counsel’s May 20, 2019 correspondence, is not attached to the motion, as indicated. Plaintiff states that he never agreed to supplement his responses to Special Interrogatory Nos. 1-7, 10-13, 38-40, 54, and 71, Form Interrogatory (General) No. 2.6, Form Interrogatory (Employment) No. 210.6, and Request for Production of Documents No. 20, which are the basis of defendant’s motion.

The party moving to compel further responses to discovery has the burden of establishing that the motion is timely. See, Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334. Defendant’s counsel, Ms. Rothschild, states that she submitted the motion for e-filing on June 7, 2019, but on July 8, 2019, following a discussion with plaintiff’s counsel, she learned that the motion was not on file as it had been rejected by the court. (Rothschild Dec., ¶8.) Ms. Rothschild then resubmitted the motion for filing on July 10, 2019, which was untimely. (Ibid.) Ms. Rothschild does not explain why the lack of an e-filing confirmation back on June 7, 2019 did not trigger an inquiry as to the status of the motion to compel, nor has she sought relief under Code of Civil Procedure Section 473, subdivision (b).

Based on the foregoing, Trust’s motion to compel further responses to discovery will be denied.