BILL ANALYSIS                                                                                                                                                                                                    






                             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.   
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          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  
                                                                      



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            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: 

                                                                      



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            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,  
                                                                      



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          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.  
                                                                      



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           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)

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