Motion for Summary Judgment and/or Adjudication
2024-01428549 Code Civ. Proc., § 2031.010(a) provides that “[a]ny party may obtain discovery ... 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.”
The motion is brought pursuant to Code Civ. Proc., § 2031.310, which states in part, “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand...” (Emphasis added.)
Defendant acknowledges in its motion that it never served a notice/request for inspection pursuant to Code Civ. Proc., § 2031.010 et seq. (Rabin Decl., ¶ 6.) Despite this, Defendant complains that Plaintiff’s counsel has not produced the subject vehicle for inspection and seeks to compel the same.
Because Defendant is seeking the inspection, the onus is on Defendant to propound an actual inspection demand per the code on Plaintiff.
Code Civ. Proc., § 2031.030 specifies the form and content of the demand, and § 2031.040 prescribes the method for service. While this concerns inspection of a vehicle, as opposed to documents, the procedure is the same.
The motion is denied. Given that Defendant never served an inspection demand, there is nothing to compel a response to, under Code Civ. Proc., § 2031.310.
Plaintiff shall give notice.
7 Fisher vs. Ford Motor Company
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2024-01450044 Motion for Summary Judgment and/or Adjudication
Defendant Ford Motor Company’s motion for summary adjudication on the first, second, third, and sixth causes of action asserted against it in plaintiff Jeffrey Fisher’s first amended complaint (“FAC”) is denied. Defendant Lincoln South Coast’s motion for summary judgment on the fifth cause of action for negligent repair asserted in the FAC – the only cause of action directed against Lincoln South Coast – is denied.
Purportedly, the motion for summary adjudication and judgment was personally served on Plaintiff’s counsel. But the only proof of service provided is by an employee of Defendants’ counsel who arranged for
such service but did not do it herself. [See POS at ROA #86.] This is insufficient.
Service may be made on a party’s attorney by leaving the papers with a receptionist or anyone in charge of the office. If there is no one with whom to leave the papers, they may be left in a conspicuous place in the office between the hours of 9:00 a.m. and 5:00 p.m. [CCP § 1011(a); see National Advertising Co. v. City of Rohnert Park (1984) 160 CA3d 614, 618-619, 206 CR 696, 698] (a) [9:85.1] Proof of service: A declaration of personal service is required by the person delivering the documents.
FORM: Proof of Personal Service —Civil (Judicial Council form POS-020). ➪ [9:85.2] PRACTICE POINTER: If you are going to use a messenger to serve documents on opposing counsel or parties, the proof of service must be by the messenger. A declaration signed by a secretary who gave the papers to the messenger is hearsay and not sufficient. For the same reason, a declaration by the attorney (e.g., “I caused to be delivered by hand”) is likewise insufficient. If you are relying on personal service, the person who actually served the document must sign the proof of service.
Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-B, §§ 9:85-85.2.
The proof of service indicates that “if required” the proof of service by the messenger will be filed. It is required. But it has not been filed. Proof of service is to be filed no later than five court days before the hearing. CRC 3.1300(c).
Plaintiff has not responded to the motions, which also raises questions about service.
Accordingly, in the absence of proof of service of the motion on Plaintiff and any response by Plaintiff showing that he was served, the motion for summary adjudication and summary judgment is denied.
Moving party to give notice.
8 Grace vs. CBRE Capital Markets, Inc Motion to Strike Motion for Summary Adjudication