BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1183
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          Date of Hearing:   April 9, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                 AB 1183 (Jones) - As Introduced:  February 22, 2013

                                  PROPOSED CONSENT
           
          SUBJECT  :  Civil Discovery: Motion to Compel Further Response

           KEY ISSUE  :  Should the provisions of the Civil Discovery Act  
          relating to the time in which motions to compel further response  
          must be filed be amended to clarify that the time begins to run  
          upon receipt of a  verified  response?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal. 

                                      SYNOPSIS

          Under the Civil Discovery Act, parties to a civil dispute may  
          request relevant information from the other party by a variety  
          of means, including written interrogatories, demands for  
          inspection or production of documents, and requests for  
          admissions.  Generally, the party that receives the request must  
          serve the requesting party with a response within 30 days, and  
          the response must be verified - that is, signed under oath.   
          Once the response has been served, the requesting party - if the  
          response is somehow evasive or incomplete - may file a motion  
          with the court to compel a further response.  This motion must  
          be made within 45 days of service of the response or the right  
          to compel a further response is waived.  This bill, which is  
          sponsored by the Conference of California Bar Associations,  
          would clarify that the 45-day clock does not begin to run until  
          service of a verified response.  The existing statute states  
          that the clock begins upon service of a "response," without the  
          adjective "verified."  Given that existing law (including case  
          law) already requires that a response must be signed under oath,  
          or verified, in order to be effective, one might argue that it  
          is already implicit that the 45-day clock would only commence  
          upon service of a verified response.  To eliminate any  
          ambiguity, this bill would simply insert the word "verified"  
          before the word "response" in the relevant Code sections that  
          require the 45-day period for filing a motion to compel a  
          further response.  Although the word "verified" is not defined  








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          in the bill or in statute, it is a term of art that is used in  
          multiple other places of the Code of Civil Procedure to indicate  
          a pleading that is signed under oath.  There is no known  
          opposition to this non-controversial bill. 
           
          SUMMARY  :  Provides that the existing requirement that a motion  
          to compel a further response must be filed within 45 days of the  
          service of a response or supplemental response, begins to run  
          after service of a verified response or supplemental verified  
          response. 

           EXISTING LAW  : 

          1)Sets forth, under the Civil Discovery Act, the scope,  
            procedures, and timeframes by which parties to a civil dispute  
            may conduct pretrial discovery, including discovery by written  
            interrogatories, requests for admissions, and demands for  
            document production.  (Code of Civil Procedure Section  
            2016.010 et seq.)

          2)Requires, unless there are grounds for an objection, that the  
            party to whom a discovery request is made must serve the  
            response to the requesting party within 30 days after service  
            of the discovery request, and specifies that such response  
            must be signed by the responding party under oath, unless the  
            response contains only objections.  (Code of Civil Procedure  
            Sections 2030.250, 2030.260, 2031.250, 2031.260, 2033.230,  
            2033.240.) 

          3)Authorizes the propounding (or requesting) party, upon receipt  
            of a response to written interrogatories, a demand for  
            document production, or requests for admissions, to move for  
            an order compelling a further response, as specified.   
            Provides that unless notice of this motion is given within 45  
            days of the service of the response, or any supplemental  
            response, as specified, then the propounding party waives any  
            right to compel a further response.  (Code of Civil Procedure  
            Sections 2030.300, 2031.310, and 2033.290.) 

           COMMENTS  :  Under the Civil Discovery Act, each party to a civil  
          dispute may request that the other party turn over certain  
          information that may lead to admissible evidence.  The discovery  
          requests may take many forms, including oral depositions,  
          written questions or interrogatories, demands for inspection or  
          production of documents, or requests for admissions.  Once the  








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          requesting party has served the request, the responding party  
          typically has thirty days to either serve a response to the  
          requesting party or make an objection that explains why the  
          requested information is not discoverable.  If the requesting  
          party believes that the response is not complete, he or she may  
          seek additional information by filing a motion to compel further  
          response.  This motion must be made within 45 days of the  
          service of response.  Existing law requires that the response to  
          request must be signed under oath.  Given that clear requirement  
          that the response must be signed under oath, the courts have  
          held that unsigned or "unsworn responses are tantamount to no  
          responses at all."  (Appleton v. Superior Court (1988) 206 Cal.  
          App. 3d 632.)  Yet the sections of the Civil Discovery Act  
          dealing with motions to compel a further response state that the  
          motion must be filed within 45 days of service of the "response"  
          - it does not expressly say within 45 days of the "signed" or  
          "verified" response.  According to the author and sponsor - the  
          Conference of California Bar Associations - this creates an  
          ambiguity as to whether the 45-day clock begins to run with  
          service of any response or only with service of a response that  
          has been signed under oath, or verified.  Presumably, the 45-day  
          period would only start after receipt of a sworn response, given  
          that a necessary precondition for serving the response;  
          according to the author and sponsor, this is the understanding  
          of most practitioners.  This bill seeks to remove any ambiguity,  
          however, by clearly stating that the 45-day clock begins to run  
          after service of a verified response.  (Although the term  
          "verified" is not defined in this bill, nor apparently anywhere  
          else in the Code, it is a standard term of art used elsewhere in  
          the Code of Civil Procedure and is generally understood to mean  
          a pleading signed under oath.)  

           ARGUMENTS IN SUPPORT  :  According to the author, the "purpose of  
          the legislation is to help decrease abuses of the discovery  
          process."  The author contends that the "only way that discovery  
          can work effectively is if responses to discovery demands are  
          made under penalty of perjury.  However, it currently is not  
          clear whether a propounding party is at risk of losing his right  
          to compel further responses if he chooses to wait for promised  
          verifications.  The author contends that most practitioners  
          abide by the rule that has been articulated by the courts: an  
          "unsworn response is tantamount to no response at all."   
          However, the author claims, "the law in this area simply is not  
          clear, which allows for attempted game-playing by some  
          practitioners . . . It should be clear that the time for a  








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          motion to compel does not begin to run until the [responses]  
          have been verified.  AB 1183 would accomplish that objective."

          The California Chamber of Commerce and the Civil Justice  
          Association of California (CJAC) support this bill because it  
          will "provide clarity regarding when the 45-day deadline begins  
          to accrue in order to file a motion to compel further responses  
          during the discovery process, thereby giving clear guidance to  
          both parties in civil litigation."  The Chamber and CJAC claim  
          that even though existing law requires the responding party to  
          serve "verified" responses under oath in order to affirm that  
          the responses are correct, some parties serve unverified  
          responses to satisfy the 30-day deadline and then provide the  
          verification thereafter.  Existing law, the Chamber and CJAC  
          argue, creates an ambiguity about whether the 45-day clock  
          begins to run "upon receipt of any response or upon receipt of a  
          verified response."  AB 1183, they claim, will resolve this  
          ambiguity by clarifying that the clock begins to run upon  
          receipt of the required verified response. 

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Conference of California Bar Associations (sponsor)
          California Chamber of Commerce
          Civil Justice Association of California 

           Opposition 
           
          None on file 
           
          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334