Motions by Defendant ELDER DDS FOUNDER HOLDINGS, INC. to Compel Plaintiffs’ Further Discovery Responses and for Sanctions
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Case No. FCS059541
Motions by Defendant ELDER DDS FOUNDER HOLDINGS, INC. to Compel Plaintiffs’ Further Discovery Responses and for Sanctions
Despite the claims of Plaintiffs in their oppositions, EDFHI’s motions were timely filed.
Absent a stipulation confirmed in a writing to extend the statutory deadline for filing a motion to compel further responses to interrogatories, C.C.P. §2030.300(c) requires such a motion to be filed within 45 days of the date of service of the responses.
Plaintiffs’ counsel served responses to the subject form and special interrogatories (and the accompanying requests for admissions) by electronic service sent to EDFHI’s counsel on March 25.
Under C.C.P. §1010.6(a)(3)(B), electronic service extends the deadlines for taking action on served documents by two court days.
Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days . . . .
The 45th day after the electronic transmission of the responses fell on Saturday May 9. Two court days after that day was (Tuesday) May 12, the day that EDFHI filed these motions.
Thus, the motions are timely.
Despite the claims of Plaintiffs in their oppositions that EDFHI’s volume of interrogatories was unjustified, Plaintiffs chose to provide responses rather than to move for a protective order. By doing so, they have thus waived any such arguments. C.C.P. §2030.040(a) [special interrogatories]; §2033.040(a) [requests for admissions].
Nevertheless, the court denies all of these motions in their entirety.
Prior to filing any motions to compel further responses to interrogatories, the moving party must engage in meet and confer efforts to try to resolve the disputes. C.C.P. §2030.300(b)(1), requiring a motion to compel further responses to interrogatories to include a meet and confer declaration under C.C.P. §2016.040.
C.C.P. §2016.040(a) requires a meet and confer declaration to “state facts showing a reasonable and good faith attempt either in person, by telephone, or by videoconference, to informally resolve each issue presented by the motion.”
This statute, as well as C.C.P. §2023.010(i), was changed effective January 1, 2026, to specify those particular methods of communication.
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The trial court has discretion in determining whether adequate meet and confer efforts preceded the filing of the motion. Obregon v. Superior Court (1998) 67 Cal.App.4th 424 [factors to be considered include the complexity of the discovery issues, the past history of the counsel on prior disputes, and to a certain extent, the judge's gut feeling; sending one brief letter 13 days prior to the deadline to file a motion to compel further responses did not constitute a sufficient "meet and confer" attempt].
The purposes behind the meet and confer requirement are to force the parties to reexamine their positions, and to narrow their disputes to the “irreducible minimum” before asking the court to resolve them. Edmon & Karnow [Weil & Brown], Civil Procedure Before Trial (The Rutter Group 2026), §8:1159, p. 67; See also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281, quoting Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 [“’informal resolution’ of discovery disputes ‘entails something more than bickering with (opposing counsel).’ Rather, the statute ‘requires that there be a serious effort at negotiation and informal resolution.’”]
The leading secondary source suggests that sending one even detailed letter might not be enough:
PRACTICE POINTERS RE “REASONABLE ATTEMPT”: The following should satisfy the “reasonable attempt” requirement. They should also help position you to obtain monetary sanctions if your motion to compel is granted; or, if you lose, to resist sanctions on the basis that there was “substantial justification” for your motion.
• First, send a letter: Your letter should be a “script” for the arguments you plan to make on the motion. For each item in dispute, describe the deficiencies in the responses, and cite the authorities which establish your right to discovery. (If an issue of law is involved, it is a good idea to attach copies of the cases you are relying on.)
...
• Follow up with telephone call, video conference or personal meeting: Where there are numerous items in dispute or the matter is complicated, a mere exchange of letters is not likely to resolve anything. A “reasonable and good faith” attempt may require you to seek a meeting or telephone conference with opposing counsel. Face-to-face meetings are usually more productive than telephone conferences (due to interruptions, lack of preparation, etc.). You can use your letter as the agenda for the meeting.
• Be prepared to give and take: Allowing opposing counsel to “score some points” usually improves your chances to resolve the dispute. So, be willing to capitulate on less important items in order to obtain discovery on the more important. A good faith effort to resolve the dispute will enhance your position if a motion becomes necessary.
• Offer a compromise: If there is a middle ground and one party offers a compromise while the other maintains an all-or-nothing position, the court may adopt the compromise as being more reasonable. Even if you don't get your compromise, the court may find that you acted with substantial justification and not assess sanctions.
• Follow up with confirming letter: Immediately following the telephone conference or meeting, send a letter to opposing counsel stating which items in your original letter have been resolved and which have not; and if further responses have been promised, the date on which they are due. Without such a follow-up letter, your opponent may deny whatever agreements were reached. If the case goes to court, the law and motion judge will never know for sure who to believe (impairing your chances for obtaining sanctions).
• Provide a detailed declaration on your motion to compel: Your declaration should contain each fact essential to the court's understanding of your motion and request for sanctions. Edmon & Karnow [Weil & Brown], Civil Procedure Before Trial (The Rutter Group 2026), §8:1163, pp. 69-71.
The meet and confer efforts by EDFHI’s counsel consisted solely of two emails.
The first, sent in late March, just a few days after the electronic transmission of Plaintiffs’ responses to the discovery, can best be described as a “thought piece” by EDFHI’s counsel. While it made some common-sense arguments as to why the discovery in general was necessary, and why Plaintiffs’ responses were inadequate, it cited no statutes or cases to support any of its arguments. It also failed to identify any specific responses at issue by number (the only reference to any interrogatory by number was to Form Interrogatory 17.1, but not to any specific admissions request response encompassed within Plaintiffs’ responses to that form interrogatory). Finally, the tone of the email, while polite, was insistent on further responses within 7 days, and indicated no willingness to give and take, and offered no middle ground compromises.
The second email, sent two weeks later (mid-April), simply noted the lack of any response to the first letter, and set a new deadline five days from that email or he would file motions and request attorneys fees.
Tellingly, in his request for sanctions, EDFHI’s lead counsel estimated the amount of time he spent on meet and confer efforts, as well as revising the motion papers drafted by an associate, and working on his supporting declaration, as 0.3 hours (i.e., 18
minutes). While the court admires his honesty, and his restraint in billing time, it also shows he spent very little time on meet and confer prior to filing these motions.
A party responding to interrogatories is required to provide a response as complete and straightforward as the information reasonably available to that party permits, and to admit the lack of personal knowledge to respond fully to an interrogatory.
C.C.P. §2030.220 states:
(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.
(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.
It is not proper to give evasive answers to specific questions posed in interrogatories.
False or evasive answers improper: “Parties must state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” [Scheiding v. Dinwiddie Const. Co. (1999) 69 CA4th 64, 76, 81 CR2d 360, 368 (internal quotes omitted); see CCP § 2023.010(f)—evasive response is ground for sanctions (¶ 8:1920)]
• Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” [Deyo v. Kilbourne (1978) 84 CA3d 771, 783, 149 CR 499, 509]. Edmon & Karnow [Weil & Brown], Civil Procedure Before Trial (The Rutter Group 2026) §§8:1048 and 8:1048.1, p.
38.
Plaintiffs’ common response to all of the interrogatories at issue failed to identify any facts, witnesses or documents specific to any of the array of theories of liability plead in their fourth amended complaints against EDFHI and many of the other defendants, except as to the joint venture theory of liability. As to the joint venture theory, those responses did include some specific information, although this information was specific to other defendants, not EDFHI. Plaintiffs identified no facts or documents that appear to have involved EDFHI specifically.
While the court denies these motions at this time, it does so with leave to refile within 45 days of this hearing, pending more complete meet and confer efforts.
The court finds that neither side’s conduct warrants the imposition of sanctions against the other side.
C.C.P. §2030.300(d) requires the court to impose sanctions against the party losing on a motion to compel further responses to interrogatories, unless it finds that this party “acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
Although Plaintiffs nominally qualify as the prevailing party on these currently denied motions, the court finds other circumstances make the imposition of sanctions against EDFHI unjust. Here, Plaintiffs’ counsel failed to respond to either of the two meet and confer emails that preceded the filing of these motions.
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