BILL ANALYSIS Ó
AB 1183
Page 1
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