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Pfeister v. City of Carmel-By-The-Sea

Mar 21, 2017
H040250 (Cal. Ct. App. Mar. 21, 2017)




JOANNA PFEISTER, Plaintiff and Appellant, v. CITY OF CARMEL-BY-THE-SEA et al., Defendants and Respondents.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. M93437)

Plaintiff Joanna Pfeister appeals from a judgment of dismissal entered after the trial court imposed a terminating sanction for discovery abuses and noncompliance with court orders. She contends that the judgment must be reversed because the terminating sanction flowed directly from an order compelling further responses which was made without jurisdiction as the motion to compel was untimely. We affirm.

I. Background

In 2007, police went to plaintiff's residence to execute a search warrant in connection with her alleged brandishing of a firearm at a worker who was preparing to paint the exterior of her apartment building. Plaintiff was arrested and charged with making threats to commit a crime resulting in death or great bodily injury (Pen. Code, § 422), exhibiting an imitation firearm (Pen. Code, § 417.4), exhibiting a deadly weapon with intent to resist arrest (Pen. Code, § 417.8), and resisting arrest (Pen. Code, § 148, subd. (a)(1)). The charges were ultimately dismissed.

In 2008, plaintiff sued the City of Carmel-by-the-Sea (the City), its police department, the police chief, and nine other members of the department in their individual and official capacities. Plaintiff's operative verified amended complaint alleged 32 causes of action, 18 of which remained after defendants successfully moved for judgment on the pleadings. The surviving causes of action included abuse of process, false arrest, false imprisonment, assault and battery, invasion of privacy, vandalism, intentional and negligent infliction of emotional distress, and numerous alleged violations of plaintiff's civil and constitutional rights.

In September 2011, defendants propounded requests for admissions (RFAs), form and special interrogatories, and requests for production of documents (RPDs). Sometime in mid-November, plaintiff served responses without proofs of service. Defendants found the responses inadequate. In December 2011, they sent plaintiff an eight-page letter detailing the deficiencies of her initial responses.

Plaintiff ignored defendants' repeated efforts to meet and confer until January 4, 2012, when she spoke with their counsel by telephone. In a letter dated the following day, defendants' counsel confirmed plaintiff's agreement to respond to the meet and confer letter "on or before January 27, 2012."

On January 27, 2012, defendants received plaintiff's supplemental responses in the mail from Nevada. There were no proofs of service. Defendants found the supplemental responses inadequate. On March 15, 2012, their counsel e-mailed plaintiff in a further effort to meet and confer. He attached another copy of his December 14, 2011 letter, noted that her supplemental responses "did not address the specific deficiencies discussed" in the letter, and offered to give her a further extension of time within which to respond.

On March 21, 2012, defendants filed a motion to compel further responses and for monetary sanctions. They informed the court that "all of Ms. Pfeister's discovery response dates are uncertain because she refuses to include a proof of service." They described the deficiencies of plaintiff's initial and supplemental responses in four accompanying separate statements. (Cal. Rules of Court, rule 3.1345.) Her supplemental responses to their RPDs, for example, failed to provide individualized responses or to specify which documents were responsive to which request. Instead, she attached some documents in bulk and listed others that had been attached to her 566 RFAs to one of the defendant officers.

Defendants complained that plaintiff's supplemental responses to their RFAs consisted of meritless objections and "volumes" of evasive boilerplate and that her supplemental answers to their form and special interrogatories were incomplete, evasive, and nonresponsive. Special interrogatory 29, for example, asked her to "describe with specificity, including dates and approximate dates and the circumstances, surrounding incidents prior to August of 2007 where people came to your door impersonating police officers." Plaintiff's initial response was, "I don't presently recall all the details." Her supplemental response repeated the initial response and added a page of qualifying language.

"Plaintiff has not completed her investigation of the facts relating to this matter and this discovery is continuing. Accordingly, the following responses are based, and therefore necessarily limited by the records and information presently available and thus far discovered in the course of preparing these responses. Plaintiff reserves the right to produce at trial and make reference to any evidence, facts, documents or information not yet discovered or the relevance of which has not been identified. [¶] Please note that responding party has not fully completed her investigation of the facts relating to this case, has not fully completed her discovery in this action and has not fully completed her preparation for trial. [¶] These responses are based only upon such information and documents that are presently available to and specifically known to responding party and disclose only those contentions that presently occur to such responding party. [¶] Responding party anticipates that further discovery, independent investigation, legal research and analysis will supply additional facts, add meaning to new facts, as well as establish entirely new factual conclusions and legal contentions, all of which may lead to substantial additions, changes in and variations from the contentions herein set forth. [¶] The following responses are given without prejudice to responding party's right to produce evidence of any subsequently discovered fact or facts which the responding party may later recall or discover. Responding party accordingly reserves the right to change any and all answers herein as additional facts are ascertained, analyses are made, legal research is completed and contentions are made. [¶] The responses contained herein are made in a good faith effort to supply as much information and as much specification of legal contentions as is presently known but in no way should prejudice the responding party in relation to further discovery, research or analysis. [¶] None of these responses necessarily assume the existence or truth of any fact or condition asserted, inferred or implied by any of the requests. Responding party reserves the right to object to the introduction of any response hereto, or any document provided herewith, unless and until such predicate fact(s) has been produced."

Plaintiff's responses to form interrogatories were similar, as illustrated by her answer to form interrogatory 6.4. That interrogatory referred to the complaint's allegation of force "resulting in mental and physical injury, including dislocation of plaintiff's shoulder." It asked, "Did you receive any consultation or examination . . . or treatment from a HEALTH CARE PROVIDER for any injury you attribute to the INCIDENT? If so, for each HEALTH CARE PROVIDER state: a) the name, ADDRESS, and telephone number; b) the type of consultation, examination, or treatment provided; c) the dates you received consultation, examination, or treatment; and d) the charges to date." Plaintiff's initial response stated, "As a direct and proximate result of the defendant's [sic] actions, plaintiff has been injured financially, physically, in her health, strength and activity, and sustained personal emotional duress and injury as well as shock to her nervous system, including the loss of her friendship of her friends, comfort and affection, all of which injuries caused and continue to cause plaintiff great mental consternation, pain and suffering, all to her general damages in a sum to be set forth at the time of trial and within the jurisdictional limits of this Court. [¶] As a further, direct and legal result of defendant's [sic] wrongful conduct plaintiff has and will incur in the future, medical, hospital, psychotherapeutic, and other related expenses in the examination, cure and treatment of her physical, mental and emotional injuries inflicted by defendants the exact nature and extent of which are unknown at this time. [¶] That as a further, legal result of defendant's [sic] wrongful conduct, plaintiff was caused to and did suffer a loss of earnings and earning capacity, and is informed and believes and thereon alleges that she will be further incapacitated in the future as a direct and proximate result of physical, mental and emotional injuries inflicted by defendants, thus incurring future and other loss of earnings, and plaintiff will ask leave of Court to amend this Complaint to insert the exact amount thereof, when it has been finally ascertained." Her supplemental response repeated the initial response and added seven paragraphs of qualifying language. (See fn. 1, ante.)

Plaintiff opposed defendants' motion to compel on the sole ground that it was filed more than 45 days after they actually received her responses. She contended that defendants waived their right to compel further responses and that the trial court lacked jurisdiction to grant their motion. In a supporting declaration, she stated that she prepared her supplemental responses on December 25, 2011, and served them by first class mail on December 29, 2011. She attached a copy of a proof of service signed by one James J. Ismert. Plaintiff declared that "a fully licensed Process Server" had also personally served a copy of her responses on January 20, 2012. She attached a copy of a "PROOF OF DELIVERY" that purported to have been signed by one Jack H. Stern on April 5, 2012.

Defendants argued in reply that the purported proofs of service and delivery were false. They highlighted a number of irregularities in the documents, including that the Ismert proof of service referred to "RESPONSES TO DISCOVERY REQUESTS Dated December 30, 2011," whereas plaintiff's supplemental responses were dated December 25, 2011. The Ismert proof of service also stated that the responses "Dated December 30, 2011" were mailed on December 29, 2011. The belatedly-executed Stern proof of delivery did not purport to be a proof of service. It also failed to state the time of delivery or the name of the person to whom the responses were delivered.

Defendants explained that they received plaintiff's supplemental responses in the mail without any proof of service on January 27, 2012. Their counsel Jon Giffen stated in his supporting declaration that because plaintiff failed to include proofs of service, "we had no idea what day the [supplemental responses] were actually mailed. We did know that [they] were mailed from Nevada, and so we filed the [motion to compel] on March 21, 2012 -- 55 days from January 26, 2012." Giffen's cocounsel Cassie Bronson explained in her supporting declaration that she had one telephone conversation with Jack Stern and several telephone conversations with plaintiff about the timeliness of the motion to compel. In one such conversation, plaintiff "admitted that she failed to submit a [p]roof of [s]ervice" and "told me that she was 'dead in the water on this issue.' "

Plaintiff filed written evidentiary objections to portions of the Giffen and Bronson declarations, arguing among other things that Giffen's statements about his law firm's practices and Bronson's statements about what was said during her conversation with Jack Stern were hearsay. Plaintiff did not interpose any objections to her own "dead in the water" statement.

The motion came on for hearing on April 20, 2012. When it became apparent that the parties' conflicting allegations about the motion's timeliness and the alleged falsification of the proofs of service and delivery could not be decided on the papers, the court calendared an evidentiary hearing. As the court later recalled, "it was contemplated that there would be evidence, testimony from Jack Stern, Plaintiff, maybe defense counsel on the disputed issues . . . ."

At the evidentiary hearing on May 30, 2012, the trial court explained that neither the Ismert proof of service nor the Stern proof of delivery on its face supported plaintiff's argument that defendants' motion was untimely. Accordingly, it was plaintiff's burden to establish when and how she served her supplemental responses. Plaintiff failed to satisfy that burden. She did not call Stern or Ismert to testify. She produced no evidence at all. The court found the Ismert proof of service and the Stern proof of delivery defective. It overruled plaintiff's objections to Giffen's declaration, finding it sufficient "to establish a presumption that all they ever got was in the mail on January 27th, these documents; and they never received any confirmation of a proof of service until the April 5 document of Jack Stern." The court told plaintiff, "it's your burden, and you needed to bring witnesses. I offered . . . . Instead, I listened to two hours of argument, which I have to interpret as you don't think you needed an evidentiary [hearing], you wanted to argue the matter." "[T]here's no need to give further time to arguing these issues when you created the problem by defective proofs of service."

The court found defendants' evidence sufficient to support a finding that their motion was timely. Stated differently, the court accepted their assumption that the responses were mailed from Nevada on January 26, 2012, the day before they received them in the mail. The court extended the 45-day time period for moving to compel by 10 days as Code of Civil Procedure section 1013, subdivision (a) allows. The court granted the motion to compel and ordered plaintiff to provide "concise, non-evasive responses" to defendants' discovery no later than June 22, 2012. The court also imposed $2,000 in monetary sanctions to be received by defendants' counsel no later than July 23, 2012. The court's written order was filed on June 28, 2012.

Unspecified section references are to the Code of Civil Procedure. --------

Plaintiff moved for reconsideration. The motion was denied for failure to comply with the threshold requirements of section 1008, subdivision (a). Because plaintiff had not yet complied with the court's June 28, 2012 order, the court's written order denying reconsideration "FURTHER ORDERED that plaintiff . . . shall serve concise, non-evasive responses . . . by not later than November 16, 2012" and "shall pay the monetary sanctions previously ordered . . . in the amount of $2,000.00, to be received by counsel for defendants by no later than November 16, 2012."

In September 2012, defendants sought a protective order to prevent plaintiff from going forward with the 17 consecutive depositions she attempted to notice for every day between October 15 and December 10, 2012. The court issued the protective order and ordered plaintiff to pay $2,500 in monetary sanctions to the City no later than December 31, 2012.

Defendants received plaintiff's second supplemental responses to their discovery in the mail on November 19, 2012. The responses arrived without proofs of service. The second supplemental response to each individual request was prefaced with, "Set forth and delineated herein please find plaintiff's concise, non-evasive response to defendants' discovery request." Apart from that and with two insubstantial exceptions, the second supplemental responses were identical to plaintiff's supplemental responses.

Plaintiff did not pay the court-ordered sanctions. In a letter to defendants, she indicated that she would not do so until she obtained a jury award in the case.

On May 13, 2013, defendants filed a motion for a terminating sanction plus $6,737.50 in monetary sanctions and $4,500 in sanctions payable to the court. Their motion papers described plaintiff's continuing failure to provide discovery as well as her willful disobedience of the court's orders and general bad faith litigation tactics, which included lying to the court.

In opposition, plaintiff argued the merits of her complaint, complained that defendants' answer and their discovery responses were inadequate, expanded on her objections to several individual discovery requests, complained that she was "denied her right to depose all of the defendants in this case," and asserted (incorrectly) that defendants had admitted that she had not abused the discovery process and had in fact "complied in full with the Court's orders . . . ." Defendants argued in reply that plaintiff's opposition "show[ed] exactly why terminating sanctions are defendants' only just and appropriate remedy."

The trial court granted the motion for a terminating sanction. The court explained that "this is a case that's just been garnering paper over the years, and not going anywhere. There hasn't been a good-faith effort, in my opinion, to comply with discovery. No sanctions have been paid, apparently. . . . Hundreds of pages, as you say, of basically meaningless responses. I think it's time that the matter has to end. So, I will grant the motion to terminate." The court declined to impose monetary sanctions. Plaintiff filed a timely notice of appeal.

II. Discussion

The success or failure of plaintiff's appeal depends entirely on the validity of her argument that the motion to compel was untimely because defendants filed it more than 45 days after they received her supplemental responses in the mail. (§§ 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c).) Plaintiff does not challenge the trial court's findings that her discovery responses were substantively defective and that she failed to comply with the court's orders to provide concise and nonevasive responses and to pay sanctions. Nor does she challenge the court's findings that she failed to include proofs of service with her responses, that the belatedly-provided Ismert and Stern proofs of service/delivery were defective, that she failed to establish the date of service by any other means, that she mailed the responses from Nevada, and that defendants received them in the mail on January 27, 2012. The sole issues on appeal are (1) whether a party's actual receipt of discovery responses triggers the statutory 45-day deadline for filing a motion to compel and (2) whether the 10-day extension authorized by section 1013, subdivision (a) applies to responses received from Nevada by mail without proofs of service or other indicia of when they were placed in the mail.

A. Standard of Review

Both parties assert that the de novo standard of review applies here. We agree.

Discovery orders are generally reviewed for abuse of discretion. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 772 (St. Mary).) But "[w]here . . . the relevant facts are undisputed, we review a trial court's exercise of discretion as a question of law." (Toshiba America Electronic Components v. Superior Court (2004) 124 Cal.App.4th 762, 768 (Toshiba).) "And to the extent we must construe relevant discovery statutes in resolving the issues . . . , we do so de novo and without regard to the trial court's reasoning." (St. Mary, at p. 773.)

B. Timeliness

Plaintiff contends that the motion to compel was untimely because it was filed more than 45 days after defendants received her supplemental responses in the mail. The argument is contrary to the plain language of the discovery statutes.

"When the language of a statute . . . is clear and unambiguous, judicial construction is not necessary and the court should not engage in it." (Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 323.) The discovery statutes state that notice of a motion to compel further responses must be "given within 45 days of the service of the verified response, or any supplemental verified response." (§§ 2030.300, subd. (c) [interrogatories], 2031.310, subd. (c) [RPDs], 2033.290, subd. (c) [RFAs].) Thus, the plain language of the statutes establishes that the time for filing such motions runs from the date responses are served, not from the date they are received. (Ibid.)

Plaintiff maintains that the 45-day period should be deemed to have commenced when defendants received her responses because "[n]one of the [discovery] statutes specifically require the filing of a proof of service." (Italics omitted.) The argument misses the point.

The point is that the discovery statutes expressly require some contemporaneous proof of the time and manner of service. (§ 2016.050.) Section 2016.050 incorporates section 1013 into the Civil Discovery Act. Section 1013 expressly requires that "[t]he copy of the notice or other paper served by mail . . . shall bear a notation of the date and place of mailing or be accompanied by an unsigned copy of the affidavit or certificate of mailing." (§ 1013, subd. (b).) The statute is written in the disjunctive. Plaintiff did not comply with either disjunctive requirement.

"Section 1013 prescribes the method by which service by mail is to be made and when such service is complete; and section 1013a provides how proof of service by mail may be made." (Forslund v. Forslund (1964) 225 Cal.App.2d 476, 486 (Forslund). Service made in strict compliance with these sections creates "a presumption that service was made upon the [party served] . . . ." (Id. at pp. 486, 489.) "In the absence of any evidence sufficient to overcome the presumption, the certificate of service by mail is sufficient to establish the fact of service." (People v. Cavanaugh (1965) 234 Cal.App.2d 316, 320.)

Here, there could be no presumption because plaintiff failed to serve her supplemental responses in strict compliance with sections 1013 and 1013a. The fact of service was nevertheless established by defendants' admission that they received the responses on January 27, 2012. But that does not advance plaintiff's position, because the fact that defendants received the responses does not establish the date on which plaintiff served them. It is the date of service rather than the fact of service that is at issue here.

Where the date rather than the fact of service is at issue because of a party's failure to comply with sections 1013 and 1013a, courts put the burden on the noncomplying party to establish when service was effected. (E.g., Dobrick v. Hathaway (1984) 160 Cal.App.3d 913, 920-922.) Plaintiff failed to satisfy that burden here. The trial court gave her every opportunity to do so. The court continued the hearing on defendants' motion and scheduled an evidentiary hearing at which plaintiff could establish how and when she served her supplemental responses. Plaintiff did not call Ismert or Stein to testify. She did not testify herself, nor did she provide a sworn declaration describing when and how she served the responses. In the absence of any evidence controverting defendants' showing, we conclude that the trial court did not err in deeming plaintiff's requests to have been served by mail on January 26, 2012, the day before defendants admitted receiving them. The court properly ruled that the 45-day period for moving to compel began to run on January 26, 2012. And because there was no dispute that plaintiff served the responses by mail from Nevada, the court properly added the 10 days authorized by section 1013, subdivision (a).

Plaintiff maintains that section 1013, subdivision (a)'s 10-day extension for service by mail from outside California does not apply here. Case law is to the contrary. (California Accounts, Inc. v. Superior Court (1975) 50 Cal.App.3d 483, 487.)

Plaintiff's reliance on Silver v. McNamee (1999) 69 Cal.App.4th 269 (Silver), which she claims "specifically rejected" any such extension, is misplaced. Silver was a medical malpractice action. The issue on appeal was whether the one-year statute of limitations was tolled for 90 days by timely service on the defendant of a notice of intent to sue. (Silver, at p. 272; § 364, subd. (a).) On January 8, 1997, three days before the limitations period expired, Silver mailed two notices to the defendant's Ohio residence, one by regular mail and one by certified mail. (Silver, at p. 274.) The notice sent by certified mail was returned as unclaimed. (Ibid.) The notice sent by regular mail was not. (Ibid.) However, the defendant did not receive it until March 7 or 8, 1997. (Id. at p. 275.) Silver filed suit on March 21, 1997. (Ibid.) This was 72 days after he served the notices of intent to sue.

The defendant moved for summary judgment, arguing that the action was time-barred. The trial court granted the motion. The court concluded that the statute of limitations was not tolled because it expired before the defendant received " 'actual notice' " of Silver's intent to sue. (Silver, supra, 69 Cal.App.4th at p. 276.) In reaching this conclusion, the court construed section 1013, subdivision (a) as delaying the effectiveness of the notices for 10 days. (Silver, at p. 276.)

The Court of Appeal reversed, holding that the trial court "misperceived" section 1013, subdivision (a). (Silver, supra, 69 Cal.App.4th at p. 278.) The court explained that no case law supported the trial court's interpretation and "[i]ndeed, such interpretation contravenes the language of section 1013, subdivision (a) that expressly provides service by mail is 'complete' upon deposit in the mail." (Silver, at p. 280.) The court held that because Silver fully complied with the statutory requirements, the service by mail was complete on January 8, 1997. (Ibid.) It was not Silver's burden to show that the notice was actually received. (Ibid.) Thus, the statute of limitations was tolled for 90 days, and Silver's lawsuit was timely filed. (Ibid.)

Plaintiff cites Silver for the proposition that section 1013, subdivision (a)'s 10-day extension "is not designed to provide a ten-day bonus to the recipient where he or she actually received a document that happened to originate out-of-state." Silver says no such thing. The case does not advance plaintiff's position.

Plaintiff maintains that that "[t]he courts of this state have consistently ruled that actual receipt of discovery, motions and other noticing documents (except for service of summons) is effective service, notwithstanding defects in the proof of service." None of the cases on which she relies supports her contention that because defendants admitted that they received her responses on January 27, 2012, "they must be deemed to have been served on that date, and the 45-day period for bringing a motion to compel commenced on that date."

Contrary to plaintiff's assertion, Tobin v. Oris (1992) 3 Cal.App.4th 814 (Tobin), disapproved on another ground in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, footnote 12 is not "solid authority for the proposition that a party's discovery responses are deemed to have been served on the date that the served party's attorney actually received the responses . . . ." The issue in Tobin was whether a motion deeming RFAs admitted was properly granted where the defendant belatedly served responses before the hearing on the plaintiff's motion to compel. The Tobin court did not determine (or need to determine) that the responses were served on a particular day. It was sufficient for the court to find that service was effected "not later than" the date the defendants received them. (Tobin, at p. 826.) By contrast here, the issue is the precise date on which the clock started ticking on defendants' motion to compel. Tobin does not answer that question. The case is inapposite.

Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398 (Hupp) is inapposite for the same reason. The issue was whether Hupp was properly served with the defendant's anti-SLAPP motion at least 16 court days before the hearing, as section 1005 required. (Hupp, at p. 407.) The court held that he was, as Hupp admitted having been served by FedEx 25 court days before the rescheduled hearing. (Id. at p. 407.) Hupp does not advance plaintiff's position.

In Adaimy v. Ruhl (2008) 160 Cal.App.4th 583 (Adaimy), the court dismissed the plaintiff's appeal as untimely, rejecting his argument that the defendant's notice of entry of judgment was defective because it was served on only one of the two attorneys/law firms representing Adaimy. (Id. at pp. 587-588.) Adaimy has no application here.

The plaintiffs in Lum v. Mission Inn Foundation, Inc. (1986) 180 Cal.App.3d 967 (Lum) obtained an unfavorable arbitration decision. They filed a request for a new trial "well within" the statutorily prescribed 20-day period but failed to serve the defendants or to attach a proof of service to the request filed with the court. (Id. at p. 969.) The defendants received actual notice a week later, however, when their counsel happened to telephone the court clerk about another matter. (Ibid.) They nonetheless moved to dismiss the action based on the plaintiffs' noncompliance with former rule 1616(a) of the California Rules of Court. (Lum, at p. 970.) The trial court granted the motion. (Ibid.)

The Court of Appeal reversed, holding that the notice requirement was not jurisdictional and that its purpose had been "entirely fulfilled" where the defendants received actual notice and "candidly concede[d]" that they suffered no prejudice from the noncompliance. (Lum, supra, 180 Cal.App.3d at pp. 970, 972.)

Lum is distinguishable. One purpose of the section 1013 requirement in discovery cases is to give propounding parties a way to measure the time within which to move to compel further responses. Defendants' mere receipt of the responses here did not fulfill that purpose because it did not reveal when their time to move to compel started running. And unlike the defendant in Lum, defendants here do not "concede they were not prejudiced by the plaintiff's failure to serve them." (Lum, supra, 180 Cal.App.3d at p. 970.) On the contrary, they explain that they "most certainly would be prejudiced by the loss of their right to discovery by virtue of [plaintiff's] misguided and intentional omission of a proof of service." Lum does not advance plaintiff's argument.

Plaintiff cites Douglas v. Janis (1974) 43 Cal.App.3d 931 (Janis) and Otsuka v. Balangue (1949) 92 Cal.App.2d 788 (Otsuka) for the proposition that "[a]ctual receipt of served documents almost always trumps defects in service." But Janis did not involve defective service. The Janis court rejected a "hypertechnical" argument that a notice of entry of judgment was defective and therefore ineffectual to commence the running of the 15-day period for filing a notice of intention to move for new trial because the proof of service did not include the defendant's counsel's office suite number. (Janis, at p. 937.) Janis's counsel admitted receiving the notice in the mail, and there was no question about the date on which it was served. (Janis, at pp. 935-936.) Otsuka did not involve defective service either. In Otsuka, the court rejected a "strained technical objection" that an affidavit of service was defective and deprived the court of jurisdiction "because it recited that the papers were deposited in the mail rather than in the post office." (Otsuka, at p. 791.) There was no issue in Otsuka about when the papers were served by mail. Neither Janis nor Otsuka advances plaintiff's position.

Plaintiff cites Oats v. Oats (1983) 148 Cal.App.3d 416 (Oats) for the unremarkable proposition that " 'it is actual service which vests a court with jurisdiction to act in a matter rather than proof of service.' " The Oats court construed former rules 1615(b) and 1616(a) of the California Rules of Court to determine the date an arbitration award was served. (Oats, at p. 421.) Oats says nothing about the service of discovery responses or the time for filing a motion to compel. It has no application here.

None of the cases on which plaintiff relies supports her contention that the responses must be deemed to have been served on January 27, 2012, when defendants admitted receiving them. As defendants correctly point out, such a result would effectively convert plaintiff's failure to establish the date she served her responses by mail into personal service on a date certain. This would be an absurd result, particularly where defendants established by admissible evidence that the responses arrived in the mail from Las Vegas on January 27, 2012.

For all of the above reasons, we reject plaintiff's argument that defendants' motion to compel was untimely. It follows that her appeal, which was entirely founded on that faulty premise, also fails.

III. Disposition

The judgment is affirmed.


Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.

Summaries of

Pfeister v. City of Carmel-By-The-Sea

Mar 21, 2017
H040250 (Cal. Ct. App. Mar. 21, 2017)
Case details for

Pfeister v. City of Carmel-By-The-Sea

Case Details

Full title:JOANNA PFEISTER, Plaintiff and Appellant, v. CITY OF CARMEL-BY-THE-SEA et…


Date published: Mar 21, 2017


H040250 (Cal. Ct. App. Mar. 21, 2017)