Judge: Anne Richardson, Case: 23STCV11470, Date: 2024-01-10 Tentative Ruling

Case Number: 23STCV11470    Hearing Date: April 3, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Green Commuter, Inc. (Green Commuter) sues Defendant GreenPower Motor Company, Inc. (GreenPower Motor), San Joaquin Valley Equipment Leasing, Inc. (San Joaquin), and Does 1 through 100 pursuant to an August 17, 2023, First Amended Complaint alleging claims of (1) Breach of Contract, (2) Breach of Contract, (3) Breach of Contract, (4) Breach of Contract, (5) Conversion, (6) Unjust Enrichment, (7) Intentional Interference with Contractual Relations, and (8) Violation of California’s Unfair Competition Law § 17200, et seq.

The claims arise from the following allegations, as summarized by the FAC. “Beginning in early 2019 Green Commuter began dealings with Green Power acquiring Electric vehicles (EV)s for rental to Green Commuter’s customers and in some cases provided EV service contracts and other services to Greenpower and Greenpower’s customers. The dealings between Green Commuter and Greenpower were often complex and multi-faceted. As of 2022, the parties had four ongoing contracts with one another, each related to the sale, lease or service of various electric vehicles. Ultimately, Greenpower and its wholly owned or otherwise related finance arm San Joaquin Leasing, breached each of the agreements and unlawfully failed to deliver 10 EVs, repossessed 18 EVs, refused orders and denied the right to provide vehicle service for 21 EVs and refused to deliver another 29 EVs to customers of Green Commuter. These actions constitute breach of 4 written contract agreements. Defendants also committed various intentional torts, including but not limited to, conversion, interference with contractual relations, unfair competition and were unjustly enriched by their actions, among other things.”

On January 11, 2024, the Court overruled an opposed September 20, 2023, demurrer by GreenPower and San Joaquin as to the Complaint’s eighth cause of action for unfair competition but sustained that demurrer without leave to amend as to the Complaint’s sixth cause of action for unjust enrichment. The Court otherwise ruled that a motion to strike component of the demurrer was procedurally defective.

B. Relevant Procedural History

On or about September 21, 2023, Green Commuter served various discovery requests on San Joaquin, including Requests for Production of Documents (RPDs) Set One, Requests for Form Interrogatories (FROGs), Set One, and Requests for Special Interrogatories (SROGs), Set One.

On November 13, 2023, San Joaquin served unverified responses to RPDs, Set One.

On November 16, 2023, Green Commuter’s counsel sent a meet and confer letter to San Joaquin’s counsel requesting verifications and a complete set of production.

San Joaquin did not respond to that communication.

On November 27, 2023, Green Commuter’s counsel again followed up, seeking to meet and confer regarding verifications and document production.

San Joaquin did not respond to that communication.

On November 30, 2023, San Joaquin served verifications and some document production.

On December 1, 2023, counsel for the parties met and conferred regarding further production, with counsel for San Joaquin promising further production by December 8 and 15, 2023.

San Joaquin did not produce documents according to the December 1st promise.

C. Motion Before the Court and Protective Orders

On January 4, 2024, Green Commuter filed a motion to compel further responses to RPDs, Set One, Nos. 1-40.

On January 30, 2024, Green Commuter filed a stipulation and proposed protective order concerning discovery and confidentiality, which remains unsigned.

On February 13, 2024, Green Commuter filed a stipulation and protective order executed that same day by the parties to this action.

On February 14, 2024, the Court signed the February 13, 2024, proposed protective order.

On March 20, 2024, San Joaquin filed an opposition to Green Commuter’s motion.

On March 26, 2024, Green Commuter filed a reply to San Joaquin’s opposition.

Green Commuter’s motion is now before the Court.

The Court notes that while the parties had disputes as to whether RPDs, Set One, also involved GreenPower Motor, the moving papers note at page 2 that the motion does not involve GreenPower.

II. Motion to Compel Further Production and Responses and for Sanctions

A. Meet and Confer: SATISFIED.

A motion to compel further production must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(1).) A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.)

San Joaquin’s opposition challenges the meet and confer efforts preceding Green Commuter filing its motion, which Green Commuter disputes. (Opp’n, pp. 3-4; Reply, p. 3.)

Here, the Court determines that sufficient evidence of meet and confer efforts exists, as shown by counsel’s declaration and email exhibits. (Mot., Cohen Decl., ¶ 12, Ex. G; see Mot., Cohen Decl., ¶¶ 5-11.)

B. Motion to Compel Further Production and Responses: GRANTED.

1. Legal Standard

A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (See Code Civ. Proc., § 2031.310, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)

To request further production, a movant must establish: (1) good cause for the production (Code Civ. Proc., § 2031.310, subd. (b)(1); Sinaiko, supra, at p. 403); and (2) that a further response is needed because (a) the responding party’s statement of compliance with the demand to produce is incomplete Code Civ. Proc., § 2031.310, subd. (a)(1)), (b) the responding party’s representation that it is unable to comply is inadequate, complete, or evasive (Code Civ. Proc., § 2031.310, subd. (a)(2)), (c) the responding party’s objection in the response is without merit or is too general (Code Civ. Proc., § 2031.310, subd. (a)(3); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (Code Civ. Proc., § 2031.310, subd. (e)).

2. Analysis

a. Production Requests at Issue

The production requests at issue are RPD, Set One, Nos. 1-40. (Mot., Separate Statement, pp. 2-34.)

b. San Joaquin’s Nov. 13, 2023, Initial Objections and/or Responses to RPDs, Set One

i. Responses with Substantive Content to RPDs, Set One

San Joaquin provided substantive initial responses to 38 requests in RPDs, Set One, as follows. (Mot., Separate Statement, RPDs, Set One, Nos. 1-27, 30-40.)

(1) Subject to various objections, statements of compliance—the sufficiency of which is challenged by the opposition—promising to produce the documents requested. (Mot., Separate Statement, RPDs, Set One, Nos. 1-2, 4, 6-15-17, 24-26, 31, 33, 35-38.)

(2) Subject to various objections, a response indicating there was no repossession of the “Ten Electric Vehicles,” where the subject of the request does not always involve simply ten electric vehicles, e.g., at RPDs, Set One, No. 18. (Mot., Separate Statement, RPDs, Set One, Nos. 18-20, 27, 31.)

(3) Subject to various objections, a response indicating that San Joaquin had not filed any civil action against the State of California based on Green Commuter’s conduct. (Mot., Separate Statement, RPDs, Set One, Nos. 30.)

(4) Subject to various objections, a response indicating that San Joaquin did not manufacture duplicate Vehicle Identification Numbers (VINs). (Mot., Separate Statement, RPDs, Set One, Nos. 32-34.)

(5) Technically an objection, a response indicating that San Joaquin is unable to respond based on a lack of specificity as to a specifically referenced written aGreenent in the request. (Mot., Separate Statement, RPDs, Set One, Nos. 3, 5, 21-23, 39-40.)

Only San Joaquin’s responses to RPDs, Set One, Nos. 28-29 were objection-only responses. (Mot., Separate Statement, RPDs, Set One, Nos. 28-29.)

ii. Objections to RPDs, Set One

San Joaquin provided various objections to RPDs, Set One, Nos. 1-40, as follows.

(1) The failure to define the term at issue renders the request vague, ambiguous, and confusing. (Mot., Separate Statement, RPDs, Set One, Nos. 1-15, 18-40.)

(2) The request seeks information protected by the attorney client privilege or work product doctrine or are protected as confidential mediation communications between Responding Party and the State of California. (Mot., Separate Statement, RPDs, Set One, No. 1-10, 12-27, 29-40.)

(3) The request seeks information that can be obtained by Plaintiff from public sources as readily as by Responding Party, for which reason this information will not be provided. (Mot., Separate Statement, RPDs, Set One, Nos. 1-40.)

(4) The capitalized term “Electric Vehicles” in certain requests causes confusion with the terms actually defined in RPDs, Set One, for “Ten Electric Vehicles.” (Mot., Separate Statement, RPDs, Set One, Nos. 5, 22, 40.)

(5) San Joaquin is unable to respond based on a lack of specificity as to a specifically referenced written aGreenent in the request. (Mot., Separate Statement, RPDs, Set One, Nos. 3, 5, 21-23, 39-40.)

The responses include a privilege log for the attorney client, work production, and mediation objections raised in response to RPDs, Set One. (Opp’n, Johnson Decl., Ex. D, p. 26; see Mot., Separate Statement, RPDs, Set One, No. 1-10, 12-27, 29-40.)

iii. Verifications

San Joaquin served verifications for the above initial responses to RPDs, Set One, on November 30, 2023. (Mot., Cohen Decl., ¶ 9, Ex. E.)

The Court notes that the responses to RPDs, Set One, Nos. 1-27 and 31-40, were not operative until November 30, 2023, when verifications were provided, because unverified responses are tantamount to no responses at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [rule stated in relation to admission requests]; see Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 654-658 [“The only situation in which lack of verification could both render the response untimely and result in a waiver of objections under [now § 2031.290, subd. (a), former section 2031,] subdivision (k) is when the initial unverified response contains no objections[,] [a]nd in a different factual vein, subdivision (k) could result in a waiver of objections if the party fails to file any response within the statutory time period”].)

The objections were properly stated as of service because counsel signed the objections. (Code Civ. Proc., § 2031.250, subds. (a), (c); Opp’n, Johnson Decl., Ex. D, p. 25 [responses]; Mot., Cohen Decl., ¶ 6 [confirming service but attaching incorrect exhibit as Exhibit B, i.e., not San Joaquin’s responses, but production requests from Defendants to Green Commuter].)

Though a motion to compel further responses is required whenever timely objections without responses are asserted (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 136), whether any such motion to compel further responses should be subject to time limitations is not clear (id. at p. 136, fn. 5 [deferring the discussion regarding the possibility of an “absurd result” if there is no time limit on a motion to compel involving objections]), though such a limitation does not appear applicable on the plain language of the statute. (Code Civ. Proc., § 2031.310, subd. (c) [“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand,” emphasis added]; cf. Code Civ. Proc., §§ 2031.250, subd. (a), (c) [no verified response required for objections, which only require attorney signature].)

As a result, statutorily, a 45-day timeframe to compel further responses to RPDs, Set One, Nos. 1-27 and 31-40 was triggered on November 30, 2023, and no such timeframe is applicable to compel further responses to RPDs, Set One, Nos. 28-29.

However, the parties ultimately agreed to set the deadline for this motion to January 4, 2024. (Mot., Cohen Decl., ¶ 12, Ex. G.)

iv. Nov. 30, 2023, Production

On November 30, 2023, San Joaquin served some supplemental production in relation to RPDs, Set One, but this production is not attached to the moving papers. (Mot., Cohen Decl., ¶ 9, Ex. E.)

The relevant communications show San Joaquin represented that it was “working on getting [Green Commuter’s counsel] two sets of additional documents: (1) ‘external’ documents, such as the vouchers from HVIP, VIN records from NHTSA, and title records from DMV, which we are targeting to produce by next Friday [Dec. 8, 2023]; and (2) ‘internal’ documents such as emails, which we are targeting to produce by the following Friday [Dec. 15, 2023].” (Mot., Cohen Decl., ¶ 10, Ex. F.)

v. Parties’ Arguments

In its motion, Green Commuter argues that the vagueness, ambiguity, confusion, and equal access objections are without merit because the production requests are clear and because San Joaquin does not point Green Commuter to the public information source that is equally available. Green Commuter also argues that the responses to RPDs, Set One, are not narrowly tailored to the requests at issue, showing, for example, the inconsistency between the subject matter in RPDs, Set One, No. 18, and San Joaquin’s response to it. Last, Green Commuter argues that the “statements of compliance” served by San Joaquin in response to certain of the requests in RPDs, Set One, do not properly comply with the form required of statements of compliance in Code of Civil Procedure section 2031.220. (Mot., pp. 6-9.)

Green Commuter’s separate statement addresses only some of the stated objections in the November 13, 2023, responses (relevance, vagueness, ambiguity, and confusion), while failing to address others (privileges). (Mot., Separate Statement, pp. 2-34 at Statements of Insufficiency.)

In opposition, San Joaquin first notes that the moving papers incorrectly attach the wrong document as representing San Joaquin’s November 13, 2023, responses to RPDs, Set One, i.e., attach a discovery request from Defendants to Green Commuter, not the reverse. San Joaquin then argues the merit of its objections, attempting to highlight vagueness and lack of clarity in the production requests. San Joaquin adds that it has not refused to comply with discovery inasmuch as it is simply directing Green Commuter to search public sources for the public records sought by RPDs, Set One. Next, San Joaquin argues in essence that the statement of compliance argument puts form over substance where the responses are sufficiently clear and agree to produce documents subject to stated objections. Last, San Joaquin notes its good faith efforts at production while simultaneously noting that it has located over 20 thousand responsive documents but has not produced those documents because while they are responsive to RPDs, Set One, such discovery is vaguely stated, and, where this objection is raised, production should not occur until RPDs, Set One, are clarified to lack ambiguity. (Opp’n, pp. 3-7.)

San Joaquin’s separate statement briefly elaborates the stated objections. (Opp’n, Separate Statement, pp. 1-37 at Statements of Sufficiency.)

In reply, Green Commuter argues the relevance of the sought-after discovery. Green Commuter also argues that undue burden has not been established as to San Joaquin and that the statements of sufficiency in the opposition separate statement exhibit a lack of good faith, which focus on demurrer style arguments against RPDs, Set One—vagueness—rather than discovery merit. Green Commuter next argues that it is not clear to Green Commuter to what extent San Joaquin has produced relevant discovery because the statements of compliance here do not state “whether the documents exist, [San Joaquin] produced them fully or partially and what objections … [San Joaquin] actually stand[s] on.” In support, Green Commuter cites the Code’s provision establishing that objections must be stated with particularity in identifying documents to which objections are raised and explaining the grounds for those objections. Last, Green Commuter argues reasons against the opposition position that San Joaquin has done its best to produce documents in this action, noting that a protective order is in place in this action to protect unwarranted disclosure. (Reply, pp. 1-6.)

vi. Court’s Determination

The Court finds in favor of Green Commuter.

I. Objections

The Court notes that there is no vagueness, ambiguity, or confusion in RPDs, Set One. Even the use of the undefined term “eighteen Electric Vehicles” is clarified to mean vehicles repossessed by San Joaquin. (See Mot., Separate Statement, RPDs, Set One, No. 31.) From this context, the clarity of the references to eighteen electric vehicles becomes clear. The requests for agreements or documents related to agreements are sufficiently clear as to whether the requests involve all or specific contracts between identified parties. (See, e.g., Mot., Separate Statement, RPDs, Set One, Nos. 1-3, 15, 21-23, 39-40.) This objection thus fails.

The attorney-client, work product, and mediation privileges raised by San Joaquin were not properly challenged in the moving papers, separate statement, or reply, nor was the privilege log in the November 13, 2023, responses, for which reason this objection has merit that has not been overcome by Green Commuter.

The Court does not credit the objection of equal access, i.e., documents being equally available to Plaintiff. The opposition and its separate statement do not sufficiently elaborate on an undue burden in relation to this equal access (see Code Civ. Proc., § 2019.030, subds. (a)-(a)(2)), and the scope of discovery does not have an equal access limitation. (Code Civ. Proc., § 2017.010.)

II. Substantive Arguments

Here, though the Court is not clear on the extent of production on December 1, 2023, this motion was nevertheless brought on January 4, 2024, indicating that the production was not, to Green Commuter, sufficiently responsive to any of RPDs, Set One, Nos. 1-40.

Moving to the merits, the Court notes that the information sought here is discoverable based on its relevance to the allegations in the FAC. As summarized by the reply: “The responses and documents at issue in the present motion are important, discoverable, non-privileged documents including communications with the State of California, records of vouchers and other obviously relevant and discoverable documents. Further, [San Joaquin] does not dispute the relevancy and importance of the documents to this matter as [San Joaquin] promised on December 1, 2023[,] that it would produce its internal emails and records with NHTSA. Not once prior to the filing of this motion did [San Joaquin] raise a point regarding specificity of VIN numbers, and any burdensome arguments. [San Joaquin] now states, without verification or declaration, that a search returned 20,000 emails relating to Electric Vehicles; however, any objection on that basis was waived since no burdensome objection was ever raised prior to [Green Commuter]’s filing of the motion on January 4, 2024. To the contrary, [San Joaquin] willingly agreed to produce the documents when [San Joaquin]’s responses to Green Commuter’s RFPs state in part that [San Joaquin] ‘will produce’ emails, documents related to payment vouchers from California’s Hybrid and Zero-Emission Truck and Bus Voucher Incentive Project (‘HVIP’), VIN records from National Highway Traffic Safety Administration (‘NHTSA’), and registration and title records from the Department of Motor Vehicles (‘DMV’).” (Reply, p. 2.)

The reply’s position that San Joaquin itself has represented that it has tens of thousands of relevant documents to RPDs, Set One, as stated, is clear on the face of the opposition and is not followed by sufficient arguments of undue burden. (See Opp’n, pp. 6-7.)

Given that the information sought here is relevant and given that the dispositive objections stated by San Joaquin are insufficient, the Court finds that further production is appropriate.

Plaintiff Green Commuter’s motion is thus GRANTED as to compelling further production to RPDs, Set One, No. 1-40.

The Court notes that any further production responses that involve either statements of compliance or denials and similar representation must comply with Code of Civil Procedure sections 2031.220 and 2031.230.

The Court also notes that there has been no attorney-client, work product, or mediation privilege waiver, and that these objections were properly raised. (Mot., Separate Statement, RPDs, Set One, No. 1-10, 12-27, 29-40 [privileges raised]; Opp’n, Johnson Decl., Ex. D, p. 26 [privilege log].)

C. Sanctions: GRANTED, in part.

1. Legal Standard

Except in certain circumstances involving electronic stored information, the court must impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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).)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

2. Analysis

Here, the Court finds that monetary sanctions are warranted based on the above discussed failure by San Joaquin to provide valid responses to an authorized method of discovery: RPDs, Set One. (Code Civ. Proc., §§ 2023.010, subd. (d).)

The Court also determines that sanctions are proper in the amount of $3,331.64, comprised of a reasonable fee rate of $690 per hour for Jeffrey Cohen and $390 per hour for an associate, four hours reasonably spent by the associate drafting this motion, half an hour reasonably spent by Jeffrey Cohen reviewing that work, two hours to draft a reply and 1.5 hours to prepare for and attend the hearing at a rate of $390, not $430 per hour, plus a filing fee of $61.64. (Mot., Cohen Decl., ¶ 14 [providing basis for this discussion and seeking $4,896.64].)

The Court notes that sanctions are only sought against San Joaquin, not counsel. (Mot., p. 2, ¶ 3.)

Sanctions are thus GRANTED, in part, in the amount of $3,331.64.

III. Conclusion

A. Further Production

Plaintiff Green Commuter, Inc.’s Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents, Set One, is GRANTED.

Defendant San Joaquin Valley Equipment Leasing, Inc. is ORDERED to serve Code-compliant responses, which may raise valid attorney-client, work product, or mediation privilege objections, if applicable, in relation to Requests for Production of Documents, Set One, Nos. 1-40, within 21 calendar days of this order.

B. Sanctions

Plaintiff Green Commuter, Inc.’s Motion for Sanctions in the Amount of $4,896.64 is GRANTED, in part, in the amount of $3,331.64.

Defendant San Joaquin Valley Equipment Leasing, Inc. is ORDERED remit payment to Plaintiff Green Commuter, Inc. within 21 calendar days of this order.