Motions to Compel Further Responses in California: A Review of the Mandatory Codes and Rules

There is a rule for everything in California State Court civil litigation. A particular procedure may be governed by the Code of Civil Procedure (“C.C.P.”) or the California Rules of Court (“C.R.C.”), or, as is usually the case, both. There may also be required court forms. 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. That’s why it is so important to use an up-to-date guide devoted solely to California civil litigation.

The C.R.C. dictate the required format of a particular document (the type of paper which must be used, where on the page certain information must appear); the contents of a particular document (good faith declaration, separate statement); time limitations within which to file and serve a document (discovery cut-off, motion cut-off, notice of motion deadlines); how to calculate deadlines (how to count days, extending time depending on service method, what to do when you land on a holiday), and much, much more.

A motion to compel further responses to discovery is a prime example. Drafting, filing, and serving a motion to compel further responses and calendaring all associated deadlines demands strict compliance with scores of requirements, including, at a minimum, the following:

  • C.C.P. § 12c (effective 1/1/11) and C.C.P. § 1005(b)) (to calculate the last day to serve the notice, opposition, and reply)
  • C.C.P. § 1013 or 1010.6 (to calculate the last day to bring the motion)
  • C.C.P. § 2023.040 (to seek monetary sanctions)
  • C.C.P.§ 2024.020 (to set the hearing date prior to the discovery motion cut-off date)
  • C.C.P. § 2030.300 (to determine the time for bringing the motion, grounds for bringing the motion, meet and confer requirement, possible sanctions against moving or opposing party)
  • Government Code §70617(a) (to determine the filing fee)
  • C.R.C., Rule 3.1110 (for general format)
  • C.R.C., Rule 3.1112 (for specific format of motions)
  • C.R.C., Rule 3.1113 (for specific format of memorandum)
  • C.R.C., Rule 3.1308 (to determine the court’s tentative ruling and what to do about it)
  • C.R.C., Rule 3.1345 (for specific format of discovery motions)

Assuming you find all of the codes and rules, it is not enough to just read them. They have to be digested, understood, and melded together… in the right order. Many, particularly those related to calculating deadlines, interrelate and must be applied at the right time.

Here are some slightly more in-depth examples of the intricacy involved in motions to compel further responses.

Time in Which to Bring a Motion to Compel Further Responses

It is essential to bring the motion and to have it heard within strict time constraints. The motion to compel further responses has to be brought within 45 days of service of the response. (C.C.P. § 2030.300) To calculate that 45-day deadline, you have to understand when something is deemed served. You have to know how to determine the day which is 45 days after the responses were served, what to do if that day lands on a holiday, and, where the responses were not personally served, how many days by which to extend the deadline. This could vary from two court days to five days to ten days, depending upon the service method and, where served by mail, the location of the parties. Not only do these tasks require application of C.C.P. §§ 12 and 1013 (or 1010.6 for electronic service), and possibly 12a, you also have to be mindful of all of the California State Court Holidays (there are three in addition to the Federal holidays).

If the motion involves non-expert discovery, it has to be heard before the 15th day prior to the initial trial date. (C.C.P. § 2024.020(e)) If it involves expert discovery, it has to be heard before the 10th day prior to the initial trial date. (C.C.P. § 2024.030)

Requirements Common to Regular Motions

(1) 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. The extensions of time depend upon the service method. They vary greatly, and are different enough from the extensions mentioned above to make it dangerously confusing (2 days are added under one scenario; 2 court days are added under the other). Moreover, one must know how to count the days: backward from the hearing date pursuant to newly enacted C.C.P. § 12c, starting with the 16 court days.

(2) Format – The motion must comply with the format requirements contained in C.R.C., Rules 3.1110 and 3.1112, e.g., what has to be in the title and below the title, what has to be in the opening paragraph, proper binding, form of exhibits, the required parts of a motion and what must be stated. 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.

Format Requirements Specific to Discovery Motions and/or Motions to Compel Further Responses

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.

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)

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 codes and rules governing:

  • Telephonic appearances — when available and how and when to request one
  • Hearing fees
  • The court’s tentative ruling — whether you have to appear at the hearing or may request an appearance
  • Notice of ruling
  • Proposed orders, and more

A misstep at any point may result in denial of the motion and a waiver of the right to compel further responses.

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