Case Number: KC070190 Hearing Date: October 17, 2018 Dept: J

Re: Marie Y. Viray, et al v. HSS Investments, LLC, etc., et al. (KC069190)

(1) MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM MATTHEW CABRAL TO SPECIAL INTERROGATORIES, SET THREE; (2) MOTION FOR ORDER COMPELLING FURTHER RESPONSES FROM MARIE VIRAY TO SPECIAL INTERROGATORIES, SET THREE

Moving Party: Defendant HSS Investment Properties, LLC’s

Respondents: Plaintiffs Marie Y. Viray and Matthew Cabral

POS: Moving OK; Opposing OK; Replies OK

This action involves the purchase of residential property located at 2560 North Lomitos Way in Covina (“subject property”). Plaintiffs claim that shortly after they purchased the subject property, they discovered that the subject property had an unpermitted septic system, foundational problems, and various other defects that were undisclosed. The complaint was filed on 4/3/17. The First Amended Complaint (“FAC”), filed 7/7/17, asserts causes of action against Defendants HSS Investment Properties, LLC, Geoffrey & Lee Real Estate dba G&L Real Estate, Jesse Ramos, Tim Ryan Construction, Tim Ryan, Richard J. Roberts dba O A Roberts Co., O A Roberts Co., and Does 1-20 for:

1. Fraud and Deceit

2. Rescission of Contract Based on Fraud and Deceit

3. Rescission of Agency Agreement Based on Fraud and Deceit

4. Negligence

5. Breach of Contract

6. Breach of Contract

The Final Status Conference is set for 3/18/19. A jury trial is set for 3/26/19.

Defendant HSS Investment Properties, LLC (“defendant”) moves the court, per CCP § 2030.300, for an order compelling Plaintiffs Matthew Cabral and Marie Viray to provide further responses to its Special Interrogatories, Set No. Three (i.e., Nos. 1-3 and 5-171).

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (1) An answer containing the information sought to be discovered. (2) An exercise of the party’s option to produce writings. (3) An objection to the particular interrogatory.” CCP § 2030.210(a). “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” CCP § 2030.220(a).

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230[1] is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” CCP § 2030.300(a). “A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP § 2030.300(b). “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 propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” CCP § 2030.300(b)(emphasis added).

At the outset, the court notes that the moving party has failed to demonstrate whether the motion was timely filed. On 11/28/17, defendant mail served its “Special Interrogatories, Set Three” (“subject discovery”) on Plaintiff Cabral. (Ryan Decl., ¶ 4, Exh. A). On 1/2/18, Plaintiff Cabral requested a two-week extension to respond, which was granted. (Motion, 3:6-7). On 1/16/18, Plaintiff Cabral served his verified responses thereto; said responses contained objections and invoked CCP § 2030.210(a)(2). (Ryan Decl., ¶ 5, Exh. B). This instant motion, however, was not filed until 6/6/18. Although defendant’s counsel Michael Ryan (“Ryan”) attaches 1/31/18 and 5/16/18 meet and confer letters as Exhibits “C”-“E” to his declaration, he fails to demonstrate whether any other written communications took place between counsel in the interim. Also, while Ryan’s 5/16/18 letter (Exhibit “E”) states, in part, that he “ha[s] until June 6, 2018 to file motions to compel further responses,” he does not provide the court with any further information regarding when this purported extension of time to file this motion was made, or that plaintiffs’ counsel agreed thereto in writing.

The motions, then, are denied for failure to provide adequate proof of timeliness.

[1] This provision states, “[i]f the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.”