Judge Armen Tamzarian, Case Number: 22STCV32334, Date: 2023-09-14 Tentative Ruling

Judge: Armen Tamzarian, Case: 22STCV32334, Date: 2023-09-14 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 22STCV32334 Hearing Date: March 14, 2024 Dept: 52

Plaintiff/Cross-Defendant Bosley Properties, LLC’s Motion to Compel Defendant William J. Beverly to Comply with CCP § 2031.280(a) with Regards to His Production of Documents

Plaintiff/cross-defendant Bosley Properties, LLC moves to compel defendant William J. Beverly to comply with Code of Civil Procedure section 2031.280 as to the documents he produced in response to requests for production Nos. 7-9, 14-15, 17-24, 37, 38, 45, 47-51, 54, 55, 59, 73, and 74. Section 2031.280(a) provides, “Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.”

Beverly produced documents on a flash drive containing “(1) documents Bates Nos. WJB000001-WJB000632; and (2) a folder entitled ‘Beverly Emails with Partners, etc.’ which consisted of 4,593 pages of documents contained in nine (9) separate sub-folders.” (Brown Decl., ¶ 5.) Beverly’s responses properly identified some of the documents with the specific request number to which they respond. For example, to No. 1, he responded, “[T]his Responding Party states that he has conducted a reasonably diligent search of his records and files and submits the documents Bates Stamp numbered WJB000231 to WJB000347 as responsive to this request.” (Brown Decl., Ex. 2, p. 3.)

Beverly did not properly identify the documents responsive to the subject requests. For example, No. 22 demanded, “All DOCUMENTS that REFER OR RELATE to COMMUNICATIONS between YOU and TANNER from January 1, 2022 to the present, that evidence, reference or discuss the removal of BOB BOSLEY and/or BURGLUND as a MANAGING GENERAL PARTNER of MDA.” (Brown Decl., Ex. 1, p. 9.) Initially, Beverly responded, “[T]his Responding Party states that he has conducted a reasonably diligent search of his records and files and has located and submits the emails contained on the Flash Drive submitted concurrently with this response as partially responsive to this request.” (Id., Ex. 2, p. 12.)

Later, Beverly served a supplemental response stating, “All emails exchanged between the Responding Party and Jim Tanner are set forth on the Flash Drive in the folders identified as Centeno.2022, Centeno.2023, Chuck Giovino, Kim Miyake, Pamela Love, Lee Ouye, and Ron Hegge. I am not aware of any emails specifically addressing the subject of this Request, and have no personal knowledge as to whether such exists or ever existed. The language of the prior response was due to the overly broad nature of the Request which seeks all Documents which may ‘evidence’ the main object of the Request. This Answering Party suggests that the documents identified may contain information or documents, the contents of which could be considered by the requesting party to be covered by this Request in a remote way based upon a most expansive interpretation. Producing Party believes that this is unlikely, however, in the interest of full disclosure, and in an attempt to thoroughly comply with the request, such documents were included and referenced as part of the response. In short, no documents have been withheld: on the contrary, some documents may be superfluous.” (Brown Decl., Ex. 6, p. 14.)

Producing more documents than Beverly believed responded to the request serves an interest in full disclosure. Nothing prevents a party from producing a broader variety of documents than those demanded by specific requests for production. (See CCP § 2016.090(a)(1)(B) [procedure for initial disclosure of all documents “that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, or that is relevant to the subject matter of the action”].) But doing so is not what the Civil Discovery Act requires for responding to requests for production under section 2031.010, et seq. The responding party must state that the request for production “will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (CCP § 2031.220.) When producing the documents, they “shall be identified with the specific request number to which the documents respond.” (CCP § 2031.280(a).)

Request No. 22 asked for communications between Beverly and Tanner about a specific subject. It was not proper to produce every email between Beverly and Tanner regardless of the subject. If Beverly is “not aware of any emails specifically addressing the subject of this Request, and ha[s] no personal knowledge as to whether such exists or ever existed,” the proper response was “[a] representation of inability to comply with the particular demand” under Code of Civil Procedure section 2031.230. For example, that is how Beverly responded to request No. 73. (Brown Decl., Ex. 6, p. 27.) If, on the other hand, Beverly possesses emails about the subject requested, he must produce them and label them as given in response to request No. 22 (and any other request Nos. to which they respond).

The verified statements of compliance themselves need not identify the specific documents produced in response. (Pollock v. Superior Court of Los Angeles County (2023) 93 Cal.App.5th 1348, 1358 (Pollock) [“There is no requirement that a response identify a document with the specific request to which the document applies”].) Instead, the documents produced “shall be identified with the specific request number to which [they] respond.” (CCP § 2031.280(a).) Doing so is more efficient because often the same documents will respond to multiple requests for production. Though Bates numbering is not required (Pollock, supra, 93 Cal.App.5th at p. 1358), that is a common and effective way to identify documents. A responding party may comply by Bates stamping the documents and “providing a … table that listed by Bates number which documents applied to which requests.” (Id. at p. 1359.)

Here, one method of complying would be: (1) Bates numbering the 4,953 pages of emails, (2) categorizing those pages into separate email threads identified by subject line and ranges of Bates numbers (e.g., subject “Removing managers”, pages 00800-00805), and (3) for each email thread, specifying that it responds to request Nos. X, Y, and Z.

Sanctions

Bosley Properties, LLC moves for monetary sanctions against Beverly and his counsel. “[T]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with 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.” (CCP § 2031.320(b).)

Beverly acted with substantial justification. Beverly made reasonable arguments supporting the position that he complied with Code of Civil Procedure section 2031.280(a). There is no single correct way to comply. And Beverly acted in good faith in attempting to disclose all documents relevant to this action.

Disposition

Plaintiff/cross-defendant Bosley Properties, LLC’s motion to compel defendant William J. Beverly to comply with Code of Civil Procedure section 2031.280(a) in his production of documents is granted. Defendant Beverly is ordered to identify the documents produced by the specific request number(s) to which they respond, as described above, within 30 days.