Carter v. Superior Court

Opinion

WHITE, P. J.

These petitioners raise the novel question of whether a party who has missed the deadline for compelling inspection of documents

[996]

under Code of Civil Procedure section 2031

1

is barred from requesting that the same documents be brought to a deposition (§ 2025). We conclude that the Legislature has provided two procedures for the same kind of discovery and that absent a finding of burden under section 2019, subdivision (b), or a similar section, failure of one procedure does not bar use of the other.

Petitioners are plaintiffs in an action against their insurer for bad faith refusal to settle a claim. On December 30, 1988, they served on real party in interest a demand for inspection of the complete claims file for the case. Real party objected on attorney/client and attorney work product grounds. For reasons we need not explain, petitioners’ motion to compel further responses was filed beyond the 45-day limit set by section 2031, subdivision (/). The court denied their motion as untimely.

Petitioners then tried to secure the requested documents by another demand for inspection and by a motion to reconsider the first ruling. The court denied these motions as well.

Next, petitioners noticed the deposition of the custodian of records for real party, requesting that the deponent bring the previously withheld documents. Real party moved for a protective order, citing

Professional Career Colleges, Magna Institute, Inc.

v.

Superior Court

(1989) 207 Cal.App.3d 490 [255 Cal.Rptr. 5], for the proposition that a litigant may not obtain through a second discovery request what has been lost by untimely prosecution of a first request. After hearing, the court granted the protective order. This petition followed.

Preliminarily, we note that this petition meets the standards for challenging a discovery order by extraordinary writ. It raises a question of first impression of general importance to the bar and bench, and the answer we give will provide guidance for future cases. (See