Updated on May 15, 2023
There has long been an ambiguity regarding the motion to compel deadline when the responding party serves unverified responses consisting of both objections and substantive responses. In this blog, we’ll be discussing how the motion to compel deadline ambiguity was resolved.
In the recent case of Golf & Tennis Pro Shop, Inc. v. Sup. Ct. of Orange (2022) 222 WL9833211, the Court of Appeal finally clarified that ambiguity, holding that the 45-day clock under section 2030.300(c) of the Code of Civil Procedure begins to run when a verification is provided where the response in question consists of both objections and substantive responses.
On January 4, 2021, petitioner’s counsel electronically served special interrogatories on the real parties in interest and plaintiffs, Frye and St. George. On February 5, 2021, Frye and St. George served unverified responses which consisted of objections and substantive written responses. Petitioner’s counsel did not receive the verifications to those responses until over a month later, on March 17, 2021.
In late April 2021, petitioner’s counsel met and conferred with plaintiffs’ counsel regarding plaintiffs’ responses. However, the parties were ultimately unable to resolve the dispute. Accordingly, on May 5, 2021, petitioner filed a notice of motion to compel further responses to the interrogatories. Petitioner’s counsel then separately served the memorandum of points and authorities, declarations and other supporting documentation on August 23, 2021, which was 18 court days prior to the hearing set for September 17, 2021.
Meanwhile, petitioner’s counsel served a similar set of interrogatories on another real party interest and plaintiff, Layus, on February 19, 2021. Layus served verified responses on March 23, 2021. Petitioner’s counsel did not meet and confer regarding those responses until May 7, 2021. Petitioner then filed notice of a motion to compel on May 11, 2021, and filed the supporting papers on August 23, 2021 like the Frye/St. George.
In opposition to the motion to compel, the plaintiffs argued the motions were untimely under Code of Civil Procedure section 2030.300 because petitioner failed to file the motions and supporting documentation within 45 days, plus any extension based on the method of service, of when plaintiffs originally served their responses. The trial court agreed and denied the motions. Petitioner then sought a writ of peremptory mandate overturning the trial court’s decision.
With respect to the Frye/St. George responses, petitioner contended that the 45 day clock did not begin to run until Frye/St. George provided a verification on March 17, 2021. Respondent contended that the clock began to run when Frye/St. George served their responses on February 5, 2021. The Court of Appeal agreed with petitioner, finding that based on the express language of the statute, which referenced “verified responses,” the 45 day clock did not begin to run until March 17, 2021, when petitioner received the verifications. However, the Court of Appeal ultimately affirmed the trial court’s ruling on the grounds that merely serving the notice of motion without the supporting documentation within the 45 day deadline was not sufficient.
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