Father, the Sleeper Has Awakened!

Golf & Tennis Pro Shop, Inc. v. Superior Court, G060852 (D4d3 Oct. 27, 2022)

Nothing awakes a sleeping civpro blogger from a two-month slumber like a writ case on a first-impression discovery issue.

Three Real Parties in Interest, who are the plaintiffs in the underlying case whose substance remains obscure, timely served responses to Petitioner’s interrogatories. Although they included both objections and responses, they didn’t immediately provide verifications. 

(This is something that used to happen all the time, back when the client needed to drop it in the mail or find a scanner. Less so now when, in a pinch, the client can just take a photo of the verification’s sig page.) 

Verifications were served about a month later. Just about 47 days after that, Petitioner served notices of motion to compel, without any supporting papers. They served the guts of their filings 18 days before the hearing date. The motions were directed to overruling the objections. They took no issue with the responses. The trial court denied the motions as untimely. Petitioner took a writ.

But as the Court of Appeal points out, noting that it’s an issue of first impression, Code of Civil Procedure § 2030.300(c) specifically requires “notice of [a motion to compel be] given within 45 days of the service of the verified responses[.]” Indeed, the “verified” requirement was specifically added by the Legislature in 2013 to address the “verification to follow” issue. So the clock doesn’t run until verifications are served. The Court finds that this applies to mixed responses that contain both objections and substantive responses. (It leaves for another day what happens when someone serves only objections, to which no verification is required.) 

But that still does not save the motions against two of the RPIs. Petitioner apparently submitted its notices of motion to an efiling vendor* on the 47th day after they received the verification. (2 days extra for electronic service.) But Petitioner, didn’t submit proof that the Court accepted the filing under Rule of Court 2.259(a)(2). So the Court deems the actual filing to have occurred the following day―a day too late!

And as to the last PRI, Petitione’rs trick of only providing a notice of motion without the rest of the motion papers was too cute for the Court of Appeal. Although § 2030.300 textually requires only “notice,” § 1010, which defines “notice,” says a notice needs to include the grounds on which it will be made. See also Rule of Court 3.1110(a). This rule is seldom followed by attorneys―I probably break it in every motion I file. But when you file a brief with the notice of motion, the failure is harmless and excused. But with no memo and no grounds in the notice, notice was inadequate. Indeed, in a footnote, the court construes § 2030.300 with § 1010 to require all the relevant papers―notice, memo, declarations, meet and confer declaration―to be served at the same time within the 45-day window.

Finally, Petitioners challenge an award of about $5k in discovery sanctions, claiming they were substantially justified under § 2030.300 because the timing issue was first impression. But that Court isn’t having that either. As it explains, “Petitioner’s motions may have involved a vagary of civil procedure, but the motions were properly denied because of petitioner’s own mistakes.”

So all Marbury v. Madison-style, the law having been clarified, Petitioners get no relief. Writ denied.

*I took a bit of hiatus from this project, mostly because the main civ. pro. cases that dropped over the past two months were a bunch of boring anti-SLAPP cases. But since I’m back on the blog horse, let me take a few minutes to rant about the ridiculous state of e-filing in our trial courts. 

You see, about a decade ago, we still did not have state court e-filing. That’s because, back in 2003, the Judicial Council hired some consultants to build the end-all-be-all of statewide case management software. (I imagine here the car designed by Homer Simpson.) By 2013, they had spent more than half a billion dollars. And it didn’t work. Indeed, they figured it would cost another billion-and-a-half to get it up and running. So they scrapped that whole program. 

Now, by that point, pretty much every jurisdiction, everywhere, already had a e-filing system. (Full civil PACER/ECF came on line in the C.D. while I was a law clerk in 2006 or 2007.) So, one would think that the benefit of being last would be to pick the best existing system, license it, and get it up and running. (FWIW, I’m kind of partial to the Case Management System used by the Nevada’s appellate courts, which appears to be built on a platform used by several jurisdictions.) But that would be too easy for California.

Instead they made a Rule of Court allowing each separate court to “provide for the electronic filing of documents directly with the court, indirectly through one or more approved electronic filing service providers, or through a combination of direct and indirect means.” Rule of Court 2.252(b). This is typically done by courts contracting out with various e-filing vendors. Los Angeles Superior has an enormous number of them. OC Superior—from which the writ here was taken— has a more restrained eleven. And they work like a middleman. You file the document with the vendor, which transmits it to the court somehow, and then some amount of time later, the court “accepts” the filing. But the gap between filing and acceptance can take days. Especially for new complaints. So we have adopted an efiling system that actually manages to make things slower. 

Because California. Welcome to the jungle.