Legal Question in Business Law in California

A Los Angeles, Calif attorney gave some advice online to a party in a lawsuit stating "if defendants did not file an Answer, discovery requests have to be personally served on them". I have never heard of this and can't find it in California Code of Civil Procedure. Cany anyone confirm this and if so cite statutory authority or case law or local rule for this, if true?


Asked on 8/14/10, 8:08 pm

2 Answers from Attorneys

Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

If the defendants don't answer, it either means that the plaintiff is entitled to entry of default and a default judgment, in which case there should be no need to serve discovery; or it means the plaintiff's request for a default judgment will be rejected because the plaintiff is a pro per who doesn't know what he is doing.

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Answered on 8/19/10, 8:49 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

The attorney's statement is a "non sequitur." The conclusion does not follow from the premise.

In addition to the possibilites mentioned by Mr. Stone (with which I agree), if the defendants did answer in pro. per., discovery should be served on them, and if an attorney filed an answer for them, discovery must be served on the attorney.

A defendant that has not answered is not a party. If you need discovery from a non-party, including a defaulting defendant, you are limited as to methods of discovery - you can subpoena documents and/or depose them, all under different rules than apply to discovery from a party.

However, a plaintiff in such a position needs to exercise sound, legally-informed reasoning in deciding whether to take the defendant's default, pursue discovery, or both, and in what sequence. Often, it may be best to take the default, get a default judgment, and then if that does not dispose of the entire case, subpoena the person.

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Answered on 8/19/10, 9:49 pm


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