I have been served with a motion to compel discovery responses. The motion was "timely" filed with the court within 45 days of my responses. Rule 3.1110(1) for notices states that the first page of a notice must "specify the date, time, and location...of any scheduled hearing". The proof of service and FL-300 I was served lacked this information. I argued that the motion was not timely because I was not served properly (notice of the motion was missing date/time and location of the hearing). The other side argued their motion was timely because it was filed within the 45 days. Is it the filing date or the proof of service date that determines timeliness of a motion to compel discovery? If it is proof of service, was their first (timely but incomplete) proof of service even valid?This discovery was for production of documents and responses to interrogatories. It is a motion to compel further responses. They finally sent me a conformed proof of service and FL-300 containing the date and time of the hearing about ten days later, but this was already past the 45 days to compel.
The filing date of the motion controls. Remember to consider the method of extension pursuant to ccp 1013. It is very likey that the court (especially in family law courts) will allow the motion to stand and provide you additional time by way of a short continuance to respond to the motion.
To successfully challenge defect in service you should make an objection to service only and do not argue on the merits of the motion. Have a court reporter at the hearing and hope for the best.
Consult an attorney to assist you further.
First of all, there is a difference between a "motion to compel responses" and a "motion to compel further responses." A motion to compel responses is the proper motion when a party fails to respond to the discovery at all. There is no 45 day time limit to a motion to compel. In that situation, the argument would be about whether or not responses were provided.
A motion to compel further responses is what a party files when they have served discovery, received responses, but think that the responses are too general, or that any objections in the responses lack merit. Those types of motions require notice to be given within 45 days of the response. (There is an extension that applies based on how the response was served.)
As to the discovery itself, it would help if you were more specific as to whether this was for interrogatories, an inspection demand, or something else.
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