Motions to Compel Further Responses to Discovery in California:
A Review of the Mandatory Codes and Rules
© 2019 by Julie A. Goren, Esq.
There’s a rule for everything in California State Court civil litigation. A single procedure (e.g., filing a complaint, answering a complaint, filing a motion, opposing a motion, serving discovery, responding to discovery, etc.) may be governed by the Code of Civil Procedure (“C.C.P.”), the California Rules of Court (“C.R.C.”), local court rules, or all three. These codes and rules dictate format, content, and time limitations. Depending upon the procedure in question, there may even be required California Judicial Council forms, or local forms, or both. Failure to apply a code, a rule, or use a mandatory form can have serious consequences, among them, waiving the right to do whatever it was you were attempting to do, or even being sanctioned by the court. That’s why everyone in the law office, from the most experienced litigator to the most inexperienced trainee (attorney, paralegal, legal secretary, etc.) relies on Litigation By The Numbers® (“LBTN”), a 490-page California civil practice guide updated twice yearly.
A motion to compel further responses to interrogatories is a prime example. (This is where you’ve received responses to interrogatories, believe them to be incomplete, and you want the court to order the responding party to provide further responses.) Drafting, filing, and serving a motion to compel further responses and calendaring all associated deadlines demands strict compliance with scores of requirements.
Here are just a few of the California codes and rules of court which will have to be applied correctly to ensure that the moving papers are complete and in the proper format, the motion is brought timely, the motion is filed in the correct place with the correct filing fee, the papers are served correctly and timely, etc.
C.C.P. § 12c
C.C.P. § 1005(b)
C.C.P. § 1013 or 1010.6
C.C.P. § 2023.040
C.C.P. § 2030.300
Gov’t. Code §70617(a)
C.R.C., Rule 3.1110
C.R.C., Rule 3.1112
C.R.C., Rule 3.1113
C.R.C., Rule 3.1308
C.R.C., Rule 3.1345
Yes, every one of those codes and rules governs some aspect of a motion to compel further responses to interrogatories.
Now, assuming you find all of the applicable codes and rules, it is not enough to simply read them. They have to be digested, understood, and correctly applied. Those related to calculating deadlines interrelate and must be applied in the right order. Fortunately there’s help: LBTN guides the reader through these steps. View an excerpt from the Motions chapter here.
Let’s look a bit deeper into a few of these rules.
Time in Which to Bring a Motion to Compel Further Responses:
The motion to compel further responses has to be brought within 45 days of service of the response. (C.C.P. § 2030.300) Sounds simple enough, but it’s not. You have to understand when something is deemed served. You have to know how to count to that 45th day, what to do if that day lands on a holiday or weekend, and, where the responses were not personally served, how many days by which to extend that 45-day deadline. This could vary from two court days to five calendar days to ten calendar days, depending upon the service method and, when served by mail, the location of the parties. These tasks require application of C.C.P. §§12 and 1013 (or 1010.6 for electronic service), and possibly 12a. When calendaring deadlines, one must also be mindful of all of the California state court holidays (there are three in addition to the Federal holidays). [LBTN devotes ten pages to Calendaring in California State Court, which includes this essential information.]
Requirements Common to Regular Motions
Notice: Once you have your hearing date, you must calculate the last day to serve your notice and moving papers. The motion must be filed and served at least 16 court days prior to the hearing. (C.C.P. § 1005(b)) Service must be made earlier if the papers are not personally served. How much earlier depends upon the service method (mail or overnight mail, and, where authorized, electronic service or fax). The extensions, found in C.C.P. § 1005(b), are just different enough from the extensions mentioned above to make it dangerously confusing (2 calendar days under one scenario; 2 court days under another). Moreover, one must know how to count the days: is it backward from the hearing date or forward from the notice date? Recently enacted C.C.P. § 12c solves that: count backward from the hearing 16 court days and then add the applicable extension. [LBTN has an entire chapter devoted to “Filing, Service, and Calendaring.” It includes detailed information about each method of service, when they are authorized, the various extensions of time, and detailed instructions on calculating deadlines.]
Format: The motion must comply with the format requirements contained in C.R.C., Rules 3.1110 and 3.1112. These include what has to be in the title and below the title, what has to be in the opening paragraph, what to include when monetary sanctions are sought, the required parts of a motion and what must be included in each, form of exhibits, proper binding, proper numbering of pages, etc. The memorandum of points and authorities must comply with C.R.C., Rule 3.1113 with respect to contents, proper format of case citations, page limitations, and inclusion of a table of contents and table of authorities where required. [LBTN explains these requirements and provides easy-to-follow examples.]
Content Requirements Specific to Discovery Motions and/or Motions to Compel Further Responses
Monetary sanctions: If sanctions are sought, C.C.P. § 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.
Meet and confer: A prerequisite to bringing a motion to compel further responses is a reasonable and good faith attempt to informally resolve the issues presented by the motion. The motion must include a “a good faith declaration,” stating that the attempt was indeed made. (C.C.P. § 2030.300) Certain types of cases in certain courts, e.g., Personal Injury Actions in Los Angeles county, might also require an informal discovery conference with the judge before bringing the motion. [This, too, is covered in LBTN.]
Separate statement: All motions to compel further responses in California state court must include a separate statement in accordance with C.R.C., Rule 3.1345, stating the specific discovery request, the response given, the factual and legal reasons for compelling further responses, etc.
Then there are the California codes and rules of court governing:
Telephonic appearances — when available and how and when to request one
Tentative rulings – whether you have to appear at the hearing or may request an appearance
Notice of ruling
A misstep at any point may result in denial of the motion and a waiver of the right to compel further responses. Of course if you are on the receiving end of the motion to compel, you’ll need to know your deadline for opposing the motion, the format for doing so, etc. If your opposition is late, the court may ignore it.
These consequences can be eliminated by using LBTN, which pulls together the California codes, rules of court and Judicial Council forms for commonly-encountered tasks in superior court civil litigation and explains them, step-by-step. Do yourself a favor and check out this essential California civil litigation practice guide updated twice yearly. The sooner you do, the sooner you’ll have it.