A Day Late and a Memo of Points of Authorities Short

Weinstein v. Blumberg, No. B282267 (D2d1 Jul. 17, 2018)

Unlike in federal court and many other jurisdictions, the Civil Discovery Act sets strict time limits for parties to move to compel further discovery responses, although they can be extended by stipulation. For depos, it’s 60 days from the completion of the record. Code Civ. Proc. § 2025.480(b). When there’s an actual deposition, that starts on the day the depo is taken.

The parties here—the defendant and a third party it subpoenaed—agreed to extend the due date to a date certain. On the stipulated date, Defendant filed a notice of motion and motion to compel along with a declaration that it had met and conferred. But it didn’t file a brief or supporting papers. It said the remaining papers would be “filed and served as provided in” Code of Civil Procedure § 1005(b), i.e. 16 court days before the hearing. Defendant proceeded to serve all the other docs a day late. So third party, now appellant, argues that: (1) the movant blew the 60-day limit because it failed to serve all the papers on time; and (2) it also blew the 16-court day limit in § 1005(b). 

Section 2025.480 says a motion needs to be “made” by the 60-day deadline. Cases have read that deadline to be quasi-jurisdictional, in the sense that the Court doesn’t have the authority to grant a motion filed afterwards. And while § 1005.5 says a motion is “made” when the notice of motion is filed and served, § 1010 says that the notice must be accompanied by the supporting papers. 

So reading it all together, without service of all the ancillary docs required under § 1010, the motion wasn’t “made” on time and therefore was untimely under § 2025.480.

 Reversed.