On October 17, 2022, the California Court of Appeal, Fourth Appellate District, Division 3, issued a decision in Golf & Tennis Pro Shop, Inc. v. Superior Court holding that interrogatory responses containing a combination of unverified factual responses and objections only trigger the 45-day clock to bring a motion to compel when the responding party serves its subsequent verifications.

Background

The Civil Discovery Act provides as follows: “Unless notice of [a motion to compel] is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (Cal. Code Civ. Proc., § 2030.300, subd. (c).) The key to starting the 45-day clock is service of a “verified response.” Notably, however, responses containing only objections do not need to be verified. (Id. § 2030.250, subd. (a).)

With this background in mind, the Golf & Tennis Court ventured to address an issue of first impression: whether service of unverified interrogatory responses consisting of both factual responses and objections start the 45-day clock under section 2030.300, subd. (c). The Court says “no.”

Relevant Facts of the Case

Plaintiffs sued Defendant Golf & Tennis Pro Shop, Inc., alleging a number of gender discrimination claims stemming from certain women-only promotions offered in Defendant’s stores. Defendant served a set of special interrogatories on Plaintiffs who responded by serving unverified factual responses and objections on February 5, 2021. Plaintiffs served their verifications 40 days later on March 17, 2021. After meet and confer efforts failed, Defendant filed a stand-alone notice of motion to compel further responses that only attacked Plaintiffs’ objections. The notice was filed on May 5, 2021 (49-days after Defendant had received Plaintiffs’ verifications). The hearing date was set for September 17, 2021. Defendant served its memorandum of points of authorities and other supporting papers before the hearing on August 23, 2021.

The trial court denied the motion to compel as untimely. In doing so, the court observed that because the motion only attacked Plaintiffs’ objections, but not their factual responses, the 45-day clock began to run as to the objections on February 5, 2021—when they were served. Consistently, the court ruled that Defendant’s notice of motion was due in late March. Because the notice of motion was not served until May 5, 2021, the notice was untimely. Separately, the trial court denied the motion because Defendant failed to include its memorandum of points and authorities and other supporting papers with its notice of motion—a requirement delineated in Code of Civil Procedure section 1010.

On Appeal, the Court of Appeal affirmed the trial court’s ruling, but for different reasons. First, the Court disagreed with the trial court that the motion to compel deadline as to Plaintiffs’ objections began to run on February 5, 2021—when Plaintiffs served their combination of unverified factual responses and objections. To the contrary, the Court held that such a combination of unverified factual responses and objections only trigger the 45-day clock under section 2030.300, subd. (c), when the responding party serves its verifications. The Court said that this was true, even if the party bringing the motion to compel was only attacking the responding party’s objections.

Second, the Court agreed with the trial court that only serving a notice of motion, i.e., without a memorandum of points and authorities and other supporting papers, does not perfect a motion to compel for purposes of the 45-day deadline. Thus, Defendant’s motion to compel was properly denied as untimely.

Finally, the Court declined to decide whether interrogatory responses that only include objections without factual responses trigger the 45-day deadline. Instead, the Court left that question for another day, and expressed its hope that the Legislature would clarify that issue before it reached the Court.

Practical Guidance and Takeaway

If you’re moving to compel further interrogatory responses where the responding party provided you with a combination of factual responses and objections, calendar your deadline 45-days from the date you receive the opposing party’s verifications. Further, be sure to include all of your supporting papers with your notice of motion, even if the Court gives you a hearing date that is several months down the line.

Separately, if you’re moving to compel further interrogatory responses where the responding party only provided objections, you should still calendar your deadline 45-days from the date you received those objections. While it remains an open question as to whether you may technically have an unlimited amount of time to notice your motion in this scenario, it would be wise to take a conservative approach until we receive further guidance from the Courts or the Legislature.