BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2013-2014 Regular Session AB 1183 (Jones) As Introduced Hearing Date: June 4, 2013 Fiscal: No Urgency: No RD SUBJECT Civil Discovery: Motion to Compel Further Response DESCRIPTION Existing law provides that upon receipt of a response to certain discovery requests, the party that requested the response may move to compel further response under specified circumstances. That motion must be brought within 45 days of service of the response or the party's right to compel a further response is waived. This bill would clarify that the 45-day time period begins only after service of a verified response. BACKGROUND Discovery is the formal exchange of evidentiary information and materials between parties to a pending action. Generally, California's Civil Discovery Act permits any party to a civil action to obtain discovery regarding any matter, not privileged, that is relevant to the subject matter in the pending action or to the determination of any motion made in that action, if the matter either is admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Under that Act, discovery can be obtained by inspecting documents, electronically stored information, tangible things, and land or other property in the possession of any other party to the action. (See Code Civ. Proc. Sec. 2017.010.) Primary devices to conduct discovery include interrogatories, depositions, requests for admissions, and requests for production. (more) AB 1183 (Jones) Page 2 of ? Under existing law, the party who receives an interrogatory, demand for inspection, copying, testing or sampling of documents, or request for admission, must respond to the request within 30 days and must verify their response (or, in the case wherein only objections to the request are made, their attorney must verify the response). Separately, existing law provides that upon receipt of a response to a party's request for interrogatories, production of evidence, and admissions, the requesting party may move to compel further response under certain circumstances, such as where the response was incomplete or evasive. The requesting party, however, must make the motion to compel further response within 45 days of service of the response or supplemental response to their request, or else will be deemed to have waived any right to make this motion. (See Code Civ. Proc. Secs. 2030.300, 2031.310, 2033.290.) This bill, sponsored by the Conference of California Bar Associations, seeks to clarify that the 45-day limit on a party's ability to make a motion to compel further response begins to run only upon receipt of a verified response or verified supplemental response. CHANGES TO EXISTING LAW Existing law , the Civil Discovery Act, sets forth the scope, procedures, and timeframes by which parties may conduct discovery. (Code Civ. Proc. Sec. 2016.010 et seq.) Existing law , the Civil Discovery Act, authorizes a party to a civil action to obtain discovery, as specified, by inspecting documents, electronically stored information, tangible things, and land or other property in the possession of any other party to the action. (Code Civ. Proc. Sec. 2017.010.) Existing law provides that any party may obtain discovery as follows: By propounding to any other party to the action written interrogatories to be answered under oath. (Code Civ. Proc. Sec. 2030.010(a).) By inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. (Code Civ. Proc. Sec. 2031.010(a).) By a written request that any other party to the action admit AB 1183 (Jones) Page 3 of ? the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties. (Code Civ. Proc. Sec. 2033.010(a).) Existing law requires a party to whom the above requests are directed to respond within 30 days after service of requests, as specified, unless the court has shortened or extended the time for response. (Code Civ. Proc. Secs. 2030.260(a), 2031.260(a), 2033.250(a).) Existing law requires that the party to whom the above requests are directed sign the response under oath, unless the response contains only objections, in which case the attorney must sign the response under oath. (Code Civ. Proc. Secs. 2030.250(a), (c); 2031.250(a), (c); 2033.240(a), (c).) Existing law provides that upon receipt of a response to the above discovery requests, the requesting party may move for an order compelling further response to the demand under specified circumstances. (Code Civ. Proc. Secs. 2030.300(a), 2031.310(a), 2033.290(a).) Existing law provides that unless notice of a motion to compel further response is given within 45 days of service of the response, or any supplemental response, or on or before any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel a further response to the demand. (Code Civ. Proc. Secs. 2030.300(c), 2031.310(c), 2033.290(c).) This bill would amend the above sections to instead specify that unless notice of the motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel a further response to the demand. COMMENT 1. Stated need for the bill According to the author: AB 1183 (Jones) Page 4 of ? The purpose of [this bill] is to help decrease abuses of the discovery process. 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. There is [case law] authority that an unsworn response is tantamount to no response at all (see Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636), which many practitioners hold by. However, the law in this area simply is not clear, which allows for attempted games-playing by some practitioners. AB 1183 would amend Code of Civil Procedure [Secs.] 2030.300, 2031.310, [and] 2033.290 to specify that the time to bring motions to compel further responses to requests for responses to interrogatories, for document production[,] and for admissions, begins to run only after verified responses are received. 2. Case law generally recognizes that the required response is a verified response This bill would specify that the 45-day timeframe in which a party may bring a motion to compel further responses to its discovery requests begins upon service of a verified response or supplemental verified response. The sponsor of this bill, the Conference of California Bar Associations (CCBA), explains that, "[t]he Discovery Act requires the verification (i.e. attestation by party under penalty of perjury as to truth and correctness) of all responses to interrogatories ([Sec.] 2030.250), demands for inspection ([Sec.] 2031.250), and requests for admission ([Sec.] 2033.240). [ . . . ] However, it is common practice for parties to serve unverified responses to these discovery demands, with a promise to provide verifications 'as soon as possible.' If responses to these discovery requests are, in the eyes of the propounding party, evasive or incomplete, or consist of meritless objections, the requesting party may move for an order compelling further response. If the requesting party does not make this motion within 45 days of receipt of the original response, he/she loses the right to compel further response." The CCBA and other proponents of the bill argue that the law is ambiguous as to when the 45-day clock for making the motion to compel further response begins to run in such a scenario-namely, AB 1183 (Jones) Page 5 of ? whether the clock begins after the party receives the unverified response with the promise of future verification, or only after the verifications are received. This bill would resolve any ambiguity in the law by specifying that the 45-day period in which to file a motion to compel does not begin to accrue until service of a verified response is made. Thus, if the response if served before verification, the 45-day period would not yet begin-it would begin upon service of the verification of the previously supplied response. The author and sponsor reference several cases, including Appleton v. Superior Court (1988) 206 Cal.App.3d 632, to demonstrate that the bill is consistent with existing law. In Appleton, after numerous attempts to obtain more complete responses and a verification, the petitioner in that case sought sanctions for noncompliance with his discovery request because the responding party submitted a single unverified answer purporting to answer all of the requested admissions. Because "[u]nsworn responses are tantamount to no responses at all," and because in that case the response was provided without verification, the Court of Appeal held that sanctions were mandated. (Id. at 635-636, internal citations omitted.) Thus, while Appleton did not specifically address whether verification is necessary to begin accrual of the 45-day period by which a party can bring a motion to compel further response, the case does reflect the proposition that a party's answer to a discovery request must be verified to constitute a "response." The Code of Civil Procedure itself reflects the notion that the required response from a party facing a discovery request is not only a timely response, but a verified response, insofar as it requires a party at whom a discovery request is directed (or his or her attorney in certain circumstances) to sign the response under oath, within 30 days of the request. (See Code Civ. Proc. Secs. 2030.250, 2031.250, 2033.240, 2030.260, 2031.260, 2033.250.) As such, given that verification is a critical element of the required response, the requesting party arguably should not be required to take any action until service of a verified response. Accordingly, it would appear appropriate that the time period by which they must take any actions upon that response-here, the motion to compel response-begin to accrue only upon service of the verified response, as required by this bill. AB 1183 (Jones) Page 6 of ? Support : California Chamber of Commerce; Civil Justice Association of California Opposition : None Known HISTORY Source : Conference of California Bar Associations Related Pending Legislation : None Known Prior Legislation : None Known Prior Vote : Assembly Floor (Ayes 77, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) **************