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Case of the Month Archive

December 2022

Petition for writ of mandate was denied since it was untimely filed and lacked supporting documentation. . .


In a denial of a petition for writ of mandate, the Fourth District held that petitioner's motion to compel further responses to interrogatories was untimely filed and was also insufficient since it was filed without supporting documentation; in so holding, the Fourth District addressed a matter of first impression, concluding that the 45-day time period to file a motion to compel further responses to interrogatories under CCP §2030.300(c) does not begin to run when responding party serves a combination of both unverified responses and objections, but instead begins to run when such party serves its verification.


Golf & Tennis Pro Shop, Inc. v. Superior Court (Steve Frye)

(October 17, 2022)

California Court of Appeal 4 Civ G060852 (Div 3), 84 Cal.App.5th 127, 300 Cal.Rptr.3d 225, 2022 FA 2056, per Bedsworth, Orange County: Di Cesare, petition for writ of mandate denied. For Golf & Tennis Pro Shop, Inc. (Petitioner): Eric Arevalo, Jeffrey P. Cunningham, and Viretha R. Wright. For Steve Frye, George St. George, and Andrew Layus (Real Parties in Interest): Daniel Joseph Williams. CFLP §§D.22, D.


Steve Frye, George St. George, and Andrew Layus filed gender discrimination claims against Golf & Tennis Pro Shop, Inc. (Golf & Tennis), a corporation operating various golf stores in California. These claims were based on Golf & Tennis's women-only promotions in its stores. On January 4, 2021, Golf & Tennis's counsel electronically served Frye and St. George with special interrogatories that sought information about their visits to Golf & Tennis's stores as well as previous gender discrimination lawsuits the pair had filed. On or about February 5, 2021, Frye and St. George served unverified responses to the interrogatories. Their responses included both substantive responses and objections. Frye and St. George sent their verifications separately and much later, and Golf and Tennis's counsel did not receive these verifications until March 17, 2021.


A technical issue. . .
After a meet and confer and various e-mail exchanges did not resolve the objections to the interrogatories, Golf & Tennis prepared and filed a notice of its motion to compel further responses to interrogatories. Golf & Tennis's third-party electronic legal service provider submitted notice of the motion to the trial court on May 4, 2021, and Golf & Tennis e-mailed the notice of motion to opposing counsel that same day. But Golf & Tennis did not show proof that the notice of motion was accepted by the trial court as filed on May 4, 2021. Instead, Golf & Tennis received an e-mail from its third-party provider stating the electronic filing was "'Under Court Clerk Review'" as of 5:38 p.m. on May 4, 2021. Golf & Tennis did not provide any confirmation from the trial court that the review was completed and officially confirmed on May 4, 2021. As a result, the actual filing date was determined to be May 5, 2021, which was after the 45-day deadline to file a motion to compel further responses to interrogatories imposed by CCP §2030.300(c), even applying CCP §1010.6(a)(4)(B) [extending time to respond after service by electronic means by two court days]. In addition, Golf & Tennis did not file its memorandum of points and authorities, declarations, and other supporting documents with its notice but waited until August 23, 2021, to file these documents, which was 18 court days prior to the hearing on the motion.

Meanwhile, Golf & Tennis served Layus with a similar set of interrogatories on February 19, 2021. Layus served his verified responses on or about March 23, 2021. However, Golf & Tennis's counsel waited until May 7, 2021, to conduct a meet and confer regarding the responses and, as a result, sought an extension of its deadline to move to compel, which was not granted. Golf & Tennis filed its notice to compel Layus to provide further responses on May 11, 2021. Golf & Tennis again did not file its supporting documentation with the notice, instead filing them separately on August 23, 2021.

Frye, St. George, and Layus filed oppositions to Golf & Tennis's motions to compel, arguing that these motions were untimely under CCP §2030.300(c) and, moreover, the notices served were inadequate without supporting documentation. The trial court denied Golf & Tennis's motions as untimely and ordered sanctions totally $4,447 against Golf & Tennis per CCP §2030.300(d) [trial court must impose monetary sanctions against losing party on a motion to compel, unless it finds that the party had substantial justification or that the sanctions would be unjust]. Golf & Tennis sought a writ of peremptory mandate overturning the trial court's decision, but the Fourth District denied the writ.

As a preliminary matter, the justices noted that although the prerogative writ is a disfavored method of review for discovery orders, it is appropriate where an abuse of discretion results in a denial of discovery.

The justices next noted that CCP §2030.300(a) permits motions to compel further responses to interrogatories if (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. CCP §2030.300(c) further provides a deadline to file such a motion, providing "'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.'"


A matter of first impression. . .
Frye, St. George, and Layus argued that since Golf & Tennis's motion concerned only their objections, which aren't required to be verified, the 45-day period began to run when they delivered the combination of their unverified responses and objections, which was on February 5, 2021. Golf & Tennis, meanwhile, argued that the 45-day period did not begin until service of the verifications, which in the case of Frye and St. George occurred around March 17, 2021, and in the case of Layus occurred around March 23, 2021. The justices observed that this issue, whether interrogatory responses consisting of both unverified factual responses and objections start the 45-day cock under CCP §2030.300(c), is a matter of first impression.

To answer this question, the justices first considered the plain language of the statute, reasoning that the phrase "verified responses" in the text of CCP §2030.300(c) necessarily excludes unverified responses. The justices further observed that the Legislature added the word "verified" to clear up any confusion about when the clock begins to run since it had become "'common practice' of serving timely unverified responses to discovery with the promise of providing verifications for the same as soon as possible." Objections, on the other hand, do not need to be verified, since under CCP §2030.250(a), "'[t]he party to whom…interrogatories are directed shall sign the response under oath unless the response contains only objections.'" When parsing this language, the justices noted that the qualifying word "only" appearing before "objections" necessarily excludes scenarios in which a response consists of both objections and responses. Thus, the 45-day period does not begin to run when interrogatory responses consisting of both unverified responses and objections are served until service of the verification. As a result, the clock began to run in this case on March 17, 2021, as to Frye and St. George, and on March 23, 2021, as to Layus.

Despite the foregoing analysis, the justices still concluded that Golf & Tennis's motions as to Frye and St. George were untimely. Using the date of March 17, 2021, Golf & Tennis's deadline to give notice of its motion to Frye and St. George was May 4, 2021, but they did not file such notice until May 5, 2021, which was in part due to technical issues.

Turning then to the motion to Layus, the justices concluded that the notice was insufficient to Layus-and in fact to all three responding parties-since it was filed without supporting documentation and, thus, failed to comply with CCP §§2030.300(c) and 1010. CCP §1010 requires that "Notices must be in writing, and the 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. If any such paper has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice." The justices disagreed with Golf & Tennis's argument that its notice substantially complied with this requirement, noting that Golf & Tennis's notice of motion did not identify the specific interrogatories, did not cite any statutory authority, and failed to identify the papers upon which it was to be based.

Finally, the panel disagreed with Golf & Tennis's argument that monetary sanctions were not warranted since it acted with substantial justification given this was a matter of first impression. The justices pointed out that the motions were properly denied because of Golf & Tennis's own mistakes. First, it failed to initiate a meet and confer attempt early in the 45-day period, which resulted in Golf & Tennis having to file its motion quickly before the deadline. But Golf & Tennis encountered technical issues that caused the filing of the notice to be delayed one day after the deadline. And second, Golf & Tennis filed incomplete moving papers. For these reasons, there was no substantial justification and, thus, the trial court did not abuse its discretion in awarding sanctions.

Accordingly, the Fourth District denied Golf & Tennis's writ of mandate and discharged the order to show cause.





In its opinion, the Fourth District noted that although it concluded the trial court was wrong in its analysis of when the 45-day period began to run, it "appreciate[d] the earnestness with which it attempted to navigate the three a.m. darkness of this area of pre-trial civil procedure." In reaching its decision, the trial court had reasoned that the 45-day period must have begun when both the unverified responses and objections were served, where the propounding party's motion concerned only the objection, because otherwise there is no time limit on a motion to compel involving objections, which leads to what the trial court called an "absurd result." The justices noted that they must address the possibility of an "absurd result" arising from this analysis another day, but since "that other day will doubtless come," they requested the Legislature address it before they have to.


Library References
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶8:1136



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