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Court of Appeal:
Serving Unverified Responses Doesn’t Trigger Time Limit for Making Motion to Compel
Opinion Resolves Discovery Issue of First Impression
By a MetNews Staff Writer
The 45-day period within which to seek an order compelling answers or further answers to interrogatories does not begin running upon the service of unverified responses because the governing statute refers only to verified responses, Div. Three of the Fourth District Court of Appeal has held.
It doesn’t matter, the opinion says, if a motion brought after that time period deals only with objections to what is being asked.
Unverified responses by Steve Frye and George St. George, plaintiffs in an employment discrimination action, were served on Feb. 5, 2021; their verifications were electronically provided on March 17; the notice of motion to compel was filed on May 5.
Acting Presiding Justice William W. Bedsworth authored the opinion, which was filed Monday. While the justice disagreed with Orange Superior Court Judge James Di Cesare’s assessment that the trial court lacked jurisdiction to rule on the discovery motion once 45 days had elapsed from Feb. 5, he said the motion to compel brought by defendant Golf & Tennis Pro Shop, Inc. was tardy, anyway.
The period for bringing the motion actually commenced on March 17, Bedsworth declared, but with two days added based on electronic service, the motion was still one day late, he pointed out. Accordingly a petition for a writ of mandate brought by Frye and St. George was denied.
No Precedents
Bedsworth noted that writ review of discovery orders—which is rare—is appropriate where the issue is one of first impression, and the issue presented in the present case, he said, is of such a nature.
The motion was made under Code of Civil Procedure §2030.300(c). That section says:
“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.”
In concluding that Di Cesare’s analysis was “flawed,” Bedsworth reasoned:
“In this case, the language is clear that the clock on a motion to compel begins to run once ‘verified responses’ or ‘supplemental verified responses’ are served….Under the canon expressio unius est exclusio alterius, the insertion of the word ‘verified’ before the word ‘responses’ necessarily requires us to exclude from the provision what it does not mention—unverified responses….Thus, if responses are not verified, the clock cannot begin to run.”
No Ticking
He went on to say:
“If the 45-day clock runs only upon service of verified responses, and responses consisting of both factual responses and objections must be verified, St. George and Frye’s service of unverified responses and objections on February 5 could not have activated it.
“Section 2030.300, subdivision (a) does, as the trial court observed, include challenges to objections as proper subjects for a motion to compel further response to an interrogatory. And yes, ultimately, petitioner’s motion concerned only the objections posed by Frye and St. George, and not any of their factual responses. But—at least in this particular case—both of the aforementioned facts are irrelevant. As a matter of law, the responses here had to be verified because they were a combination of responses and objections. And because they had to be verified, the clock did not begin running until they were—on March 17, 2021.”
Another plaintiff, Andrew Layus, was served with interrogatories later than Frye and St. George, provided verified responses, and was served with a notice of motion within 45 days. However, writ relief must be denied as to him, too, Bedsworth said, because the plaintiff’s notice was deficient.
Code of Civil Procedure §1010, Bedsworth pointed out, specifies that a “notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.”
He remarked that the notice set forth when the motion would be made “but that was about it,” declaring that the “notice of motion was ineffective in doing what a notice is meant to do.”
Sanction Against Plaintiff
Di Cesare imposed sanctions jointly on the plaintiff and its lawyer, Viretha R. Wright of the Costa Mesa firm of Schumann Rosenberg & Arevalo, pursuant to §2030.300(d), in the amount of $4,447 based on having made a discovery motion without “substantial justification.” Given the uncertainty of the law, the plaintiff argued, it had possessed such justification.
Although Bedsworth excused Di Cesare’s error in light of the “the three a.m. darkness of this area of pre-trial civil procedure,” he did not deem the plaintiff’s motions defensible in light of its conduct and that of its counsel. He explained:
“Petitioner’s motions may have involved a vagary of civil procedure, but the motions were properly denied because of petitioner’s own mistakes. Petitioner failed to initiate a meet and confer attempt early in the 45-day period which necessitated law and motion practice on a rushed timeline. Because of this, petitioner had to scramble to file a motion on the deadline itself, and apparently encountered technical issues which delayed the filing to the day after the deadline. And for reasons we cannot fathom, petitioner chose to file incomplete moving papers to boot. There was no substantial justification for this, and we cannot say the court abused its discretion in awarding respondents sanctions.”
A jury trial is slated for May 22.
The case is Golf & Tennis Pro Shop v. Superior Court, Frye RPI, 2022 S.O.S. 5246.
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