Judge Alison Mackenzie, Case Number: BC633176, Date: 2023-12-20 Tentative Ruling

Judge: Alison Mackenzie, Case: BC633176, Date: 2023-12-20 Tentative Ruling

Case Number: BC633176 Hearing Date: December 20, 2023 Dept: 55

NATURE OF PROCEEDINGS: Defendant And Counterclaimant Steve Nguyen’s Motion To Compel Further Responses To Post Judgment Interrogatories, Set One To Judgment Debtor, Kevin Lamb; Defendant And Counterclaimant's Motion To Compel Further Responses To Demand For Production Of Documents, Set One To Judgment Debtor, Kevin Lamb.

Tentative:

The motion to compel further interrogatory responses is denied. Plaintiff/Judgment Debtor Kevin Lamb’s (“Lamb”) request for sanctions is denied, the Court finding substantial justification. E.g., CCP § 2023.030.

The motion to compel further responses to the document requests and production of documents is granted. On or before 1/22/24, Lamb shall serve further responses, and produce documents, in full compliance with the California Discovery Act, CCP §2016.010 et seq., as to all requests for documents addressed in the separate statement. On or before 1/22/24, Lamb shall pay discovery sanctions in the requested sum of $10,800.00 to Defendant and Cross-Complainant Steve Nguyen (“Nguyen”), the Court finding the absence of substantial justification. E.g., CCP § 2023.030.

On 8/15/22, the Court entered a stipulated judgment for Lamb to pay Defendant and Cross-Complainants $274,000. After Lamb defaulted on payment, Nguyen served Lamb with post-judgment interrogatories and requests for production. Nguyen then filed a motion to compel Lamb to further respond to post-judgment interrogatories set forth in the separate statement served 9/15/22, pursuant to CCP Sections 708.010 and 708.020, and to be awarded sanctions in the amount of $10,800.00 against Lamb. Nguyen also filed a motion to compel further responses to requests for production of documents set forth in the separate statement, as to Lamb, and to be awarded sanctions in the amount of $10,800.00 against Lamb.

MOTION RE: INTERROGATORIES

Interrogatory responses must consist of (1) the information sought, (2) an exercise of a valid option to produce writings, or (3) an objection. CCP §2030.210. If interrogatory responses lack specificity, then parties may move to compel further responses under Code of Civil Procedure Section 2030.300(a), providing for motions to compel, where parties deem that an answer is evasive, incomplete, or inadequate as to specification of documents.

A motion to compel further discovery responses cannot be granted based on the reason that verified answers served are suspect or really untrue. Holguin v. Sup. Ct. (1972) 22 Cal.App.3d 812, 820, 821. There is no statutory requirement for respondents to correct untruthful discovery responses, but instead an intentional failure to amend the responses creates the risks of prosecution for perjury, or monetary sanctions. Guzman v. General Motors Corp. (1984)154 Cal. App. 3d 438, 442-43 n. 4. A respondent cannot be compelled to admit a fact in discovery, even where its truth is obvious. Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 634; Smith v. Circle P Ranch Co. (1978) 87 Cal. App. 3d 267, 273. The service of willfully false discovery responses is not covered by the current version of the Civil Discovery Act. Saxena v. Goffney (2008) 159 Cal.App.4th 316, 333.

Nguyen’s separate statement repeatedly and improperly questions the truthfulness of the substantive responses and objections given, based on suspicious documents and information, but that is not a legitimate basis to grant a discovery motion. While the Court finds that there is no basis to order further responses, the Court concludes Nguyen had substantial justification to seek to compel further responses based on Lamb’s conflicting responses. Lamb’s request for sanctions therefore is denied.

MOTION RE: DOCUMENTS

A document response must consist of: 1) an agreement to comply, stating whether the productions or inspection will be allowed “in whole or in part,” and that all documents or things in the possession, custody or control of the respondent, as to which no objection is made, will be included, by the date set for inspection (unless informally extended in writing, or the designated timing is subject to objection); 2) a representation of inability to comply, with a specification of any person believed or known to have possession of documents; or, 3) objections and specification of withheld documents. CCP §§2031.210(a), 2031.220, 2031.270, 2031.280. Compliance includes all documents or things in the demanded category that are in the “‘possession, custody, or control’” of the responding party, such as from other corporations. Roche v. Hyde (2020) 51 Cal.App.5th 757, 813 (quoting CCP § 2031.220).

With regard to document requests, a response expressing an inability to comply shall state that a diligent search and reasonable inquiry was made to locate the items, and the reason for an inability to comply, including that the item never existed, was lost or stolen, was destroyed, or is not in respondent’s possession, along with the identity and address of anyone believed to have the document. CCP §2031.230. “Even where a party deems a demand to be objectionable, he [she, or it] still must identify those items which fall into the category of item in the demand to which an objection is being made.” Standon Co. v. Sup. Ct. (1990) 225 Cal. App. 3d 898, 901 n.3.

No basis exists for compelling documents pursuant to a “certificate of compliance” that Lamb provided during meeting and conferring, because there is no such motion aspect in the Discovery Act. A motion to compel compliance as agreed with a request for production of documents is based upon a showing that the respondents failed “to permit an inspection ‘in accordance with that party's statement of compliance.’" Standon Co. v. Sup. Ct. (1990) 225 Cal. App. 3d 898, 903. See also CCP §2031.320(a). Compliance is to be indicated in the discovery responses. CCP §§2031.210(a), 2031.220, 2031.270, 2031.280.

Here, the many document request responses by Lamb do not fully comply with the Discovery Act. The responses repeatedly indicate that documents in respondent’s possession would be produced, but such statements do not specify a whole or partial production, or any inability to comply along with a statement that a diligent search and reasonable inquiry was made and the reason for an inability to comply with the identity and address of anyone believed to have the document.

Also, as to objections, Lamb has not identified any items that fall into the requested category of documents.

Therefore, the motion is granted as to the document requests. The Court also awards sanctions because Lamb’s opposition was not substantially justified.