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)
**************