Judge: Ashfaq G. Chowdhury, Case: 23GDCV02489, Date: 2024-07-11 Tentative Ruling


Case Number: 23GDCV02489    Hearing Date: July 12, 2024    Dept: E

Hearing Date: 07/12/2024 – 8:30am
Case No. 23GDCV02489
Trial Date: UNSET
Case Name: VARTOUHIE ACHAKIAN, an individual; v. MERCEDES-BENZ USA, LLC, A Delaware Limited Liability Company, and CALSTAR MOTORS INC., a California Corporation d/b/a CALSTAR MOTORS, and DOES 1-10, inclusive

TENTATIVE RULING – COMPEL RESPONSES

BACKGROUND
Plaintiff, Vartouhie Achakian, filed a Complaint on 11/22/2023 alleging three causes of action.

 

The first two causes of action for (1) Violation of Song-Beverly Act – Breach of Express Warranty and (2) Violation of Song-Beverly Act – Breach of Implied Warranty are alleged against Defendant, Mercedes-Benz USA, LLC.

 

The third cause of action for negligent repair is alleged against Defendant, Calstar Motors Inc., a California Corporation dba Calstar Motors.

 

RELIEF REQUESTED¿ 
“Plaintiff Vartouhie Achakian (“Plaintiff”) will, and hereby does, move for an order to compel response, without objections, to Plaintiff’s Request for Production of Documents, Set One (collectively, the “RFPs”).

 

Plaintiff brings this Motion pursuant to California Code of Civil Procedure §§ 2031.310, and 2031.320, on the grounds that Defendant failed to provide any responses to Plaintiff’s RFPs, which seek documents relevant to their claims under the Song-Beverly Consumer Warranty Act (“SBA”). Thus, Plaintiff seeks an order compelling Defendant, Mercedes-Benz USA, LLC (“MBUSA”) to produce responses, without objections, within 10 calendar days of the Court’s order.

 

Moreover, Plaintiff seeks monetary sanctions in the amount of $3,220.00, pursuant to Code of Civil Procedure §§ 2031.310, 2023,030, et seq for Defendant’s misuse and abuse of the discovery act and its failure to file any responses or production to Plaintiff’s initial set of RFPs.

 

The Motion is based upon this Notice, the following Memorandum of Points and Authorities, the Declaration of Luis Serrano, the papers on file, and upon any other matters that may be presented to the Court at the hearing.

 

No separate statement is being submitted in support of the instant Motion, as it is not required pursuant to rule 3.1345(b), of the California Rules of Court. (LAS Decl., ¶ 19.)

 

(Mot. p. 2.)

 

Procedural

 

Moving Party: Plaintiff, Vartouhie Achakian

 

Responding Party: Defendant, Mercedes-Benz USA, LLC

 

Moving Papers: Notice/Motion; Serrano Declaration; Proposed Order

 

Opposition Papers: Opposition

 

Reply: Reply; Serrano Declaration


16/21 Day Lapse (CCP § 12c and § 1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a): Ok

LEGAL STANDARD – COMPEL RESPONSES, INSPECTION DEMANDS
Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. (CCP § 2031.260(a).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the party making the demand may move for an order compelling response to the demand. (CCP § 2031.300(b).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). (CCP § 2031.300(a).) “The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2031.300(a)(1)-(2).)

Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a “meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 citing Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶¶ 8:1137 to 8:1144, pp. 8F-59 to 8F-60, ¶¶ 8:1483 to 8:1489, pp. 8H-29 to hH-30 (Weil & Brown).)

 

ANALYSIS


Plaintiff’s Moving Arguments
Plaintiff moves this Court for an order compelling full and complete responses, without objections, to Plaintiff’s Requests for Production of Documents Set One, due to Defendant, Mercedes-Benz USA, LLC’s (MBUSA) failure and outright refusal to provide any responses to Plaintiff’s written discovery requests nor responsive materials.

 

Plaintiff’s counsel, Serrano, states that the instant discovery was propounded on January 3, 2024. (Serrano Decl. ¶ 9, Ex. 1.) Serrano states that responses were due no later than February 2, 2024. (Serrano Decl. ¶ 10.) As of May 29, 2024, Serrano states that Defendant’s counsel has not served any responses nor production to Plaintiff’s initial set of RFPs (See Serrano Decl. ¶ 13.)

 

Defendant’s Opposition Arguments
Defendant’s Opposition appears to argue that either: (1) this hearing be continued for 60-75 days to investigate the issues raised in the motion, or (2) this motion be denied because Plaintiff failed to properly serve the RFPs to Defendant’s email authorized for service of pleadings and written discovery; therefore, Defendant had no obligation to provide the responses Plaintiff now seeks via its motion.

 

Continuance
Defendant first argues that the hearing on this motion be continued for 60-75 days. Defendant argues that the attorney handling the discovery and motions in this case has recently taken a leave of absence and has not been in communication with the Defendant’s firm. Defendant thus argues that its counsel has been unable to discuss the facts of the preparation and service of discovery with the handling attorney. Defendant argues that a 60-75 day continuance will provide the time necessary to investigate the status of the discovery in this case and present all relevant facts to the Court.

 

Defendant also argues:

 

It is MBUS’ contention that such circumstances provide the “substantial justification” or are the kind of “circumstances [which] make the imposition of the sanction unjust” that the California Legislature had in mind pursuant to Civil Code Section 2030.290(c). Therefore, the Court should deny Plaintiff’s requested relief – at least for the moment – and in turn continue the Motion hearing for 60-75 days.

 

(Oppo. p. 2.)

 

Court’s Discussion on Continuance
The Court does not find Defendant’s request for a 60-75 day continuance availing.

 

First, Defendant argued that the attorney handling the discovery and motions in this case recently took a leave of absence and has not been in communication with Defendant’s law firm. Because of this, Defendant explains that counsel has been unable to discuss the facts of the preparation and service of discovery with the handling attorney. The Court does not find Defendant’s excuse persuasive or compelling. It is up to Defendant’s counsel to effectively operate its own law firm so that it can diligently represent its client.

 

Second, Defendant provides no legal authority for its request for a continuance. Defendant cites § 2030.290(c) which pertains to interrogatories, and the instant motion pertains to RFPs. Further, even if this motion pertained to interrogatories, § 2030.290(c) addresses the issue of sanctions when compelling responses to interrogatories. CCP § 2030.290(c) does not address what the legal standard is for granting or denying a continuance on a motion to compel responses to RFPs.

 

Failing to Properly Serve the RFPs
Defendant argues that the subject discovery requests were not properly served, thus it did not owe a response.

 

Defendant argues as follows:

 

California Rules of Court, Rule 2.251 states: “When a document may be served by mail, express mail, overnight delivery, or fax transmission, the document may be served electronically under Code of Civil Procedure section 1010.6”. “Electronic service” under Civ. Proc. Code section 1010.6 “means service of a document, on a person, by either electronic transmission or electronic notification. “‘Electronic transmission,’” in turn, “means the transmission of a document by electronic means to the electronic service address at or through which a person receives electronic service.” Section 1010.6(a)(1)(B) (emphasis added). Similarly, “‘Electronic notification’” means “the notification of the person that a document is served by sending an electronic message to the electronic address at or through which the person receives electronic service, specifying the exact name of the document served, and providing a hyperlink at which the served document may be viewed and downloaded.” Section 1010.6(a)(1)(C).

 

Electronic service is only effective under the Code if the service is to the electronic service address which the receiving party has agreed to be served. That was not done. In this case, the “electronic service address” is MBUSA@clarkhill.com.” Plaintiff cannot produce evidence that he served the MBUSA@clarkhill.com email address, the correct email account. In the Proof of Service dated January 3, 2024, Noel Castellon of Plaintiff’s law firm declares under penalty of perjury that Castellon served the subject discovery “BY ELECTORNIC MAIL” to several addresses, none of which was MBUSA@clarkhill.com. (Hom Decl., ¶ 3, Ex. A.)

 

While it is correct that Plaintiff and MBUSA had an agreement to accept service by e-mail, by and through counsel, that agreement required Plaintiff to serve any such documents to the email address “MBUSA@clarkhill.com.” Any documents not served to “MBUSA@clarkhill.com” falls outside of the e-service agreement and is not proper service. This is not a valid service address for MBUSA in this case. (Hom Decl., ¶ 4.)

 

Plaintiffs’ counsel knew that all service by e-mail must be sent to the email address MBUSA@clarkhill.com. The current motion to compel, for instance, was served on May 29, 2024, on MBUSA@clarkhill.com. The agreement of the parties to accept service by e-mail did not change between January 3, 2024, when Plaintiff served the discovery requests, and May 29, 2024, when Plaintiff served the present motion. Plaintiff’s counsel knew and understood what email addresses needed to be served and failed to serve the correct email box – MBUSA@clarkhill.com – when they served the subject discovery. That failing is fatal to the instant Motion because it demonstrates that the subject discovery was not properly served, and no responses were required. (Hom Decl., ¶ 5.)

 

Plaintiffs’ Requests for Production of Documents were not properly served pursuant to C.C.P. section 2031.080(a), and MBUSA was not obligated to respond.

 

(Oppo. p. 2-4.)

 

Court’s Discussion on Failing to Properly Serve the RFPs
Defendant cites to CRC, rule 2.251 without specifying which subsection of 2.251 it is citing. It appears as if Defendant is citing to a portion of 2.251(a) which states in relevant part, “When a document may be served by mail, express mail, overnight delivery, or fax transmission, the document may be served electronically under Code of Civil Procedure section 1010.6[.]” (Cal. Rules of Court, Rule 2.251(a).)

 

The Court notes that Defendant’s citation to 2.251(a) is not particularly helpful. Defendant argued that Plaintiff served the wrong e-mail address, but Defendant’s citation provides no help on how the Court is determine what the proper service address is for any given party.

 

Defendant also cited to CCP § 1010.6(a)(1)(B) and 1010.6(a)(1)(C). These citations are also unhelpful to the Court.

 

As stated in CCP § 1010.6(a):

 

(a) A document may be served electronically in an action filed with the court as provided in this section, in accordance with rules adopted pursuant to subdivision (h).

(1) For purposes of this section:

(A) “Electronic service” means service of a document, on a person, by either electronic transmission or electronic notification. Electronic service may be performed directly by a person, including a party, by a person’s agent, including the person’s attorney, or through an electronic filing service provider, and by a court.

(B) “Electronic transmission” means the transmission of a document by electronic means to the electronic service address at or through which a person receives electronic service.

(C) “Electronic notification” means the notification of the person that a document is served by sending an electronic message to the electronic address at or through which the person receives electronic service, specifying the exact name of the document served, and providing a hyperlink at which the served document may be viewed and downloaded.

(D) “Electronic filing” means the electronic transmission to a court of a document presented for filing in electronic form. For purposes of this section, this definition of electronic filing concerns the activity of filing and does not include the processing and review of the document and its entry into the court’s records, which are necessary for a document to be officially filed.

 

(CCP § 1010.6(a)(1)(A)-(D).)

 

Defendant argues that “Electronic service is only effective under the Code if the service is to the electronic service address which the receiving party has agreed to be served.” (Oppo. p. 3.) As a preliminary matter, the Court points out that Defendant provided no legal authority for this argument.

 

Defendant then concedes that Plaintiff and MBUSA had an agreement to accept service by e-mail and that that agreement required Plaintiff to serve documents to the email address MBUSA@clarkhill.com. Defendant argues that since Plaintiff’s counsel knew that all service by e-mail must be sent to MBUSA@clarkhill.com, and since the discovery was not served to MBUSA@clarkhill.com, the subject discovery was not properly served and no responses were required.

 

While Defendant bolded specific portions of § 1010.6(a)(1)(B) that stated, “to the electronic service address at or through which a person receives electronic service,” this citation does not address how the Court is to determine what is the proper electronic service address.

 

Further, even if the Court were to assume the truth of Defendant’s argument, which Defendant provided no legal authority for, that electronic service is only effective under the Code if the service is to the electronic service address which the receiving party has agreed to be served, Defendant does not come forward with proof of any type of agreement that shows where the parties agreed to be electronically served. Defendant’s counsel’s declaration simply stated in relevant part, “While it is correct that Plaintiff and MBUSA had an agreement to accept service by email, by and through counsel, that agreement required Plaintiff to serve any such documents to the email address “MBUSA@clarkhill.com.”" (Hom Decl. ¶ 4.)

 

Opposition also argues that Plaintiff served the instant motion to the correct email address, as opposed to the discovery at issue, because Plaintiff’s counsel knew and understood what email address needed to be served. Opposition argues that even though the instant motion was served at the proper email address on 5/29/2024, when Plaintiff previously served the discovery on January 3, 2024, nothing between January 3, 2024 and 5/29/2024 changed with the parties’ agreement, thus, Opposition appears to be implying that Plaintiff knew the proper service email address all along. However, this argument doesn’t help the Court assess how it is to determine what the proper email service address of the parties is.

 

Therefore, the Court will hear argument on what Defendant is attempting to assert with respect to CCP § 1010.6(a)(1).

 

 

Plaintiff’s Reply Arguments
Court’s Discussion on Improper Address for Opposition
Plaintiff’s Reply points out that the Opposition was served at the wrong e-service address.

 

Here, the Court finds this argument of no significance. First, the Reply clearly indicates that it received the Opposition. Second, the Reply fails to explain how the Opposition being served on the wrong address warrants the Court to grant Plaintiff’s motion.

 

The Court will consider the Opposition.

 

Court’s Discussion on CCP § 1010.6 and CRC, rule 2.251
Plaintiff’s Reply argues that when Defendant, a represented party, filed its Answer on December 21, 2023, Defendant affirmatively consented to e-service under Section 1010.6 et seq. and Rule 2.251(b)(1)(B). For the reasons explained below, the Court will explain the problems it had analyzing Plaintiff’s arguments that the instant discovery was in fact properly served.

 

Plaintiff states in Reply:

 

Rule 2.251(c)(1) of the California Rules of the Court, expressly provides that “[a] court may require parties to serve documents electronically in specified civil actions by local rule or court order, as provided in Code of Civil Procedure section 1010.6 and the rules in this chapter.”

 

(Reply, p. 5.)

 

Here, the Court fails to understand Plaintiff’s argument. CRC, Rule 2.251(c)(1) states, “ A court may require parties to serve documents electronically in specified civil actions by local rule or court order, as provided in Code of Civil Procedure section 1010.6 and the rules in this chapter.” (CRC, Rule 2.251(c)(1).) The Court fails to understand Plaintiff’s argument because 2.251(c)(1) does not address how the Court is to determine what the proper email address is for the parties to be served at.

 

Plaintiff also stated in Reply:

 

Section 1010.6 of the Code of Civil Procedure provides that “documents filed by represented parties in all limited, unlimited, and complex civil actions must be filed electronically and allow for service electronically, unless the Court excuses parties from doing so. Although not required, self-represented parties are encouraged to participate in electronic filing and service. If a party with a fee waiver files documents electronically, that party is exempt from the fees and costs associated with electronic filing.” Thus, contrary to MBUSA’s position, Rule 2.251 et seq. confirms that service of Plaintiff’s initial set of discovery was properly on effected on December 21, 2023. (Serrano Decl., ¶ 7, Ex. 1.)

 

(Reply, p. 5.)

 

Here, again the Court fails to understand Plaintiff’s argument. First, Plaintiff does not specify which subsection of 1010.6 that Plaintiff is quoting from, and the Court is unclear as to which subsection of 1010.6 Plaintiff is quoting from. Further, whatever legal authority Plaintiff is attempting to cite, Plaintiff’s argument does not address the issue of how the Court is to determine the proper electronic service address for the parties.

 

Plaintiff also stated in Reply:

 

Section 1010.6 of the Code of Civil Procedure, made effective January 1, 2023, works in conjunction with Rule 2.251 of the California Rules of the Court, which, together, unequivocally authorizes electronic service as an appropriate medium of service for parties that have appeared in action and are represented by counsel for which the Court requires mandatory e-filing under 1010.6(h), without requiring any prior consent. In fact, 1010.6(b)(2), expressly confirms that “[a] person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.” Notably, the statutory scheme’s only reference to prior consent to e-service is embodied in subdivision (c)(1-2). However, this is limited to “unrepresented part[ies],” which MBUSA’s Answer confirms it is not.

 

In any event 1010.6(c)(3)(ii), provides that affirmative consent to e-service of even non-represented parties can be established “through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service.”

 

(Reply, p. 5, ln. 19-28, - p. 6. ln. 1-4.)

 

The Court has several problems with Plaintiff’s arguments.

 

First, Plaintiff cites to § 1010.6(b)(2) which states, “ A person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.” (Ibid.) Problematic with Plaintiff’s argument is that its citation does not address how the Court is to determine the proper service address of the parties.

 

Second, Plaintiff cites to § 1010.6(c)(1)-(2). The Court does not find Plaintiff’s citation to § 1010.6(c) availing. Although Plaintiff argues that the statutory scheme’s only reference to prior consent to e-service is embodied in 1010.6(c)(1)-(2), that does not appear to be the case. CCP § 1010.6(c) “applies to electronic service by consent of an unrepresented person in a civil action.” Here, the Defendant that Opposed this motion is not an unrepresented person. Further, while Plaintiff argues the only reference to prior consent to e-service is embodied in § 1010.6(c)(1)-(2), 1010.6(b)(3) seems to be more on point as it pertains to represented parties and what must be done before first serving electronically.

 

Therefore, overall with respect to the Reply’s arguments on  p. 5, ln. 19-28, - p. 6. ln. 1-4 , the Court does not find the arguments availing because it does not provide legal authority that addresses the issue that is before this Court, i.e., how the Court is to determine what the proper service address is.

 

Further, while the Reply on page 5, ln. 19-28 cites § 1010.6(b)(2), the Reply fails to cite § 1010.6(b)(3), which appears as if it would have been helpful to the Court.

 

As stated in § 1010.6(b):

 

(b) (1) This subdivision applies to mandatory electronic service. The court may order electronic service on a person represented by counsel who has appeared in an action or proceeding.

(2) A person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

(3) Before first serving a represented person electronically, the person effecting service shall confirm the appropriate electronic service address for the counsel being served.

(4) A person represented by counsel shall, upon the request of any person who has appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting person with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

 

(CCP § 1010.6(b)(1)-(4).)

 

Therefore, 1010.6(b)(2) appears relevant because the Defendant opposing this motion seems to have appeared on 12/21/2023 when its counsel filed an Answer. Further, what the Reply failed to cite to was 1010.6(b)(3) which stated, “Before first serving a represented person electronically, the person effecting service shall confirm the appropriate electronic service address for the counsel being served.” (Ibid.)

 

Here, the Reply does not address § 1010.6(b)(3). Under § 1010.6(b)(3), it appears as if Plaintiff was to confirm the appropriate electronic service address for the counsel being served; however, the Reply does not address this. The Court will hear argument.

 

Reply also states:

 

Rule 2.251(b)(1)(B) sets forth the means by which a party may manifest express consent to eservice, specifically providing that “[m]anifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party’s electronic service address with that consent for the purpose of receiving electronic service. A party or other person may manifest affirmative consent by serving notice of consent to all parties and other persons and either: (i) Agreeing to the terms of service with an electronic filing service provider, which clearly states that agreement constitutes consent to receive electronic service; or (ii) Filing Consent to Electronic Service and Notice of Electronic Service Address (form EFS-005-CV). (See also, Cal. Rules of Court, rule 2.253, subds. (b)(1)-(6) [conditions for mandatory e-filing set forth by local rule.)

 

Here, because Defendant, a represented party, electronically filed its Answer, on December 21, 2023, it has affirmatively consented to e-service under Section 1010.6 et seq. and Rule 2.251(b)(1)(B). (Serrano Decl. ¶ 7, Ex. 1.) Moreover, Plaintiff properly effectuated service on Defendant’s counsel of record after Defendant’s Answer was electronically filed with Court. (Serrano Decl. ¶¶ 7-9.) Moreover, Plaintiff’s electronic service of the RFPs was made on the attorneys listed on the first page of Defendant’s Answer. (Id. ¶ 9.) What’s more, Defendant failed to list their electronic service address of MBUSA@clarkhill.com on their both their email when they electronically served their Answer on Plaintiff’s counsel and the first page of the Answer itself

 

Consequently, Plaintiff’s service of RFPs unequivocally occurred electronically on January 3, 2024; rendering Defendant’s tactics to delay discovery as a bad faith stratagem designed to obstruct Plaintiff’s efforts to conduct meaningful discovery.

 

(Reply, p. 6, ln. 5-24.)

 

The Court has several issues with the arguments asserted in the Reply on page 6, lines 5-24.

 

Plaintiff cites to CRC, rule 2.251(b)(1(B) to argue that by Defendant electronically filing an Answer, and by Defendant listing several email addresses on said Answer, the email addresses listed on the Answer demonstrate that Defendant affirmatively consented to be electronically served documents at the email addresses listed on said Answer. The Court does not find this argument availing because 2.251(b)(1)(B) does not say anything about how the email addresses listed on an Answer determine where a party can receive electronic service.

 

For the sake of clarity, the Court will cite CRC, rule 2.251(b) in full below:

 

(b) Electronic service by express consent

(1)  A party or other person indicates that the party or other person agrees to accept electronic service by:

(A)  Serving a notice on all parties and other persons that the party or other person accepts electronic service and filing the notice with the court. The notice must include the electronic service address at which the party or other person agrees to accept service; or

(B)  Manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic service address with that consent for the purpose of receiving electronic service. A party or other person may manifest affirmative consent by serving notice of consent to all parties and other persons and either:

(i)  Agreeing to the terms of service with an electronic filing service provider, which clearly states that agreement constitutes consent to receive electronic service; or

(ii)  Filing Consent to Electronic Service and Notice of Electronic Service Address (form EFS-005-CV).

(2)  A party or other person that has consented to electronic service under (1) and has used an electronic filing service provider to serve and file documents in a case consents to service on that electronic filing service provider as the designated agent for service for the party or other person in the case, until such time as the party or other person designates a different agent for service.

 

(CRC, rule 2.251(b)(1)-(2).)

 

Although Plaintiff’s Reply argues that 2.251(b) shows that Defendant can be served at the email addresses listed on the Answer because the Answer was electronically filed, the Court fails to see how Plaintiff arrives at such a conclusion based on 2.251(b).

 

Therefore, both parties should be prepared to address all aspects of CRC, rule 2.251(b) at the hearing. For example, both parties should be prepared to address if 2.251(b)(1) or 2.251(b)(2) is applicable here. Further, if the parties think 2.251(b)(1) is applicable, they need to explain if 2.251(b)(1) has been met by either 2.251(b)(1)(A) or 2.251(b)(1)(B).

 

Further, the Court notes that eCourt lists counsel for MBUSA as Brian Hom. On eCourt, Brian Hom’s email address is listed as bhom@clarkhill.com. The discovery at issue here was in fact served at bhom@clarkhill.com. CRC, Rule 2.251(b)(1)(B) states, “Manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic service address with that consent for the purpose of receiving electronic service.” Here, it would be helpful for the Court if Defendant came forward with any documents it filed/signed with the electronic service provider when initially filing its Answer. The instant discovery was served at the email address that Defendant’s counsel provided on eCourt; however, it is unclear as to what email address Defendant’s counsel provided to the electronic filing service provider as the email address that it consents to for the purpose of receiving electronic service. Further, the parties should be prepared to address 2.251(b)(2) because (b)(2) addresses how a party can consent to service on the electronic filing service provider. Likewise, Defendant alleged it had an agreement to be electronically served at MBUSA@clarkhill.com; therefore, Defendant should be prepared to come forward with this alleged agreement.

 

Court’s Discussion on Additional Arguments in Reply
On page 2 of the Reply, Plaintiff points out that nowhere in the Opposition nor the accompanying Brian Hom Declaration does MBUSA claim it was not in possession or had not received Plaintiff’s discovery. Reply points out how the declaration only points out that service was improper. Reply argues that it is thus safe to assume that MBUSA received the discovery.

 

The Court notes that while it is true that the Opposition and the Hom Declaration fail to state that it never received the discovery, the problem with the Reply’s argument is it fails to explain how this argument is legally relevant. This argument seems to be rooted in the common sense argument that Defendant must have received the discovery because Defendant’s declaration did not state that it did not receive the discovery. However, this does not help the Court because Plaintiff does not explain how this argument is legally relevant for determining the ruling on this motion.

 

On page 2 of the Reply, Plaintiff also argues that MBUSA cited no applicable statutory authority to support its position that it did not have to respond to the discovery because the service address was improper. Here, the Court will hear argument.

 

TENTATIVE RULING OVERALL
The Court will hear argument. Both parties should be prepared to address all issues the Court noted in its Analysis section. Both parties should be prepared to address CCP § 1010.6(b)(3) and CRC, Rule 2.251(b)(1)-(2). Further, both parties should be prepared to come forward with any alleged agreements on service, or any documents filed/signed with the Court’s electronic filing service provider that either party would need to prove its argument.

 

If the Court were to find that the instant discovery was properly served, the Court notes that Opposition did not address the merits of Plaintiff’s motion. Therefore, it would appear as if the Court could compel responses to Plaintiff’s Requests for Production of Documents, Set One, since Defendant has not provided any responses, much less timely responses. Further, Defendant’s argument on a request for a continuance is unavailing.

 

But to take a step back for a moment from the minutiae of e-service procedures, the Court is aware that the parties before the Court handle matters together frequently. The parties appear in this Department almost daily on various matters.

 

It is well accepted in the case law and elsewhere that discovery is primarily meant to be dealt with by counsel, corresponding and discussing the issues that arise with each other in good faith and with a spirit of professionalism.

 

To require the parsing of various statutes and Rules of Court regarding electronic service on discovery matters such as this one—if disputes like this one became commonplace—would literally bring the calendar in this Department to a grinding halt. 

 

For perspective, imagine a member of the public reading this tentative decision. Besides having their eyes glaze over, that imagined member of the public would perhaps justifiably ask themselves what was going on in the courts the taxpayers were funding? Thirteen pages of small type about email addresses?

 

In any event, in the interests of efficiency, the parties are encouraged to attempt, as best they can, to talk to each other and work out issues like service and confirming receipt of discovery requests and other items with professional courtesies such as a follow up telephone call or email. Simple follow-up steps like these could potentially save the parties and the Court unnecessary expenditure of resources on contretemps such as the one presented in this motion.

 

 

Sanctions - Inspection Demands

In relevant part, § 2031.300(c) states as follows:

Except as provided in subdivision (d), the court shall 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 a response to a demand for inspection, copying, testing, or sampling, 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 § 2031.300(c).)

 

“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(a).)

Plaintiff seeks monetary sanctions in the amount of $3,220.00.

Plaintiff bases its sanctions request on the following:

• Draft Plaintiff s meet and confer letter regarding Defendant’s lack of responses to Plaintiff’s Requests for Production of Documents, Set One. – .5 of an hour

• Draft Plaintiff’s Notice of Motion and Motion to Compel Further Responses to Requests for Production of Documents, Set One. – 3 hours

• Draft Declaration in Support of Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents, Set One. – 1 hour

• Anticipated time to review Defendant’s Opposition to Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents, Set One, and Draft Plaintiff’s Reply Brief. – 2.5 hours;

• Anticipated time to prepare for, and attend, the hearing regarding Motion to Compel Further Responses to Requests for Production of Documents, Set One. – 1 hour;

• Filing fee - $60.00

(Serrano Decl. ¶ 16.)

Plaintiff’s counsel also states his billable rate is $395.00 per hour. (See Serrano Decl. ¶ 17.)