The People of the State of California vs Sunseeker Enterprises Inc et al

Case Number

19CV04083

Case Type

Hearing Date / Time

Mon, 03/04/2024 - 10:00

Nature of Proceedings

Motions to Compel (10)

Tentative Ruling

Today’s hearing concerns 10 discovery motions.  The first three motions were filed by moving party plaintiff People on January 12, 2024, with an original hearing date of March 18. These motions are motions to compel: (1) responses by defendant Moseley to plaintiff’s requests for production of documents (inspection demand), set eight; (2) responses by defendant Moseley to plaintiff’s requests for production of documents (inspection demand), set nine; and (3) responses by defendant Moseley to plaintiff’s special interrogatories, set four.

The remaining seven motions were filed by moving party plaintiff People on February 7, with an original hearing date of April 15. These motions are motions to compel: (4) responses by defendant Moseley to plaintiff’s supplemental interrogatories, set two; (5) responses by defendant Moseley to plaintiff’s supplemental requests for production of documents, set two; (6) responses by defendant Sunseeker to plaintiff’s supplemental interrogatories, set two; (7) responses by defendant Sunseeker to plaintiff’s supplemental requests for production of documents, set two; (8) further responses by defendant Sunseeker to plaintiff’s special interrogatories, set five; (9) further responses by defendant Sunseeker to plaintiff’s requests for production of documents, set eight; and (10) further responses by defendant Sunseeker to plaintiff’s requests for production of documents, set nine.

No oppositions or other responses have been filed as to any of these motions.

With respect to motions (6) through (10) all of which seek responses or further responses from Sunseeker, these motions will be continued to March 11 to be heard with the motion to strike Sunseeker’s answer and possibly default.   If Sunseeker’s default is entered, these motions will be moot (except perhaps for the issue of an award of sanctions which will be dealt with at a later date).

As to motions 1-2, there are service issues with the electronic service.  Self -represented parties are treated differently. See CCP 1010.6.

“(1)        This subdivision applies to electronic service by consent of an unrepresented person in a civil action.

“(2)        An unrepresented party may consent to receive electronic service.

“(3)        Express consent to electronic service may be given by either of the following:

                “(i)          Serving a notice on all parties and filing the notice with the court.

                “(ii)         Manifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.

“(4)        A person who has provided express consent to accept service electronically may withdraw consent at any time by completing and filing with the court the appropriate Judicial Council form.

“(5)        Consent, or the withdrawal of consent, to receive electronic service may only be completed by a person entitled to service.” (Code Civ. Proc., § 1010.6, subd. (c).)

Wholly apart from the service issues, there are other issues regarding the sufficiency of evidence in support of motions (1), (2), and (3). The respective supporting declarations of attorney Christopher B. Dalbey states that “Moseley did not request an extension of time within which to serve his responses and none was granted.” (Dalbey decl., ¶ 6.) There is nothing in the declaration, however, that states that responses were not served or received. A motion to compel responses in the absence of a response requires proof that no responses had been timely served. (E.g., Code Civ. Proc., § 2031.300, subd. (b) [“If a party to whom a demand for inspection … is directed fails to serve a timely response to it … [¶] … [¶] [t]he party making the demand may move for an order compelling response to the demand.”].) This is a sufficient basis to deny motions (1), (2), and (3). This is not a problem for motions (4) and (5), where the Dalbey declaration contains the express statement that Moseley has not responded to the respective discovery.