Many motions for terminating sanctions are denied due to the papers being deficient due to a lack of a showing of abuse and prejudice.
Continue Reading When Money is Not Enough–The Request for “Drastic Sanctions”
When Do I Have to Bring a Motion to Compel Written Discovery?
One of the most common questions I am asked is: when does the clock start regarding bringing motions to compel written discovery? The statutes all contain the same language, but it’s not that easy to decipher. Below is a list of scenarios with the applicable statutes and case law regarding the different responses you may receive.
FAILURE TO RESPOND There is no time limit on bringing the motion to compel the response to the Interrogatories, or the request for production of documents, or have the admissions be deemed admitted. See CCP §§2030.290(b), 2031.300(b) and 2033.280.
RESPONSES WITHOUT VERIFICATION There is no time limit on bringing the motion, as an unverified response is tantamount to no response. See Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1102 citing Appleton v. Sup. Ct. (1988) 206 CA3d 632, 636.
RESPONSES WITH ONLY OBJECTIONS Need to bring the motion within 45-days of service of the response. See CCP §§2030.300(c), 2031.310(c), and 2033.290(c).
Responses that only contain objections need not be verified by the party but the response must be signed by the attorney. See CCP §§ 2030.250(a),(c), 2031.250(a),(c), 2033.250(a), (c) and Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1113 citing Blue Ridge Ins. Co. v. Sup. Ct. (1988) 202 CA3d 339, 344.
RESPONSES WITH ANSWERS AND OBJECTIONS Need to bring the motion within 45-days of service of the response. See CCP CCP §§2030.300(c), 2031.310(c), and 2033.290(c).
The Fourth District Court of Appeal in the case of Golf & Tennis Pro Shop, Inc. v. Superior Court, 2022 Cal. App. LEXIS 855 answered the question whether the 45-day period to file a motion to compel further responses begins to run upon service of a combination of unverified responses and objections if the motion challenges only the objections. The Court held that “the most reasonable construction of the applicable statutes seems to us to require verification of such a hybrid of responses and objections before the time period begins to run.”
The response must be signed under oath by the responding party and the attorney. See CCP §§ 2030.250(a),(c), 2031.250(a),(c), 2033.250(a), (c) and Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1113 citing Blue Ridge Ins. Co. v. Sup. Ct. (1988) 202 CA3d 339, 344.
AMENDED RESPONSES The clock on a motion to compel further responses begins to run once the “supplemental verified responses” are served. See CCP §§2030.290(b), 2031.300(b) and 2033.280. See Golf & Tennis Pro Shop, Inc. v. Superior Court, 2022 Cal. App. LEXIS 855.
REMEMBER:
Stipulations to extend the time to bring a motion to compel further responses must be in writing with a date certain. See Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1148 and CCP CCP §§2030.300(c), 2031.310(c), and 2033.290(c).
Delaying the motion beyond the 45-day limit waives your right to bring a motion to compel as the court loses jurisdiction. See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 at 683-684 and Sexton v. Superior Court (1997) 58 CA4th 1403, 1409-1410
The court may toll the deadline for filing a discovery motion if an Informal Discovery Conference is requested pursuant to CCP §2016.280. See blog “If Meet and Confer Fails, Ask for Help.”Continue Reading When Do I Have to Bring a Motion to Compel Written Discovery?
Why You Need to Bring that Motion To Compel Further Responses to Interrogatories
The purpose of discovery is to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 55 C.2d. 355, 376.
Serving “[a]ppropriate written interrogatories are one of the means to accomplish the general goals of the discovery process designed to facilitate a fair trial.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 CA4th 377, 389)
“Interrogatories expedite the resolution of lawsuits … [by detecting] sham claims and defenses … [and] may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy.” Deyo v. Kilbourne (1978) 84 CA3d 771, 779
Continue Reading Why You Need to Bring that Motion To Compel Further Responses to Interrogatories
Should you withdraw your motion if the other side has complied?
I have always been a strong advocate that you should be awarded sanctions if you had to bring a motion to get the relief you were entitled to even if the other side complied prior to the hearing on the motion. However in the case of Evilsizor v. Sweeney (2014) 230 CA4th 1304, the First District Court of Appeal had an interesting take on the issue.
Continue Reading Should you withdraw your motion if the other side has complied?
Why You Need to Bring a Motion to Strike General Objections
Recently I was contacted to help on a party’s Motion to Compel Further Responses to Form Interrogatories, Requests for Production of Documents, and Requests for Admissions. In viewing opposing counsel’s responses to the discovery, I gazed upon the General Response and Objections preamble in absolute astonishment. It read as follows:
Continue Reading Why You Need to Bring a Motion to Strike General Objections
All Answers Remain the Same
DILEMMA: It is 30 days before trial and you get the final responses to your propounded discovery. In reviewing responding party’s answers to supplemental interrogatories the verified response says “Responding party states that all answers to Interrogatories, Set No. One, that were previously served in this action remain the same.” Yet years have passed, records have been obtained, experts have been deposed and you know they’re lying. What do you do?
Continue Reading All Answers Remain the Same
GAME ON-The Opposition
You have been served with the Motion to Compel Further Responses with a Separate Statement of Items in Dispute the size of your fist and your response is due in two weeks. Now what do you do? First, take a deep breath. This is the time you decide when to “hold them and when to fold them” because how you respond may end up setting the tone between you and opposing counsel for the entire case.
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What Should Your Discovery Motions Look Like?
Discovery motions are the banes of most attorneys’ existence and they are often relegated to the newbie in the office to prepare. Young associates as well as other attorneys struggle on what needs to be in the papers and exactly how to convince the court that they should win.
With the courts’ having budgetary problems and staff shortages, it is in your best interests to make it real clear to the court (1) what has happened; (2) what you want the court to do; and (3) why you are entitled to the discovery and sanctions in a succinct fashion.
Continue Reading What Should Your Discovery Motions Look Like?
You’ve Blown the Dreaded Draconian 45-Day Rule-Now What Do You Do?
Motions to compel further responses to interrogatories, requests for productions of documents and requests for admissions require that the motion be filed within 45 days. CCP §§ 2030.300(c), 2031.310(c) and 2032.290(c) Delaying the filing of the motion waives a party’s right to compel further responses. The case of Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 at 685 (Pre-1986 Discovery Act) takes the position that the court lacks jurisdiction to order further responses after time has expired. The Second District Court of Appeal upheld this rationale in Sexton v. Superior Court (1987) 58 Cal. App. 4th 1403), 1410. So now what do you do?
Continue Reading You’ve Blown the Dreaded Draconian 45-Day Rule-Now What Do You Do?
Interrogatories–You have An Obligation to Respond in Good Faith
Imagine this: At the beginning of the case you serve interrogatories asking basic information about your case. Thirty-five (35) days later you receive responses that state for every interrogatory:
“Vague, ambiguous, overbroad, burdensome, oppressive, not likely to lead to admissible evidence and the information is equally accessible to the defendant. Plaintiff further objects on the grounds of attorney client privilege and the work product doctrine. See Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214.
Does this sound all too familiar? The frustration level is high with attorneys as it will take at a minimum 121 days to get basic information if you have to file a motion to compel further responses. Meanwhile the court is scheduling a trial date and your discovery train hasn’t even left the station.
Continue Reading Interrogatories–You have An Obligation to Respond in Good Faith