In a recent case, a California appellate court reviewed the timelines for verified and unverified interrogatory responses and objections.  Although the underlying case focuses on gender discrimination claims against the golf shops, the holding in Golf & Tennis Pro Shop, Inc. v. Superior Ct. of Orange Cnty provides better insight into the 45-day period to file a motion to compel further responses.

Procedural History and Legal Issue:

In the underlying case, the petitioner/defendant encountered delays when requesting responses to interrogatories.[1]  Interrogatories were served in January and February seeking information about petitioner/defendant’s store location and previous similar gender discrimination lawsuits filed by plaintiffs.  Responses were served in February and March.  The parties met and conferred in late April and early May.  At that time, petitioner/defendant sought an extension on a motion to compel further responses to the interrogatories but received no response to the request.  In May, petitioner/defendant waited an inordinately long time to meet and confer regarding the responses and therefore had to seek an extension of its deadline to move to compel.  This deadline was apparently was not granted.  Petitioners then filed notice of a motion to compel two of the plaintiffs in early May and filed notice of its motion to compel the third plaintiff soon after.  These motions did not include supporting papers, and the first motion did not include a memorandum of points and authorities or declarations.  Supporting documents were not filed until late August, only 18 days prior to the hearing date.  The trial court imposed sanctions.

Based on the history of the case and trial court, the appellate court stated it is appropriate to review discovery orders via writ of mandate when “we are presented with a question of first impression which is of general importance to the trial courts and to the profession, and in conjunction with which general guidelines can be laid down for future cases.”[2]  The main question is: “does the 45-day time period to file a motion to compel further response to interrogatories begin to run upon service of a combination of unverified responses and objections if the motion challenges only the objection? i

The appellate court answered this question in the negative and disagreed with the trial court’s analysis concluding otherwise.  The court stated that the most reasonable construction of the applicable statutes seems to require verification of such a hybrid responses and objections before the time period begins to run. i

The Rules on Motions to Compel Further Responses:

Motions to compel further responses to interrogatories are permitted in certain cases.  These are when a litigant either fails to respond adequately to an interrogatory or poses what the propounding party believes to be an unjustified objection to one. [3]

The statute gives a deadline.  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. iv

Parties’ Arguments:

Plaintiffs in the underlying case contended petitioner (defendant in the underlying case) waived its right to compel further responses from them because the 45-day period began on February 5, 2021.i  Their view was:

• petitioner’s motion concerned only their objections and not any of the substantive responses and
• it did not matter if the verifications were served later; the objections were final as of February 5.i

Petitioner disagreed, contending the 45-day clock did not start to tick until service of the verifications somewhere around March 17. i

Trial Court Analysis:

 Respondent trial court agreed with the plaintiffs’ calculation.  It observed it had no jurisdiction to review an untimely filed motion. iii  And because objections need not be verified, it reasoned, requiring service of verifications to start the 45-day clock would “effectively remove any timing requirement” from section 2030.300, thus producing an absurd result.[4]

Appellate Court Analysis:

The court of appeals found the trial court’s analysis flawed. iii  The issue of whether interrogatory responses consisting of both unverified factual responses and objections start the 45-day clock under section 2030.300, subdivision (c) is, to our knowledge, a question of first impression, so we offer here our own analysis of it.iii

1. How does the court handle an issue of statutory interpretation?
   1. First, plain language: The court will start with the statute’s actual words because they are “the most reliable indicator of legislative intent”.[5] This assigns the words “their usual and ordinary meanings, and construing them in context”.[6]
      • NOTE: If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute’s plain meaning governs. iv
   2. Second, legislative history: if the language allows more than one reasonable construction, the court may look to such aids as the legislative history of the measure and maxims of statutory construction.iv

• Finally, impact on policy: In cases of uncertain meaning, the court may also consider the consequences of a particular interpretation, including its impact on public policy.’[7]

NOTE: the court stated that we are not to “construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’”[8]

1. How did the court interpret the language in this case?
   1. Plain Language: In this case, the language is clear that the clock on a motion to compel begins to run once “verified responses” or “supplemental verified responses” are served.[9] Under the canon expressio unius est exclusio alterius, the insertion of the word “verified” before the word “responses” necessarily requires us to exclude from the provision what it does not mention – unverified responses.[10]  Thus, if responses are not verified, the clock cannot begin to run.
   2. Legislative History: When the legislature inserted the word “verified” as part of the amendment to the Civil Discovery Act [11] in 2013, it was done to:
      • resolve any ambiguity in the law by specifying that the 45-day period in which to file a motion to compel does not begin to accrue until service of a verified response is made. Thus, if the response is served before verification, the 45-day period would not yet begin – it would begin upon service of the verification of the previously supplied response.iv

There is a question of whether objections need to be verified under oath.  Both statutory language and the judicial interpretation offer some clarity here.  Per the statutory language: “The party to whom interrogatories are directed shall sign the response under oath unless the response contains only objections.” [12]  The court stated it can ascertain from the inclusion of the qualifying word “only” before the word “objections” that a response which consists of both objections and responses must be verified; the only exception to this requirement is a response which contains nothing but objections.

Monetary Sanctions

 Was the propriety of the monetary sanctions imposed by the trial court, which totaled $4,447, appropriate? [13]  When properly requested, such sanctions must be imposed by the trial court on the party or attorney who is unsuccessful in either making or opposing a discovery motion.[14]  The only exception is if the court finds the unsuccessful side “acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” [15]  The burden of showing such circumstances is on the losing party.[16]  Here, it is unclear whether petitioner/defendant made any attempt to meet its burden to show substantial justification or unjust circumstances.

Take Aways

The most important takeaway for insurers is to make sure counsel is reliably following the dates and deadlines required.  Here, if responses are not verified, the 45-day clock cannot begin to run.  A response which consists of both objections and responses must be verified.  Attorneys should double check, before service a notice of motion, that it meets all requirements.  If sanctions are requested, the unsuccessful party (either making or opposing discovery motion) who has “substantial justification or unjust circumstances” has the burden of showing that sanctions are not appropriate.[17]

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Sources

[1] Golf & Tennis Pro Shop, Inc. v. Superior Ct. of Orange Cnty., 84 Cal. App. 5th 127, 131 (2022)

[2] Golf & Tennis Pro Shop, Inc. v. Superior Ct. of Orange Cnty., 84 Cal. App. 5th 127, 131 (2022)

[3] § 2030.300, subd. (a).

[4] Golf & Tennis Pro Shop, Inc. v. Superior Ct. of Orange Cnty., 84 Cal. App. 5th 127, 134 (2022)

[5] Doe v. Brown (2009) 177 Cal.App.4th 408

[6] People v. Loeun, supra, 17 Cal.4th at p. 9.

[7] Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190;  (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837-838.

[8] Clean Air Constituency v. California State Air Resources Board (1974) 11 Cal.3d 801, 814.; People v. Pieters (1991) 52 Cal.3d 894, 899.

[9] § 2030.300, subd. (c).

[10] See DynaMed, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13.

[11] Senate Analysis of AB No. 1183 (2013-2014 Reg. Sess.) June 4, 2013.

[12] § 2030.250, subd. (a)

[13] See § 2030.300, subd. (d).

[14] See Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1441 [observing the Legislature intended to “shift fees and costs to the party who has failed to comply with” the civil discovery statutes]

[15] Ibid.

[17] CCP § 2023.030