Judge: Andrew E. Cooper, Case: 23CHCV03527, Date: 2025-02-05 Tentative Ruling

Case Number: 23CHCV03527    Hearing Date: February 5, 2025    Dept: F51

Dept. F-51

Date: 2/5/25

Case #23CHCV03527

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION TO COMPEL FURTHER DISCOVERY RESPONSES

Motion filed: 9/13/24

MOVING PARTY: Plaintiff Apolonio Lopez Chavez (“Plaintiff”)

RESPONDING PARTY: Defendant Citibank, N.A.. (“Defendant”)

NOTICE: NOT OK (misstates the amount of monetary sanctions sought)

RELIEF REQUESTED: An order compelling Defendant’s further responses to Plaintiff’s Requests for Production of Documents (“RFPs”), Set One, No. 16. Plaintiff also seeks monetary sanctions to be imposed against Defendant and/or its counsel in the amount of $3,000.00.

TENTATIVE RULING: The motion is granted. Defendant to provide further responses to Plaintiff’s RFP No. 16 within 20 days. The Court imposes sanctions against Defendant in the amount of $550.00, payable within 45 days.

BACKGROUND

In this action, Plaintiff alleges that he is a victim of identity theft, and that Defendants “continue to unlawfully collect a fraudulent debt from Plaintiff” despite knowledge thereof. (Compl. ¶ 2.) Plaintiff further alleges that Defendants refused “to provide Plaintiff with which of his personally identifiable information was used to apply for credit.” (Id. at ¶ 3.)

On 11/17/23, Plaintiff filed his complaint, alleging against Defendants the following causes of action: (1) California Identity Theft Act; (2) Rosenthal Fair Debt Collection Practices Act; and (3) Penal Code 530.8. On 12/27/23, Defendant filed its answer.

On 3/8/24, Plaintiff served its first set of discovery requests on Defendant. (Decl. of Nicholas Barthel ¶ 4.) On 4/23/24, Defendant served its responses thereto. (Id. at ¶ 7.) On 7/18/24, Defendant served supplemental responses to Plaintiff’s discovery requests. (Id. at ¶ 12.)

On 9/13/24, Plaintiff filed the instant motion to compel further responses to RFP No. 16. On 1/23/25, Defendant filed its opposition. On 1/28/25, Plaintiff filed his reply.

ANALYSIS

California law requires a responding party to respond to each request for production of documents with either a statement of compliance, a representation that the party lacks the ability to comply, or an objection to the demand. (Code Civ. Proc. § 2031.210, subd. (a).) A propounding party may move for an order compelling further response to a discovery request if it decides that “an objection in the response is without merit or too general.” (Code Civ. Proc. § 2031.310, subd. (a).) Here, Plaintiff seeks to compel Defendant’s additional responses to RFP No. 16.

A.    Meet and Confer 

A motion to compel further discovery responses must be accompanied by a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2031.310, subd. (b)(2); 2016.040.) 

Here, Plaintiff’s counsel declares that counsel for the parties met and conferred regarding Defendant’s responses to Plaintiff’s discovery requests, but were unable to resolve the dispute. (Barthel Decl. ¶¶ 14–16.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirement under Code of Civil Procedure section 2031.310, subdivision (b)(2).

B.     RFP No. 16

Here, Plaintiff’s RFP No. 16 seeks “All logs detailing mail Defendant received at PO BOX 6241 SIOUX FALLS SD, 57117 in September 2023.” (Pl.’s Sep. Stmt. 2:7–8.) In response, Defendant asserted objections based on ambiguity, relevance, and privacy. (Id. at 2:17–24.) “Subject to and without waiving the foregoing objections, Responding Party responds as follows: The only correspondence associated with Propounding Party’s account, which was dated October 28, 2021, was previously produced to Propounding Party.” (Id. at 2:25–27.)

Plaintiff argues that the requested documents are relevant because as an element of Plaintiff’s third cause of action under Penal Code 530.8, Plaintiff is required to submit to Defendant a request for records as part of an investigation of identity theft. (Pl.’s Mot. 3:24–26, citing Pen. Code § 530.8, subd. (a).) Plaintiff argues that by virtue of its substantive response to RFP No. 16 stating that it did not receive Plaintiff’s alleged mail request, “Citibank has put this is element at issue and the logs showing what mail was Citibank received during the relevant time is likely to assist in proving or disproving this element.” (Id. at 4:3–4, citing Compl. ¶ 53.)

Defendant argues in opposition that “it was only after Plaintiff filed this motion that Citi was able to conclude its investigation and confirm that it is unable to locate the requested logs. A second supplemental response has been served to Plaintiff in this regard.” (Def.’s Opp. 1:27–2:2.) Plaintiff argues in reply that Defendant’s supplemental response stating that “it no longer is in possession of the documents that are being sought” “is still deficient as it does not comply with California Code Civil Procedure § 2031.230.” (Pl.’s Reply 1:9–11.)

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.)

As Plaintiff argues, if Defendant’s supplemental response is effectively a statement of inability to comply, “Defendant must clarify whether [the documents] either (1) never existed; (2) were destroyed; (3) lost, misplaced, or stolen; or (4) has never been, or is no longer, in the possession, custody, or control of the responding party. If the logs are in the possession of a third party, then Defendant CCP § 2031.230 requires that Defendant provide the … name and address of the party that has possession.” (Pl.’s Reply 2:9–13.)

Based on the foregoing, the Court grants Plaintiff’s motion to compel further responses to RFP No. 16.

C.    Monetary Sanctions

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2031.310, subd. (h).) Additionally, “the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030, subd. (a).)

Here, Plaintiff requests $2,365.00 in monetary sanctions against Defendant and/or its counsel, which encompasses 4.3 hours of Plaintiff’s attorney’s time spent preparing the motion, at counsel’s hourly billing rate of $550.00 per hour. (Barthel Decl. ¶¶ 17–20.) In granting the instant motion, the Court finds it reasonable to award Plaintiff monetary sanctions in the amount of $550.00 against Defendant.

CONCLUSION

The motion is granted. Defendant to provide further responses to Plaintiff’s RFP No. 16 within 20 days. The Court imposes sanctions against Defendant in the amount of $550.00, payable within 45 days.