Judge: Armen Tamzarian, Case: 21STCV12906, Date: 2022-10-25 Tentative Ruling

Case Number: 21STCV12906    Hearing Date: October 25, 2022    Dept: 52

4/5/21: Plaintiff Manal Fernandez filed a complaint against defendants Signal Hill Pet Hospital, Mirette Attalla, and Ragi Boctor for 15 causes of action, including sexual assault, FEHA claims, Labor Code claims, and unfair competition.

Plaintiff worked as an office manager at Signal Hill Pet Hospital.  Attalla and Boctor own the pet hospital.  Attalla sexually assaulted plaintiff numerous times by touching her breasts and sitting on her lap.  Plaintiff complained to Boctor, and he refused to do anything to help.

Motion

Attalla:

           Attalla’s responses to Nos. 64-74 all have boilerplate objections.  Other than objections, the only response is “Defendant will meet and confer with Plaintiff over the relevance and scope of this request.”  The responses are deficient and evasive.  Attalla should pay $2,800 in sanctions.

Boctor, Set Two:

Boctor’s responses to Nos. 65-86 make boilerplate objections followed by one of these two substantive responses: (1) “Defendant will meet and confer with Plaintiff over the relevance and scope of this request”; or  (2) “If Plaintiff will narrow its request, Defendant will attempt to respond.”  These are not valid responses.  Boctor should be sanctioned $3,800.

Boctor, Set Three:

Boctor’s responses to 87-94 make the same boilerplate objections and invalid responses.  Boctor should pay $2,800 in sanctions.

Joint Statement

On October 11, 2022, the parties filed a joint IDC statement.  Defendants served supplemental responses before then, but we do not have them. 

Attalla:

The documents Attalla produced “in Exhibits 64, 68, and 69 do not include date stamps.”  Defendant should include information about the date the communications occurred.

Attalla’s supplemental responses to 65, 66, 67, 70, 71, and 72 state “No documents responsive to this request exist within Responding Party’s possession.”  That is not a valid statement of inability to comply under CCP § 2031.230.

Boctor, Set Two:

Boctor’s supplemental responses to Nos. 71 and 77-84 have the same invalid statement of inability to comply.

Boctor, Set Three:

           Same for Boctor’s supplemental response to No. 89. 

Opposition: None

Reply: None

Discussion

There is little need to delve into the details.  Some requests seem overly broad, but defendant never bothered to file an opposition or say anything about them in the joint statement.  It is troubling, though, that we do not have a copy of the supplemental responses. 

Tentative Ruling:  

Plaintiff Manal Fernandez’s Motions to Compel Further Responses: (1) By Mirette Attalla to Requests for Production, Set Two; (2) By Ragi Boctor to Requests for Production, Set Two; and (3) By Ragi Boctor to Requests for Production, Set Three

Plaintiff Manal Fernandez filed a motion to compel defendant Mirette Attalla to serve further responses to requests for production, set two, Nos. 64-74. 

Plaintiff filed motions to compel defendant Ragi Boctor to serve further responses to requests for production, set two, Nos. 65-86 and to requests for production, set three, Nos. 87-91, 93, and 94.

           In the joint informal discovery conference statement filed on October 11, 2022, plaintiff states she seeks further supplemental responses by Attalla to request Nos. 66, 67, 70, 71, and 72 and by Boctor to request Nos. 71, 77-84, and 89 for the same reason.  Each response states, “No documents responsive to this request exist within Responding Party’s possession.” 

A party propounding requests for production may move to compel further responses when “[a] representation of inability to comply is inadequate, incomplete, or evasive.”  (CCP § 2031.310(a)(2).)  “A representation of inability to comply … 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.”  (CCP § 2031.230.)

Defendant Attalla’s and defendant Boctor’s responses do not include all representations required under CCP § 2031.230.  They state only that no responsive documents “exist within Responding Party’s possession.”   They do not state defendants made a diligent search and reasonable inquiry to comply, do not state why they cannot comply, and do not identify any person or organization believed to have possession, custody, or control of responsive documents.

Defendants did not oppose any of plaintiff’s three motions.  In the joint informal discovery conference statement, they did not address the requests for production.  They only stated their position regarding plaintiff’s mental health examination.  Plaintiff is entitled to further supplemental responses containing an adequate representation of inability to comply.

Additional Documents

           In the joint IDC statement, plaintiff argues defendant Attalla should produce additional responsive documents in response to Nos. 64, 68, and 69 because the documents produced “do not include date stamps.”  (Joint IDC Statement, p. 3.)  This issue is not properly before the court.  Plaintiff did not move to compel production of additional documents under CCP § 2031.320.  Plaintiff only moved to compel further written responses to the requests for production under CCP § 2031.310.

Sanctions

           Plaintiff moves for $2,800 in sanctions against Attalla, $3,800 in sanctions against Boctor for the motion regarding requests for production, set two, and $2,800 in sanctions against Boctor for the motion regarding requests for production, set three.  “Making an evasive response to discovery” is an abuse of the discovery process subject to monetary sanctions.  (CCP § 2023.010(f).)  Defendant made evasive representations of inability to comply in response to plaintiff’s requests for production.  The court finds defendants did not act with substantial justification and sanctions are just under the circumstances.

           Plaintiff did not, however, reasonably incur the full amount of sanctions claimed.  Plaintiff seeks fees for reviewing defendants’ oppositions and drafting replies, but no oppositions or replies were filed.  The court finds plaintiff reasonably incurred fees of $1,400, $2,900, and $1,400 on the three motions.

Disposition

           Plaintiff Manal Fernandez’s motion to compel defendant Mirette Attalla to serve further responses to requests for production, set two, is granted.  Defendant Attalla is ordered to provide further verified responses to request Nos. 66, 67, 70, 71, and 72 within 20 days.  Defendant Attalla is ordered to pay plaintiff $1,400 in sanctions within 20 days.

           Plaintiff’s motion to compel defendant Ragi Boctor to serve further responses to requests for production, set two, is granted.  Defendant Boctor is ordered to provide further verified responses to request Nos. 71 and 77-84 within 20 days.  Defendant Boctor is ordered to pay plaintiff $2,900 in sanctions within 20 days.

Plaintiff’s motion to compel defendant Ragi Boctor to serve further responses to requests for production, set three, is granted.  Defendant Boctor is ordered to provide a further verified response to request No. 89 within 20 days.  Defendant Boctor is ordered to pay plaintiff $1,400 in sanctions within 20 days.