Case Name: Venessa Diaz a.k.a. Venessa Perales v Elias Perales
Case Number: 1-13-CV257136

I. Discovery Dispute

On November 3, 2014, Plaintiff served a supplemental discovery request asking Defendant to “update all of his discovery responses, if his discovery responses to discovery requests…have changed since Defendant…has served these discovery responses. If Defendant’s…discovery responses have not changed, Plaintiff…requests Defendant..to so state.” The Request also asks Defendant to provide any additional documents, not previously produced, responsive to a previous document request. (Exhibit A)

On November 19, 2014, Defendant responded to the supplemental discovery request, set one by stating:
“PLEASE TAKE NOTICE that Defendant…hereby responds to plaintiff’s Supplemental Discovery Request, Set One. Defendant responds to this request for production with the understanding that discovery has not yet been completed. Defendant responds to this request for production in good faith and with the understanding that additional and further information may subsequently be discovered and that, therefore, this production is responded to without prejudice to petitioner’s rights to amend or modify said responses.
RESPONSES
Defendant has made a diligent search and reasonable inquiry to locate any additional documents responsive to this demand. Defendant is unable to comply as no such documents are in his possession. Defendant believes that additional documents responsive to this demand is in Plaintiff’s possession, custody or control.”

On November 20, 2014, Defendant verified this response which was served by mail on November 24, 2014. (Exhibit B)

Plaintiff’s counsel emailed defendant’s counsel on December 1st and 10th 2014 essentially asking him to confirm that Defendant’s responses to all previous discovery had not changed. (Exhibit C) Defendant’s counsel did not respond to this email. (Declaration of Plaintiff’s Counsel, paragraph 5)

On January 9, 2015, Plaintiff served this Motion to Compel Defendant to Produce Further Responses to Supplemental Discovery Request, Set One and for Sanctions. The Motion is timely as the last set of verified responses were served by mail on November 24, 2014. (41 days) (Code of Civil Procedure Section 1013)

Defendant submitted a belated opposition to this Motion..

II. Legal Analysis

The instant motion appears to seek further responses to form and special interrogatories previously served as well as requests for admission previously served. This very discovery was the subject of an earlier Motion to Compel which resulted in an order by Judge Manoukian on September 2, 2014.

Although plaintiff is entitled to seek supplemental interrogatories pursuant to CCP Section 2030.070, there is no similar provision for supplemental requests for admissions.

In fact, the party who initially responded to the admissions can only withdraw or amend their answers by leave of Court. CCP 2033.300 Parties are not allowed to automatically update their responses upon learning additional information.

Plaintiff cites Burch v. Gombos (2000) 82 Cal. App.4th 352 in support of his argument he can seek supplemental requests for admissions. However, Burch is not on point and is factually distinguishable from this case. The requests for admissions in Burch asked for information known at the time the request was made. At trial, the party who responded to the request for admission introduced evidence that strayed from the initial request for admission response. Appellant argued respondent had a duty to update his responses once he discovered additional information. The Appellate Court rejected that argument finding that the admission was limited to respondent’s knowledge as of the time the admission was made; it was not a promise respondent would not locate evidence in the future. Respondent had no duty to update his responses.

No statute or case authorizes a party to compel supplemental responses to requests for admissions. This Court will not require same.

Plaintiff is entitled to supplemental interrogatory responses. Defense counsel argued that his supplemental response covered all of the requests. However, that is not apparent from his response which is only directed to the document requests, not the interrogatories. Defendant made no affirmative statement assuring plaintiff he does not have any updated/different responses to the interrogatories to which he earlier responded. The Court therefore orders defendant to submit code compliant supplemental interrogatory responses within 15 days of the date of this order.
As plaintiff only partially succeeded in this motion, plaintiff will be entitled to monetary sanctions against defendant and his counsel in the amount of $300 payable within 30 days of the date of this order. CCP Section 2030.300 (d).