In an unlimited matter, my responses were due last week. However, I was not able to provide the responses in time because I was ill. Therefore, I sent an email to opposing counsel stating that I wanted to talk with him about the responses and requested a further extension.
This morning I received documents related to opposing counsel's motion to compel my responses and request for sanctions. It just really seems unnecessary because he seems to have spent alot of time and paper making the motion documents.
What is the best course of action to take at this point? When is the opposition due and is there a way I could avoid the entire hearing itself, perhaps by giving him what he wants? I planned on providing the responses except I just needed a little more time...
Your opposition to the motion to compel responses is due nine (9) "court" days prior to the hearing. A court date is any date the court is open for business (so you count backwards from the hearing date and do not include weekends and holidays).
A motion to compel initial responses is addressed to one or more of the following types of discovery: form interrogatories, specially drafted interrogatories, document inspection demands, and requests for admission. The governing statutes are Code of Civil Procedure §§ 2030.290, 2031.300 and 2033.280 respectively.
Failure to respond timely results in a waiver of objections. See CCP § 2030.290, 2031.300 and 2033.280. Nevertheless, the best course of action is for you to provide responses to this written discovery as soon as possible. By doing so, it is likely the motion to compel can and will be taken off calendar.
If the opposing counsel does not take the motion(s) to compel off calendar, you will need to file your timely oppositions to these motions. Your declaration in opposition to the motion(s) will provide evidence of your emails asking for a further extension of time, as well as evidence that you did respond to the discovery as soon as practicable.
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
If the opposing party declines to take the motion off calendar after you provide the responses, make sure your opposition includes not only a memorandum of points and authorities in opposition to the motion but also a declaration setting forth in detail the fact that you were ill (provide details regarding this) and that you sent an email requesting further extension. Attach a copy of the email as an exhibit to your declaration. Doing so will, among other things, increse the likelihood that the court will not impose monetary sanctions against you.
This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.
A detailed declaration from you about your illness and your request for more time, plus serving compliant responses to the discovery requests will go a long way toward blunting the force of a motion to compel. But it's not impossible that the judge would impose monetary sanctions for your untimely response and for them having to file a motion to compel, especially if opposing counsel thought you were stalling or your responses were less than compliant and you shoudl disregard for the deadlines imposed by the Code that everyone, including pro per litigants, need to respect.
Did your email seek a "meet and confer" about the discovery? Opposing counsel isn't required to have one if you had provided no responses at all, but your judge could hate it if opposing counsel refused to discuss the discovery with you at your request.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.