Cavalry SPV I LLC vs Andrew W Merithew

Case Number

23CV00259

Case Type

Hearing Date / Time

Mon, 10/09/2023 - 10:00

Nature of Proceedings

Motion: Compel Responses to Form Interrogatories

Tentative Ruling

Cavalry SPV I, LLC, etc. v. Merithew

Case No. 23CV00259

           

Hearing Date: October 9, 2023                                                           

HEARING:              Motion of Defendant to Compel Responses to Interrogatories

ATTORNEYS:        For Plaintiff Cavalry SPV I, LLC as assignee of Citibank, N.A.: Robert Scott Kennard, Christopher Danna, Nelson & Kennard

                                    For Defendant Andrew Merithew: Self-represented  

          

TENTATIVE RULING:

The motion of defendant Andrew Merithew to compel responses to form interrogatories is denied. The request of plaintiff Cavalry SPV I, LLC, for an award of monetary sanctions is denied.

Background:

On January 18, 2023, plaintiff Cavalry SPV I, LLC as assignee of Citibank, N.A. (Cavalry) filed its complaint in this action asserting causes of action for account stated and money lent against defendant Andrew W. Merithew.

On March 6, 2023, Merithew filed his answer to the complaint admitting and denying various allegations of the complaint and asserting seven affirmative defenses.

On July 20, 2023, Merithew served by mail form interrogatories on counsel for Cavalry. (Motion, exhibit A; Danna decl., ¶ 4.)

On August 22, 2023, Merithew filed this motion to compel asserting Cavalry’s failure to respond to the interrogatories.

On August 25, 2023, Cavalry mailed its verified responses to Merithew. (Danna decl., ¶ 5 & exhibit 1.) (As noted below, this was one day after responses were due.)

On September 27, 2023, Cavalry filed its opposition, which argues, among other things, that the motion is premature because it was filed before the responses were due. Cavalry also seeks monetary sanctions in the amount of $500 for failing to meet and confer, citing Code of Civil Procedure section 2023.020.

Analysis:

Merithew’s motion seeks to compel responses to interrogatories where no response had been received at the time of the filing of the motion.

“If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: [¶] … [¶] (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290, subd. (b).)

In order to obtain an order compelling a response in the absence of the moving party receiving any response, the moving party must first establish that the “party to whom interrogatories are directed fail[ed] to serve a timely response.” Attached to the motion as exhibit A are the form interrogatories and the proof of service of the interrogatories showing service by mail on July 20, 2023.

“Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” (Code Civ. Proc., § 2030.260, subd. (a).) The 30-day time period runs from service of interrogatories, but other statutes apply depending upon the manner of service. “Sections 1011 and 1013 apply to any method of discovery or service of a motion provided for in this title.” (Code Civ. Proc., § 2016.050.) “Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California …. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.” (Code Civ. Proc., § 1013, subd. (a).)

Thus, because the 30-day period of section 2030.260 runs from service and service here was by mail on an address within California, the 30-day period is extended five days. “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” (Code Civ. Proc., § 12.) The day 35 days after July 20, 2023, was August 24, 2023. This motion was filed on August 22, 2023, two days before the last day the response to the interrogatories was due. As a result, the motion does not show that the “party to whom interrogatories are directed fail[ed] to serve a timely response.” (Note: It appears that Cavalry has miscounted days in serving its response on August 25, one day after the due date of August 24.)

There are further problems with the motion. “Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following:

            “(1) A notice of hearing on the motion;

            “(2) The motion itself; and

            “(3) A memorandum in support of the motion or demurrer.” (Cal. Rules of Court, rule 3.1112(a).) “Other papers may be filed in support of a motion, including declarations, exhibits, appendices, and other documents or pleadings.” (Cal. Rules of Court, rule 3.1112, subd. (b).) (Note: Discovery motions addressing the sufficiency of responses have additional requirements. (See, e.g., Cal. Rules of Court, rule 3.1345.))

Some motions, such as demurrers and other pleading motions, do not require evidence to be presented either in support of or in opposition to the motion. Most other motions require evidence in order for the court to make findings to grant or to deny the motion. Usually, evidence is presented by declaration. (Cal. Rules of Court, rule 3.1306(a).) Here, Merithew did not present any declarations to support his position. From the moving papers, the court is able to conclude that the motion was filed prematurely solely because the proof of service of the interrogatories is a declaration of service. The moving papers do not include any declaration stating that no response was received. The opposition papers provide additional information showing not only that the motion was filed before responses were due, but also that responses have since been served. (The sufficiency of those responses is not before the court and any dispute would require the parties to meet and confer before the filing of a new motion.)

The motion also erroneously refers to California Rules of Court, rule 8.808. Rule 8.808 deals with motions in the Appellate Division of the Superior Court, not motions in the trial court (where we are now). There are also references to rules 20 and 21, which do not exist in the California Rules of Court.

In opposition to the motion, Cavalry seeks an award of monetary sanctions of attorney fees in the amount of $500 based upon Merithew’s failure to meet and confer prior to filing the motion, citing Code of Civil Procedure sections 2031.310 and 2016.040. (Opposition, at pp. 2-3.)

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

Section 2031.310 provides for a motion to compel further responses to requests for production of documents (formally known as a “demand for inspection”). In support of such a motion, the moving party must include a meet and confer declaration under section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) The corresponding provision for interrogatories is section 2030.300, subdivision (b)(1). None of these provisions, however, apply to this motion to compel a response where no response has been served as was asserted in the moving papers. Where no response has been served, the provisions to compel a response either to interrogatories or requests for production of documents do not require a party to meet and confer. (Code Civ. Proc., §§ 2030.290, subd. (b), 2031.300, subd. (b).) Because this motion is to compel any response where none had been received (even though the motion was premature for reasons discussed above), a meet and confer declaration was not required (even though meeting and conferring in advance of filing any motion is always a good idea as the problems with this motion plainly demonstrate). The request for an award of monetary sanctions will therefore be denied