Motion to compel further responses to set one requests for production (RFP)
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TENTATIVE RULING FOR August 11, 2026 Department S22 – Judge David Driscoll This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.
You may appear in person at the hearing although remote appearance by CourtCall is preferred during the Pandemic. (See www.sb-court.org/general-information/remote-access). If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-22) at (909) 521-3529 or the Administrative Assistant (909) 708-8756, who prepared the ruling.
If you (or both parties) wish to submit on the Tentative, notify the other party and call the department by 4:00 pm the day before and your appearance may be excused unless the Court orders you to appear.
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UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE RULING. ____________________________________________________________________________
DOE v. SUNER, ET AL.
____________________________________________________________________________ TENTATIVE RULING
This is an employment and wage and hour litigation. On May 24, 2023, Plaintiff Jane Doe filed her Complaint against Defendants Allas, Inc., Mieux, LLC, Sergio Suner, Gabriella Aiello, and Kevin Suner (Defendants) alleging 26 causes of action for various Fair Employment and Housing Act claims, Labor Code wage and hour violations, and multiple tort claims.
Since 2011, Defendants employed Plaintiff as a telemarketer. Defendants required Plaintiff to work six days per week, denied her meal and rest periods, and failed to pay her overtime wages. It is alleged that defendant Sergio Suner sexually harassed Plaintiff since the start of her employment.
Now before the court is Defendant Kevin Suner’s (Suner) motion to compel Plaintiff to provide further responses to set one requests for production (RFP). Plaintiff opposes and Suner replies.
Compelling Further Responses to Production Requests
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A party may move to compel a further response to production demands if it deems a statement of compliance with a demand is incomplete, or the representation of inability to comply is inadequate, incomplete or evasive, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)
The moving party must set forth facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).) Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a factspecific showing of relevance. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland); Glenfed Dev. Corp. v. Super. Ct. (1997) 53 Cal.App.4th 1113, 1117 (Glenfed).) If "good cause" is shown by the moving party, the burden shifts to responding party to justify any objections made to the production requests. (Kirkland, supra, 95 Cal.App.4th at p. 98; Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 (Coy).)
Procedurally, notice of the motion must be given within 45 days of service of the verified response or before any later date agreed upon in writing. (Code Civ. Proc., § 2031.310, subd. (c).) The motion must be accompanied by a declaration stating facts showing a reasonable and good faith attempt to resolve informally the issues presented by the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) Separate statements are required for motions to compel further responses to production demands. (Cal. Rules of Court, rule 3.1345(a)(3).)
Timeliness
Plaintiff served her verified responses to Suner’s set one RFPs on April 20, 2026, by U.S. mail. (Suner Decl., ¶4, Exh. B.) Forty-five days later fell on Thursday, June 4, 2026. Accounting for five extra calendar days for U.S. mail service, Suner’s deadline to bring a motion to compel further responses fell on June 9, 2026. (Code Civ. Proc., §§ 1013, subd. (a), 2031.310, subd. (c).) There is no evidence that the parties agreed in writing to extend the deadline to bring the motion.
Suner’s motion and exhibit papers were filed with the court on June 5, 2026, without a proof of service. Thirteen days later, on June 18, 2026, Suner filed a proof of service for the motion indicating it was served by U.S. mail that day, 6/18/26.
Filing a document with the court is not equivalent to giving notice. Written notice of a motion is required. (Code Civ. Proc., § 1005, subd. (a)(13).) Unless otherwise ordered or specifically provided by law, all moving papers shall be served (and filed) and “shall be a copy of the papers filed or to be filed with the court.” (Code Civ. Proc., § 1005, subd. (b).) This statutory language discloses the difference between filing a motion with the court versus serving notice of it upon all parties in the litigation.
CCP §2031.310(c) states that failure to give notice of the motion within 45 days of service of verified responses to the requests for production constitutes a waiver of the right to compel further responses. Merely because Suner filed the motion with the court on 6/5/26 does not establish that he served it upon Plaintiff on that date. Instead, Suner’s proof of service shows 6/18/26 service. The motion is untimely. Parenthetically, defendant also argues the 45-day deadline should be calculated from the date that plaintiff re-served the responses by email on April 30, 2026, which by defendant’s calculation would put the 45-day deadline for the motion at June 14, 2026.
However, as discussed above, defendant did not serve the motion until 6/18/26, and therefore the giving of written notice was still untimely and constitutes a waiver of the right to bring the motion pursuant to CCP §2031.310(c).
The timing deadline on motions to compel further responses is mandatory and a court may not entertain a belated motion to compel. (Vidal Sassoon, Inc. v. Super. Ct. (1983) 147 Cal.App.3d 681, 683 [construing former Code of Civil Procedure section 2030 regarding interrogatories].) An untimely motion to compel discovery constitutes a waiver of any right to compel a further response and such statutory provisions have been held at least “quasi-jurisdictional” in the sense that they divest the court of authority to rule on
untimely motions to compel other than to deny them. (Sexton v. Super. Ct. (1997) 58 Cal.App.4th 1403, 1408-1410 (emphasis in original).) Thus, the court’s only authority when confronted with Suner’s untimely motion is to deny it.
Separate Statement
Even if the motion was timely, another basis exists to deny the motion: failure to supply an appropriate separate statement. A separate statement provides all the information necessary to understand each discovery request and all the responses to it that are at issue; the separate statement must be full and complete so that no person is required to review any other document to determine the full request and the full response. (Cal. Rules of Court, rule 3.1345(c).)
A trial court is “well within its discretion to deny the motion to compel discovery” for a party’s failure to comply with the procedural rules regarding separate statements. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 (Mills).) In Mills, which construed the separate statement rule in its prior numbering and incarnations as former rules 335 and 3.1020, the moving party plaintiffs did not set forth the opposing party’s full response to each interrogatory and production request. (Id., at pp. 892-893.) It was insufficient for plaintiffs to attach copies of the opposing side’s actual discovery responses and urge the court to look there for the full responses. (Id., at p. 893.) The procedural violation was sufficient to exercise discretion to deny the motion to compel. (Id., at p. 892.)
Here, the separate statement deficiency is more absolute than the one identified in Mills because, in the first instance, Suner did not supply any statement at all, which is proper grounds to deny the motion.
Request for Monetary Sanctions
As a pro se litigant, Suner does not seek attorney’s fees, but he does request sanctions to cover his costs associated with making the motion. However, because the motion is unsuccessful, awarding such sanctions is not available.
TENTATIVE RULING
Defendant Kevin Suner’s motion to compel further responses to set one requests for document production is denied as untimely and upon the further grounds that Defendant failed to supply the required separate statement. The request for sanctions is denied.