hair pulling woman.jpg

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 (pdf) 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 (pdf), 1410.

Weil and Brown Civil Procedure Before Trial (TRG 2009) §8:1150 suggests that you may be able to obtain relief under C.C.P. Section 473(b) which allows for relief generally from “any judgement, order or other proceeding” on a showing of “mistake, inadvertence, surprise or excusable neglect” citing Zellerino v. Brown (1991) 235 Cal. App. 3d 1097 (pdf).  In that case the Court of Appeal stated that relief can be obtained under CCP § 473(b) when the Discovery Act does not provide a remedy. However, Zellerino involved experts and none of the cases citing Zellerino involved the 45-Day Rule.  To date, I have never heard anyone being successful and after 20 years of the Discovery Act, I seriously doubt that any court would give relief under CCP § 473.

So now what do you do? The answer is another discovery device. In Carter v. Superior Court (1990) 218 CA3d 994 (pdf) the court held even though a party had missed the deadline for compelling inspection of documents under C.C.P. Section 2031 it did not bar him from requesting the same documents be brought to a deposition. Therefore, you can serve any of the following discovery devices and pretty much get the same result:

  • Interrogatories–Use requests for admissions coupled with Form Interrogatory 17.1 and request for documents.
  • Request for Production of Documents –Use deposition notices with a document requests, corporate deposition notices with a document request and/or third party subpoena for deposition with documents.
  • Request for Admissions –use special interrogatories or deposition notices

One thing you can’t do is reserve the same interrogatories, requests for documents and/or requests for admissions and “reset the clock.”  Sexton at 1408 citing Professional Colleges, Magna Institute, Inc. v. Sup. Ct. (1989) 207 CA 3d 490.

Your other alternative is let the objections stand.  Then at trial serve a motion in limine excluding all evidence that was not produced in discovery. If a party does not cough up the info during discovery they can’t use it at trial.

These are a few suggestions on the dreaded draconian 45-Day Rule. Does anyone have any more?

  • Katherine:

    As a Los Angeles defamation lawyer, I love your blog. It’s extremely practical and insightful. So if I ready this post correctly, you can serve form rogs or specials rogs together with a deposition notice and the deponent needs to provide answers at the deposition? Is that true? If so, do you have to wait 35 (30 +5) days to take the depo or can you do it in 15 (10 + 5).

  • Peter

    Adrianos – I believe what Katherine is saying is that if you have failed to obtain responses to one form of discovery, you can obtain those responses through another form of discovery. For instance, if your 45 day time limit has lapsed for a Motion to Compel responses to Interrogatories, and there has been no satisfactory response, why not just serve a deposition notice and ask the exact same questions there? Or, you can serve a Request for Admissions that mirror the interrogatories, and attach Form Rog 17.1 for the same result.

    The most powerful tool for discovery workarounds is the Notice of Deposition with Request for Production. When you have less than thirty days before the discovery cutoff, a Notice of Deposition can serve as a suitable replacement for Request for Admission, Interrogatories, or a Request for Production. The only problem is when you have already deposed the person with the answers – so, then you use a Person Most Knowledgeable deposition notice (assuming you have a business entity party) or a deposition of a third party that has the same info.

  • Thanks for the response, Peter.

  • Does anyone know the proper procedure to bring a third party corporate PMK to trial in a State Court action in California. I have a trial and need to get a witness from a third party non defendant corporation subpoenaed to trial. Do I need to serve the individual personally or could I serve the corporations agent for process? Same thing with corporate officers of the third party non defendant corporation.

  • Sharon
  • CCP Section § 2031.310.(c) states “Unless notice of this motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

    CCP Section 1005(b) states that “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing”.

  • Sarah

    I have a motion to compel set tomorrow and am wrestling with the “notice” requirement under CCP for the motion. In this context, does “notice” mean that the motion has to have been SERVED within the 45 day window, or simply filed with the court?

  • Yes.

  • Nikki

    When parties stipulate to an extension to supplement responses before OPC will file a motion to compel, and you send supplemental responses on the date of the extension, is this timely? Do you get 5 days for delivery?